01-16563. Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; New Source Review Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. The revisions establish and require the implementation of the Clean Air Act Amendments (CAAA) of 1990 regarding New Source Review (NSR) in areas that have not attained the National Ambient Air Quality Standards (NAAQS) and areas within the ozone transport region (OTR). In addition, the revisions replace the existing definition of stationary source in New Hampshire's SIP with the plantwide stationary source definition. The intended effect of this action is to approve PART Env-A 610, “Additional Requirements in Nonattainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region.” This action is being taken in accordance with the Clean Air Act (CAA).

DATES:

This direct final rule is effective on September 25, 2001 without further notice, unless EPA receives adverse comment by August 27, 2001. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Comments may be mailed to Steven Rapp, Unit Manager, Air Permits Program, Office of Ecosytem Protection (mail code CAP), U.S. Environmental Protection Agency, EPA New England, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the documents relevant to this action are available for public inspection during normal business hours, by appointment at the Office of Ecosytem Protection, U.S. Environmental Protection Agency, Region I, One Congress Street, 11th floor, Boston, MA, and New Hampshire Department of Environmental Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT:

Brendan McCahill, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On July 29, 1993, New Hampshire Air Resources Division (ARD) formally submitted a revision to its State Implementation Plan (SIP) for purposes of meeting the requirements of the CAA. The revision consists of changes to New Hampshire's PART Env-A 610, “Additional Requirements in Nonattainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region.” The revision did not include provisions to implement two requirements of the CAA, the adequate SIP implementation requirement under section 173(a)(4) and the alternative siting analysis requirement under section 173(a)(5). On July 2, 1999, the ARD submitted additional changes to PART Env-A 610 (renumbered as Env-A 622) that met the requirements of sections 173(a)(4) and 173(a)(5) of the CAA. With the inclusion of the two missing provisions, the ARD's rules regarding the permitting of new major sources in nonattainment areas and the OTR are consistent with all CAA NSR requirements. In addition, the ARD's July 2, 1999 SIP revision removed the dual source definition of stationary source and adopted a plant-wide stationary source definition consistent with federal requirements.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

A. General Requirements for Nonattainment NSR

Background

The air quality planning requirements for nonattainment NSR are set out in part D of subpart I of Title 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 and the January 25, 2001 Technical Support Document entitled, “New Hampshire New Source Review Revisions,” located at the addresses listed above for a more detailed discussion of the interpretations of part D advanced in today's proposal and the supporting rationale.

Summary of New Hampshire's Regulation

The general nonattainment NSR requirements are found in sections 172 and 173 of part D and must be met by all nonattainment areas. The following paragraphs reference the nonattainment NSR requirements required to be submitted to EPA by November 15, 1992 and explain how New Hampshire's rules meet those requirements. New Hampshire's existing SIP already contained some of these provisions, while others are being approved today.

1. New Hampshire regulation Env-A 610.05(d) establishes provisions in accordance with section 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).

2. New Hampshire regulation Env-A 610.05(c) establishes provisions in accordance with section 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 an NAAQS violation in the area in which the source would construct.

3. New Hampshire regulation Env-A 610.05 (c)(5)c. establishes provisions in accordance with section 173(c)(1) of the CAA that any emissions offsets obtained in conjunction with the issuance of a license to a new or modified source must be in effect and enforceable by the time the new or modified source commences operation.

4. New Hampshire regulation Env-A 610.05(a) establishes provisions in accordance with section 173(c)(1) of the CAA to assure that emission increases from new or modified sources are offset by real reductions in actual emissions.

5. New Hampshire regulations Env-A 610.05(b)(2) and (3) establish provisions in accordance with section 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.

6. The 1990 CAAA modified the Act's provisions on growth allowances in nonattainment areas by (1) eliminating existing growth allowances in the 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. Sections 173(b) and 173(a)(1)(B) of the CAA. New Hampshire's regulations do not contain provisions for growth allowances and are consequently consistent with the Act.

7. New Hampshire has a practice of supplying information to EPA's RACT/BACT/LAER clearinghouse in accordance with section 173(d) of the CAA.

8. New Hampshire regulation Env-A 610.04(b) establishes provisions, in accordance with section 173(a)(3) of the CAA, to assure that owners or operators of each proposed new or modified major stationary source demonstrate, as a condition of license issuance, that all other major stationary sources under the same ownership in the State are in compliance with the CAA.

9. New Hampshire regulation Env-A 622.04 establishes provisions in accordance with 173(a)(5) of the CAA that, as a prerequisite to issuing any part D license, require an analysis of alternative sites, sizes, production processes, and environmental control techniques for the proposed source 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.

10. New Hampshire regulation Env-A 622.06 establishes provisions in accordance to section 173(a)(4) of the CAA that require as a prerequisite to issuing a part D permit, the Administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area in which the proposed source is to be constructed or modified.

B. General Requirements for Ozone Nonattainment NSR and the OTR

Background

The general nonattainment NSR requirements are found in sections 172 and 173 of part D 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 section 182(f), which states that requirements for major stationary sources of VOC shall apply to major stationary sources of oxides of nitrogen ( NO_X) unless the Administrator makes certain determinations related to the benefits or contribution of NO_X 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.

Pursuant to sections 172(c)(5) of the CAA, State implementation plans must require permits for the construction and operation of new or modified major stationary sources in nonattainment areas. The federal statutory permit requirements for ozone nonattainment areas are generally contained in revised section 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 NO_X satisfies the requirements applicable to any major source of VOC, unless a special NO_X exemption is granted by the Administrator under the provision of section 182(f). For serious and severe ozone nonattainment areas, State plans must implement section 182(c)(6) with regard to modifications of major sources.

Summary of New Hampshire's Submittal

The State of New Hampshire currently contains serious, marginal and nonclassified nonattainment areas, as well as areas classified as attainment. In addition, the entire State is contained within the OTR (see section 184 of the CAA). The CAA provisions that apply to the OTR provide equal or more stringent requirements than those provisions applicable to the marginal and moderate nonattainment areas. Under the CAA, the OTR provisions are applicable throughout the State.

The following paragraphs reference the serious ozone nonattainment and OTR NSR requirements that New Hampshire was required to submit to EPA by November 15, 1992 and how New Hampshire has met those requirements. To identify those areas of New Hampshire that are within the more stringent serious ozone nonattainment area, New Hampshire's regulations establish a definition for the Four-County Ozone Classified Nonattainment Region. This region includes the counties of Hillsborough, Merrimack, Rockingham and Strafford and encompasses the geographic area classified as a serious nonattainment area as designated by the EPA within Section 107 of the CAA. All regions outside the four-county ozone classified nonattainment region are subject to the federal NSR requirements for the OTR.

NSR Requirements for the Ozone Transport Region

1. New Hampshire regulation Env-A 610.01(a)(2)b.1. establishes, in accordance with the OTR requirements provided in section 184(b)(2) of the CAA, a major source threshold level of 50 TPY for VOC for the entire state.

2. New Hampshire regulation Env-A 610.01(a)(2)b.2.ii. establishes, in accordance with sections 184(b)(2), 182(f) and 302(j) of the CAA, a major source threshold level of 100 tpy for NO_X for sources located outside the four-county ozone nonattainment region. This major source threshold level satisfies the OTR NSR requirements.

3. New Hampshire regulation Env-A 610.05(c)(1)b. of New Hampshire's regulation establishes, in accordance with sections 184(b)(2), 182(b)(5) and 182(f) of the CAA, an offset ratio of 1.15 to 1 for major sources or major modifications to major sources of VOC and NO_X outside the four-county ozone nonattainment area. This offset ratio satisfies the federal OTR NSR Federal requirement.

Serious Ozone Nonattainment Areas

1. New Hampshire regulation Env-A 610.01(a)(2)b.1. establishes, in accordance to the serious nonattainment area requirements provided in section 182(c) of the CAA, a major source threshold level of 50 TPY for VOC for the entire state.

2. New Hampshire regulation Env-A 610(a)(2)b.2.i establishes, in accordance with sections 182(c) and 182(f) of the CAA, a major stationary source threshold of 50 TPY for NO_X in the four-county ozone classified nonattainment region.

3. New Hampshire regulation Env-A 610.05(c)(1)a. establishes, in accordance with sections 182(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 NO_X in the four-county ozone classified nonattainment region.

4. New Hampshire regulations Env-A 610.03(e)(1) and 610.03(f)(1) establish provisions that are consistent with the requirements of section 182(c)(6) of the CAA, the “De Minimis rule.”

C. Revisions to Stationary Source Definition

Background

On August 7, 1980 (45 FR 52676), EPA promulgated a rule defining a “stationary source” as “any building, structure, facility, or installation.” Known as the “dual source definition,” a stationary source is both a building structure or facility and an installation (e.g., an individual piece of equipment). For NSR applicability, permitting authorities consider each emission unit as a separate independent stationary source and as a component of the entire stationary source. Emission increases from a physical or operational changes at an emission unit are reviewed both with and without regard to reductions elsewhere in the plant. Consequently, with respect to NSR applicability, the dual source definition does not offer any benefits to sources that reduce emissions at emission units not undergoing modification. On October 14, 1981 (46 FR 50766), EPA revised its NSR regulations to allow adoption of a “plantwide” definition. Under this definition, sources determining major NSR applicability of a proposed modification are not required to consider each emission unit as an individual stationary source. Consequently, the plantwide definition provides sources the opportunity to take credit for emissions reductions achieved across the entire facility when determining NSR applicability for modifications occurring at individual emission unit(s).

Summary of New Hampshire's Submittal

New Hampshire is revising its stationary source definition in Env-A 622-01 to make the definition consistent with EPA's plantwide definition of stationary source as adopted in EPA's NSR regulations under 40 CFR 51.165(a)(1).

General Savings Clause. The ARD's adoption of plantwide source definition revises a regulation that was in effect before the enactment of the CAAA of 1990. Pursuant to Section 193 of the Clean Air Act, the “general savings clause,” EPA must determine whether this revision to New Hampshire's NSR Program ensures equivalent or greater reductions of nonattainment area pollutants. In conducting this analysis, EPA examines the impact of all revisions to New Hampshire's SIP since 1990. The analysis found that New Hampshire's SIP revisions made since 1990 will ensure equivalent or greater emissions reductions as compared with New Hampshire SIP in effect as of 1990.

To determine the impact of New Hampshire's revision to its source definition, EPA considered the potential increase in emissions from sources modifying their facilities. Typically, the change from the dual source definition to plantwide source definition may allow more sources with modifications to “net out” of major NSR applicability. However, determining how many additional modifications would “net out” due to the revision is difficult. The NSR rules contain numerous complex applicability provisions that all work together in determining if a new source is subject to NSR. However, in reviewing past permit transactions completed under New Hampshire's old dual source definition, EPA did not identify any modifications that triggered major NSR review. The review suggests that the number of modifications potentially effected by the ARD's source definition revision is relatively small and that the impact to the State's overall emissions would also be small.

To offset the relatively small increase in emissions from the revision, EPA considered other revisions approved into New Hampshire since 1990 that strengthen its SIP. On November 14, 2000, EPA approved the ARD's Order 98-001 into the SIP. The order requires Public Service of New Hampshire (PSNH) to meet by 1999 a yearly emissions cap that significantly reduces emissions from their facilities in New Hampshire. A significant portion of these emission reductions, over a thousand tons per year, are surplus reductions not required by any CAA requirement. These surplus reductions more than offset any potential emission increase resulting from DES's revisions to their stationary source definition.

In summation, EPA concludes that the overall effect of New Hampshire's revised SIP will ensure reductions equivalent to those obtained in the existing SIP. EPA understands that the plantwide definition revision will effect a small number of sources and may cause a slight increase in State's emissions. However, EPA believes the ARD's PSNH order strengthens the SIP and provides surplus emission decreases not required by the CAA. These surplus emission reductions more than offset the emission increases from the new source definition revision.

II. Final Action

EPA is approving the revisions to New Hampshire's PART Env-A 610 (renumbered to Env-A 622), “Additional Requirements in Nonattainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region.” The Agency has reviewed this request for revision of the Federally-approved State implementation plan for conformance with the provisions of the 1990 amendments enacted on November 15, 1990. These revisions meet the nonattainment area NSR provisions of Part D of the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This action will be effective September 25, 2001 without further notice unless the Agency receives relevant adverse comments by August 27, 2001.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 25, 2001 and no further action will be taken on the proposed rule.

III. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 September 25, 2001. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: May 22, 2001.

Ira Leighton,

Acting Regional Administrator, EPA—New England.

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 et seq.

Subpart EE—New Hampshire

2. Section 52.1520 is amended by adding paragraph (c)(66) to read as follows:

§ 52.1520

Identification of plan

* * * * *

(c) * * *

(66) Revisions to the State Implementation Plan submitted by the New Hampshire Air Resources Division on July 29, 1993 and July 2, 1999.

(i) Incorporation by reference.

(A) New Hampshire's PART Env-A 610 “Additional Requirements in Non-attainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region” adopted on May 21, 1993.

(B) New Hampshire's PART Env-A 622 (Formally Env-A 610) “Additional Requirements in Non-attainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region” incorporating the “Plant-wide Source,” adopted on June 26, 1997.

(C) New Hampshire's PART Env-A 622 (Formally Env-A 610) “Additional Requirements in Non-attainment Areas and the New Hampshire Portion of the Northeast Ozone Transport Region,” addition of the requirements for section 173(a)(4) and (5) of the CAA, adopted on January 29, 1999.

(D) Letter from the New Hampshire Air Resources Division dated July 29, 1993 submitting a revision to the New Hampshire State Implementation Plan.

(E) Letter from the New Hampshire Air Resources Division dated July 2, 1999 submitting a revision to the New Hampshire State Implementation Plan.

3. In § 52.1525 Table 52.1525 is amended by adding a new entry for “Env-A 600” following the existing entry for “Env-A 600”to read as follows:

§ 52.1525

EPA-approved New Hampshire state regulations.

* * * * *

Table 52.1525.—EPA-Approved Rules and Regulations ¹—New Hampshire

Title/subject	State citation chapter 2	Date adopted by State	Date approved by EPA	Federal Register citation	52.1520	Explanation
*         *         *         *         *         *         *
Statewide Permit System	Env-A 600	5/21/93 6/26/97 1/29/99	7/27/01	FR 39104	(c)(66)	Part Env-622 (formally 610) Adopted NSR CAA requirements Adopted plantwide definition Adopted CAA sections 173(a)(4) & (5).
*         *         *         *         *         *       *
1 These regulations are applicable statewide unless otherwise noted in the explanation section.
2 When the New Hampshire Department of Environmental Services was established in 1987, the citation chapter title for the air regulations changed from CH Air to Env-A.