[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Rules and Regulations]
[Pages 15483-15486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7243]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DC 13-1-6552a; FRL-5177-7]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; Disapproval of New Source Review Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision
submitted by the District of Columbia pertaining to the regulation of
major new and major modified sources in the District of Columbia. The
intended effect of this action is to disapprove the District of
Columbia regulations because they do not meet the requirements of the
Clean Air Act. This action is being taken under section 110 of the
Clean Air Act.
DATES: This action will become effective May 23, 1995 unless adverse
comments are received on or before April 24, 1995. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs (3AT00), 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 the
District of Columbia Department of Consumer and Regulatory Affairs,
2100 Martin Luther King Ave, SE., Washington, DC 20020.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at
the EPA Region III address.
SUPPLEMENTARY INFORMATION: On June 21, 1985 and October 22, 1993, the
District of Columbia submitted a formal revision to its State
Implementation Plan (SIP). Only the portions of those submittals
pertaining to the permitting of new sources is being addressed in this
rulemaking. The SIP submittal being addressed consists of District of
Columbia Municipal Regulations (DCMR) Title 20, Sections 199
(definitions--only those pertaining to the permitting of new sources),
200, 201, 202 and 204 (permitting), and 299 (reference to the
applicability of definitions in Section 199).
The District of Columbia (the District) is part of the Washington
D.C. ozone nonattainment area, which includes portions of Maryland and
Virginia. Washington D.C. is a nonattainment area classified as serious
for ozone and moderate for carbon monoxide and, as such, is required to
implement certain requirements including those pertaining to the
permitting of major new and major modified sources. The Clean Air Act
required that areas such as the District submit adopted regulations
applying to the permitting of these major sources by no later than
November 15, 1992. In addition, section 184 of the Clean Air Act
requires that [[Page 15484]] areas located in the ozone transport
region, of which the District is a part, submit a new source review
program applicable to major new and major modified sources. The Act
defines major sources in serious ozone nonattainment areas as those
with the potential to emit greater than or equal to 50 tons per year of
VOC or NOx emissions. Therefore, although section 184 requires that
areas in the ozone transport region (OTR) define major sources as those
with the potential to emit greater than or equal to 50 TPY VOC or 100
TPY NOx emissions, the more stringent major source threshold of 50 TPY
for serious ozone nonattainment areas supersedes the OTR requirement.
The Act requires that moderate carbon monoxide (CO) nonattainment
areas, such as the District, control its new CO sources with potential
emissions greater than or equal to 100 TPY and its major modified
sources where potential emissions were increasing by greater than 40
TPY. On July 6, 1993, EPA made a finding that the District failed to
submit the required new source review regulations and started the 18
month sanctions clock under section 179 of the Act. On October 22,
1993, the District submitted the required regulations, which were
subsequently determined by EPA to be complete and stopped the sanctions
clock.
Summary of SIP Revision
The District of Columbia submittals include more than the required
construction permitting program for major new and major modified
sources required under section 182 of the Act. Sections 200, 201, 202,
and 204 of the DCMR regulations apply to both major and minor sources
and to sources wishing to obtain construction or operating permits.
Section 299 is an administrative section stating that the definitions
in Section 199 apply to Chapter 2. Section 199 contains the definitions
applicable to all of the District's regulations. Those definitions
contained in Section 199 that apply to the permitting program, and
which are the subject of this rulemaking action, are: actual emissions,
allowable emissions, begin actual construction, commence, complete,
emissions unit, federally enforceable, major modification, major
stationary source, modification, necessary preconstruction approvals or
permits, net emissions increase, new source, potential to emit,
shutdown, significant, and stationary source.
The DC regulations at Sections 200, 201, 202, and 204 include a
number of deficiencies that make the submittal unapprovable. The two
most significant flaws are the lack of public notice and comment
requirements for proposed new sources, and the existence of a provision
in the regulation that would allow the Mayor to grant temporary permits
on a month by month basis, allowing circumvention of the entire NSR
regulation. The requirement for providing public notice and comment on
all major new source and major modified source permits is contained in
40 CFR part 51. The District's regulation does not provide such
required public notice and comment. These two flaws alone are so
significant as to warrant disapproval of the District's 1985 and 1993
NSR SIP submittals. The other deficiencies include the lack of clarity
in requiring consistency of emission offsets with the RFP baseline, the
determination of the amount of emission offsets required (separate
summation of VOC and NOX emissions for offset purposes), location
of emission offsets, timing of the enforceability of the emission
offsets, creditability of emission offsets relative to other Clean Air
Act requirements, the definition of stationary source as it pertains to
nonroad engines, a provision that allows circumvention of the offset
requirement (Section 204.9), and the de minimis provisions of section
182(c)(6).
The District's regulations at Section 200.11 also include an
exemption for fuel-burning equipment, which has a capacity of 5 million
or less BTU per hour (mmBTU/hr) of heat input and, which uses for fuel
only gaseous fuels or distillate oils. This exemption is not approvable
because the Act, as amended in 1990, requires that states with ozone
nonattainment areas control major sources of nitrogen oxides (NOX)
as well as volatile organic compounds (VOCs). In the District, a major
source of VOC or NOX is defined as that which has the potential to
emit 50 tons per year or more. Fuel burning equipment are sources of
NOX emissions and while an individual piece of equipment with a
capacity of 5 mmBTU/hr heat input would likely not generate emissions
greater than 50 TPY potential emissions, a group of such sources at a
single facility could generate emissions over the major source size
threshold. If the District wishes to exempt any group of NOX
sources that would be considered major, it must apply for and receive a
waiver under section 182(f) of the Act. EPA's guidance on the criteria
for approval of NOX exemptions under section 182(f) is contained
in EPA documents including, ``Guideline for Determining the
Applicability of Nitrogen Oxide Requirements under Section 182(f)'',
December 1993 and subsequent memoranda. The District has not made a
petition under section 182(f) but even if it had, EPA could not approve
the exclusion of major NOX sources from RACT requirements until
approval of such petition under section 182(f) were granted.
Several citations to the Clean Air Act in Section 204 of the DCMR
regulation are incorrect. Any updated references to the Act, as amended
in 1990, should reflect the appropriate provisions pertaining to new
source permitting program requirements in sections 172, 173, and other
relevant sections of the Act.
The District regulations applicable to major new and major modified
sources also do not contain the de minimis and special modification
provisions of sections 182(c) (6), (7) and (8) of the Act. These
provisions apply to sources locating in serious and severe ozone
nonattainment areas. Section 182(c)(6) is a de minimis provision that
requires that a source undergoing modifications determine whether those
modifications are major by summing its net emission increases over a 5-
year consecutive period, including the calendar year in which the
increase occurred. If the sum of the emission increases exceeds 25 TPY
over that period, the modification is considered major. Sections 182(c)
(7) and (8) apply to such sources that have exceeded the 25 ton
threshold but wish to avoid the otherwise applicable new source review
requirements. Section 182(c)(7) would allow sources with potential
emissions of less than 100 TPY to obtain 1.3 to 1 internal offsets to
avoid new source review, or else to install best available control
technology (BACT) instead of LAER technology. Section 182(c)(8) would
allow sources with potential emissions of more than 100 TPY to obtain
1.3 to 1 internal offsets in order to avoid the installation of LAER
technology. The District must adopt a regulation that reflects the
requirements of section 182(c)(6) but may choose not to adopt the
provisions in sections 182(c) (7) and (8). The consequence of simply
adopting the de minimis provisions of section 182(c)(6) but not (c)(7)
or (c)(8) is that the overall effect would be to make the District
requirements more stringent than the Act. Since the Act allows for
state regulations to be more stringent, this would be acceptable to
EPA.
The District regulations pertaining to major new and major modified
sources also do not clearly require that VOC and NOX emissions are
to be summed separately to determine applicability and the required
amount of emission offsets. In addition, emission offsets are not
explicitly required to be federally [[Page 15485]] enforceable prior to
permit issuance. The District must, at a minimum, require that VOC and
NOX emission offsets be obtained for the same pollutant and that
these emission offsets be made federally enforceable prior to permit
issuance. The separate summation of VOC and NOX emissions for
offset purposes is a required clarification. If the District elects not
to require the separate summation of VOC and NOX emissions for
applicability purposes and does not permit the netting of emissions in
order to determine NSR applicability, this would be more stringent than
the federal requirements and would be considered acceptable to EPA. If,
however, the District chooses to allow netting, a separate summation of
VOC and NOX emissions for both applicability and offset purposes
is required. In addition, Section 204.9 of the District's regulation
appears to provide sources with the ability to circumvent the offset
requirements in Section 204.4. The District must delete this provision.
The District regulation is not limited to a major new or major
modified source construction permit program. The applicability of the
District regulation (Chapter 2) includes major source operating permits
and minor source construction and operating permits. This raises
additional issues that do not pertain to the required submittal under
section 182 or 184 of the Act. Submittal of a major source operating
permit program or a minor source construction and operating permit
program is not a requirement under section 182 or 184 of the Act.
Therefore, lack or disapproval of such submittals will not result in
sanctions under section 179 pertaining to failure to submit or adopt
regulations required under section 182 or 184. Likewise, the District's
submittal of a major source operating permit program or a minor source
construction or operating permit does not fulfill the District's
requirement to submit a NSR program under sections 182 and 184 of the
Act. It is not and was not the District's intent to submit the Section
200-299 regulation to meet the requirements of title V of the Act
pertaining to major source operating permit programs. In fact, the
District has subsequently submitted a title V operating permit program
for EPA approval. The submittal being acted on today is being judged as
to whether it meets the requirements of sections 182 and 184 of title I
of the Act, pertaining to a major new and major modified source
construction permitting program, not title V requirements. The title V
submittal is not the subject of today's rulemaking action. The effect
of this rulemaking action will be to disapprove, also, the District
regulation as it pertains to a major source operating permit program as
the program submitted by the District does not meet the requirements of
sections 182 and 184 of the Act. EPA cannot approve a title V operating
permit program in lieu of a new source review (major new and major
modified source construction) program. EPA, however, encourages the
submittal of a minor source operating permit program, separate from the
major source construction permit program, which would establish
federally enforceable conditions for those sources that wish to remain
minor sources.
The effect of this rulemaking action will be to disapprove, also,
the District regulation as it pertains to minor source construction and
operating permits because it does not meet the requirements of Part D
of Subchapter I of the Act. Submittal of a minor source construction or
operating permit program does not correct the deficiencies in the major
source construction permit program, required under Part D of the Act.
The submittal addressed in this rulemaking contains provisions
pertaining to major and minor source construction permits and major and
minor source operating permits that are inextricably intertwined. Since
the District regulation does not meet Part D requirements, pertaining
to a major source construction permitting program, EPA is proposing to
disapprove the entire submittal as it pertains to permitting.
While the District may choose to modify and submit a minor source
operating permit program (subject to the criteria in the June 28, 1989
Federal Register notice) for approval into the SIP, such a submittal is
not required under section 182 or 184 of the Act and the lack of
submittal or lack of corrections to this operating permit program is
not considered a deficiency under section 182 or 184 of the Act. Any
subsequent submittal that the District makes to correct the
deficiencies in the major source construction permit program, which is
a required submittal under sections 182 and 184 of the Act, must
clearly delineate the program requirements applicable to major new or
major modified sources applying for construction permits versus
permitting requirements that may be applicable to minor sources or
sources applying for operating permits.
The requirements for a new source review construction permitting
program are contained in 40 CFR parts 51 and 52 and the Clean Air Act
and are summarized in the accompanying technical support document. Any
subsequent submittal that the District makes must meet the requirements
of the Act and 40 CFR parts 51 and 52 in order to be approved into the
District SIP. EPA is in the process of updating 40 CFR parts 51 and 52
to reflect the current requirements in the 1990 Clean Air Act
Amendments. Any future NSR submittals from the District will be judged
against the federal requirements in existence at the time of the
submittal.
EPA is disapproving this SIP revision without prior proposal
because the District's regulations contain such significant flaws that
the Agency views this as a clear-cut decision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to disapprove the SIP revision
should adverse or critical comments be filed. This action will be
effective May 23, 1995 unless, by April 24, 1995, adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by 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. 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 23, 1995.
Final Action
EPA is disapproving the District of Columbia Municipal Regulations
title 20, sections 200, 201, 202, 204 and 299 and the associated
definitions in section 199, pertaining to the permitting of sources.
The accompanying technical support document more fully explains the
rationale for EPA's action.
EPA is disapproving the District's permitting regulation because it
contains deficiencies that do not meet the requirements of section
182(a)(2)(C) of the CAA, and, as such, the rule does not fully meet the
requirements of part D of the Act. Under section 179(a)(2), if the
Administrator disapproves a submission under section 110(k) for an area
designated nonattainment, based on the submission's failure to meet one
or more of the elements required by the Act, the Administrator must
apply one of the sanctions set forth in section 179(b) unless the
deficiency has been corrected within 18 months of such disapproval.
Section 179(b) provides [[Page 15486]] two sanctions available to the
Administrator: highway funding and offsets. The 18 month period
referred to in section 179(a) will begin at the time EPA publishes
final notice of this disapproval. Moreover, the final disapproval
triggers the federal implementation plan (FIP) requirement under
section 110(c).
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 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.
EPA's disapproval of the State request under section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
This action has been classified as a Table 2 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
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation. The OMB has exempted this
regulatory action from E.O. 12866 review.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to the disapproval of the
District of Columbia Municipal Regulations Title 20, Sections 200, 201,
202, 204, 299 and associated definitions in Section 199, must be filed
in the United States Court of Appeals for the appropriate circuit by
May 23, 1995. 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
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: February 17, 1995.
Stanley Laskowski,
Acting Regional Administrator, Region III.
40 CFR part 52 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 J--District of Columbia
2. Section 52.472 is amended by adding paragraph (f) to read as
follows:
Sec. 52.472 Approval status.
* * * * *
(f) Disapproval of revisions to the District of Columbia State
Implementation Plan, District of Columbia Municipal Regulations (DCMR)
Title 20, Sections 200, 201, 202, 204 and 299, pertaining to permitting
of sources, and associated definitions in Section 199 submitted on June
21, 1985 and October 22, 1993 by the Mayor of the District of Columbia
(1985 submittal) and by the Administrator of the District of Columbia
Environmental Regulation Administration (1993 submittal). The
disapproved regulations include those applicable to major new and major
modified sources wishing to locate in the District. A new source review
program for such major sources is required under sections 182 and 184
of the Clean Air Act. There are many deficiencies in the DCMR
permitting regulations. Some of these deficiencies are the lack of
public notice and comment procedures for new and modified sources
applying for construction permits, the existence of a provision that
allows the Mayor to grant indefinite 1-month temporary permits to those
sources whose permits he/she determines have been delayed because of
his/her office, the inclusion of a major source operating permit
program, the inclusion of a minor source operating permit program that
does not meet Part D requirements of the Act, the exemption of certain
fuel burning (nitrogen oxide emitting) sources, incorrect citations of
the Clean Air Act, a provision that allows circumvention of the offset
requirement, and the lack of the de minimis special modification
provisions required in serious and severe ozone nonattainment areas
(section 182(c)(6) of the Clean Air Act).
[FR Doc. 95-7243 Filed 3-23-95; 8:45 am]
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