[Federal Register Volume 61, Number 184 (Friday, September 20, 1996)]
[Rules and Regulations]
[Pages 49414-49418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24043]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC-78-1-7236a; NC-80-1-2-9631a; FRL-5606-3]
Approval and Promulgation of Implementation Plans State: Approval
of Revisions to the State of North Carolina's State Implementation Plan
(SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the North Carolina State
Implementation Plan (SIP) to allow the State air pollution control
agency and the Forsyth County, North Carolina air pollution control
agency to utilize exclusionary rules for the purpose of limiting
potential to emit (PTE) criteria pollutants for certain source
categories to less than the title V permitting major source thresholds.
EPA is also approving under section 112(l) of the Clean Air Act several
source-categories of the submitted regulations for limiting
[[Page 49415]]
PTE of hazardous air pollutants (HAP) to less than title V permitting
major source thresholds. These exclusionary rules allow facilities to
compute potential emissions based on actual emissions or raw material
usage for the following source categories: gasoline service stations
and dispensing facilities; coating, solvent degreasing, and graphic
arts operations; dry cleaning facilities, grain elevators, cotton gins,
and emergency generators. On August 4, 1995, the State of North
Carolina through the Department of Environment, Health, and Natural
Resources (DEHNR) submitted a SIP revision fulfilling the requirements
necessary to utilize exclusionary rules to limit PTE of air pollutants
in a federally enforceable manner. On December 28, 1995, the Forsyth
County Department of Environmental Affairs (FCDEA) through the DEHNR
submitted a SIP revision fulfilling the requirements necessary to allow
Forsyth County to utilize exclusionary rules to limit PTE of air
pollutants in a federally enforceable manner. Forsyth County's SIP
regulations are a verbatim adoption of the State of North Carolina
exclusionary regulations.
DATES: This action is effective November 19, 1996 unless notice is
received by October 21, 1996 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Written comments should be addressed to Scott Miller at the
EPA Regional office listed below.
Copies of the material submitted by North Carolina may be examined
during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460
Environmental Protection Agency, Region 4 Air Planning Branch, 100
Alabama Street, SW, Atlanta, Georgia 30303
North Carolina Department of Health, Environment, and Natural
Resources, Air Quality Section, P.O. Box 29535, Raleigh, North Carolina
27626
Forsyth County Environmental Affairs Department, Air Quality Section,
537 North Spruce Street, Winston-Salem, North Carolina 27101
FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,
Air, Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365.
The telephone number is 404/347-3555 extension 4153. Reference file
numbers NC78 and NC80.
SUPPLEMENTARY INFORMATION: On August 4, 1995, and December 28, 1995,
the State of North Carolina and the FCDEA, respectively, through the
DEHNR submitted SIP revisions designed to allow the two agencies to
utilize exclusionary rules for the purpose of limiting PTE for gasoline
service stations and dispensing facilities; coating, solvent
degreasing, and graphic arts operations; dry cleaning facilities, grain
elevators, cotton gins, and emergency generators. Exclusionary rules
are designed to create federally enforceable limits on a facility's PTE
in a manner that does not require a facility-specific evaluation of
emissions and limiting conditions. As such, exclusionary rules are
appropriate for the purpose of limiting PTE when a facility has one
type of emission source. EPA is approving all source-category rules
submitted for purposes of limiting PTE for criteria pollutants. EPA is
approving under section 112(l) of the CAA, North Carolina regulations
15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and Forsyth County
regulations 3Q.0801, 3Q.0803 through 3Q.0804 for purposes of limiting
PTE of HAP. For a description of this and other ways to limit PTE for a
facility see the EPA guidance document entitled ``Options for Limiting
the Potential to Emit (PTE) of a Stationary Source Under Section 112
and Title V of the Clean Air Act (Act)'' dated January 25, 1995, from
John Seitz to the EPA Regional Air Division Directors.
North Carolina and FCDEA exclusionary rules were designed to meet
criteria listed in the EPA guidance memorandum entitled ``Guidance for
State Rules for Optional Federally Enforceable Emissions Limits Based
on Volatile Organic Compound Use'' dated October 15, 1993, from D. Kent
Barry to the EPA Regional Air Division Directors, an EPA guidance
document entitled ``Approaches to Creating federally-Enforceable
Emissions Limits'' dated November 3, 1993, and the January 25, 1995,
guidance memorandum referenced above. These guidance documents set out
specific guidelines for exclusionary rule development regarding
applicability, compliance determination and certification, monitoring,
reporting, recordkeeping, public involvement, practical enforceability,
and the requirement that a facility cannot rely on emission limits or
caps contained in a exclusionary rule to justify violation of any rate-
based emission limits or other applicable requirements.
An exclusionary rule applies to facilities which agree to limit
their annual emissions to less than major source thresholds for
criteria and/or hazardous air pollutant (HAP) emissions. An
exclusionary rule must also provide that a facility owner or operator
specifically apply for coverage under the exclusionary rule. Regulation
15A North Carolina Administrative Code (NCAC) 2Q.0801(a) and Forsyth
County Regulation 3Q.0801(a) provide that certain source categories may
define and limit their potential emissions to less than 100 tons per
year of each regulated pollutant, 10 tons per year of each hazardous
air pollutant, and 25 tons per year of all hazardous air pollutants
combined. The source categories covered by the exclusionary rules are
gasoline service stations and dispensing facilities; coating, solvent
degreasing, and graphic arts operations; dry cleaning facilities, grain
elevators, cotton gins, and emergency generators. North Carolina
Regulation 15A NCAC 2Q.0801(c) and Forsyth County Regulation 3Q.0801(c)
provide that even though a facility is exempted from obtaining a title
V permit by complying with these exclusionary rules, it may still be
required to be permitted under the State or local's minor source
construction and operating permit regulations found at North Carolina
Regulation 15A NCAC 2Q.0300 and Forsyth County Regulation 3Q.0300. As
such, these regulations meet the guidelines specified in the October
15, 1993, and the January 25, 1995, guidance documents that require
that an exclusionary rule to clearly identify the category of sources
that qualify for the rule's coverage.
The October 15, 1993, and the January 25, 1995, guidance documents
suggest that facilities be required to show compliance with the
exclusionary rule on a yearly basis by requiring monthly recordkeeping
of the relevant variable causing emissions and showing compliance using
the monthly record of the relevant variable affecting emissions. The
January 25, 1995, guidance document stipulates that where monitoring
cannot be used to determine emissions directly, limits on appropriate
operating parameters must be established for the units or source, and
monitoring must verify compliance with those limits. In the case of the
State of North Carolina and Forsyth County regulations, a facility is
required to keep records of the use of or processing of a product or
substance that produces the emissions. For instance, North Carolina
Regulation 15A NCAC 2Q.0802 and
[[Page 49416]]
Forsyth County Regulation 3Q.0802 require gasoline service stations and
gasoline dispensing facilities to keep monthly records of gasoline
throughput. The gasoline service station and gasoline dispensing
facility must then show compliance with the 15,000,000 gallon
exclusionary yearly rule limit on a monthly rolling average of gasoline
throughput. EPA believes that the exclusionary rules submitted by the
DEHNR and FCDEA meet guidelines outlined in the October 15, 1993, and
January 25, 1995, guidance documents for purposes of detailing specific
compliance monitoring to show compliance with the relevant limit
resulting from a exclusionary rule.
The October 15, 1993, guidance document requires that all
submittals from a source required pursuant to an exclusionary rule be
certified for truth, accuracy, and completeness. Each facility which
chooses to be covered by an exclusionary rule submitted by the DEHNR
and FCDEA must make submissions which are certified by the appropriate
official as defined under North Carolina Regulation 15A NCAC 2Q.0304(j)
and Forsyth County Regulation 3Q.0304(j). Regulation 15A NCAC
2Q.0304(j) and Forsyth County Regulation 3Q.0304(j) require
certifications to be signed by the following: For corporations, by a
principal executive officer of at least the level of vice president, or
his duly authorized representative, if such representative is
responsible for the overall operation of the facility from which the
emissions described originates; for partnership or limited partnership,
by a general partner; for a sole proprietorship, by the proprietor; and
for municipal, state, Federal, or other public entity, by a principal
executive officer, ranking elected official, or other duly authorized
employee. These requirements for the certifying official are similar to
those requirements found in 40 CFR 70.2 for a responsible official
which would certify truth, accuracy, and completeness of a part 70
permit application. Therefore, EPA believes that the exclusionary rules
submitted by the DEHNR and FCDEA meet requirements outlined in the
October 15, 1993, guidance document for purposes of certification with
respect to truth, completeness, and accuracy.
The October 15, 1993, guidance document recommends that reporting
requirements should vary based on how close the facility emissions are
to the relevant major source threshold. For facilities that are close
to the major source threshold, the guidance recommends that a state or
local air pollution control agency require more frequent reporting of
the variable affecting emissions (i.e. gasoline throughput). For
instance, North Carolina Regulation 15A NCAC 2Q.0802 and Forsyth County
Regulation 3Q.0802 require that gasoline service stations and gasoline
dispensing facilities with annual gasoline throughput that exceeds
10,000,000 gallons per year report gasoline throughput once yearly. For
those gasoline service stations and gasoline dispensing facilities with
annual gasoline throughput that exceeds 13,000,000 gallons per year, a
facility must report gasoline throughput once every six months. EPA
believes that the exclusionary rules submitted by the DEHNR and FCDEA
meet requirements outlined in the October 15, 1993, guidance document
for purposes of reporting the relevant variable affecting emissions
from the process. The October 15, 1993, guidance document also requires
that a facility report any exceedance of an exclusionary rule within
one week after its occurrence. The DEHNR and FCDEA regulations satisfy
this requirement by a verbatim incorporation of this requirement under
each exclusionary rule source-category. Therefore, EPA believes that
the DEHNR and FCDEA regulations meet the requirements set out in the
above-listed guidance documents for reporting.
The October 15, 1993, and the January 25, 1995, guidance documents
specify that recordkeeping is required by a facility to show that the
facility is eligible for the exclusionary rule and that the facility is
in compliance with the relevant exclusionary rule. The October 15,
1993, guidance document requires that recordkeeping shall be maintained
on site and available to the permitting authority upon demand. The
October 15, 1993, guidance document also requires that a facility be
required to retain records for a period sufficient to support
enforcement efforts. The DEHNR and FCDEA regulations require that
copies of all records required to be kept for exclusionary rule
purposes be kept on site and be available to each agency on demand. The
exclusionary rules submitted by DEHNR and FCDEA require that records be
kept for a period of three years from the date the records are
originated. EPA believes that a three year time period is an adequate
time period for a facility subject to an exclusionary rule to maintain
records in order to support enforcement efforts.
The November 3, 1993, guidance document and the January 25, 1995,
guidance document set out requirements for public involvement in the
development and application of exclusionary rules. The November 3,
1993, guidance document states that if exclusionary rules are
sufficiently reliable and replicable, EPA and the public need not be
involved with their application to individual sources, as long as the
protocols themselves have been subject to notice and opportunity to
comment and have been approved by EPA into the SIP. The January 25,
1995, guidance document provides that source-category standards
approved into the SIP or under section 112(l) of the Clean Air Act can
be used as federally enforceable limits on PTE. Once a specific source
qualifies under the applicability requirements of the source-category
rule, additional public participation is not required to make the
limits federally enforceable as a matter of legal sufficiency since the
rule itself underwent public participation and EPA review. Both the
DEHNR and FCDEA exclusionary rules underwent public participation at
the State and local level when these rules were made State and locally-
effective. EPA believes that with this Federal Register document and
other public process received at the State and local level that the
DEHNR and FCDEA exclusionary rules satisfy requirements for public
participation outlined in the November 3, 1993, and the January 25,
1995, guidance documents.
The January 25, 1995, guidance document sets out requirements for
exclusionary rule conditions to be practically enforceable. These
requirements stem from past precedence in what the EPA has required for
a permit to be considered enforceable as a practical matter. See 54 FR
27274 (June 28, 1989) and a June 13, 1989, EPA policy memorandum
entitled ``Limiting Potential to Emit in New Source Permitting.'' The
criteria include clear statements as to the applicability, specificity
as to the standard that must be met, explicit statements of the
compliance time frames (e.g. hourly, daily, monthly, or 12-month
averages, etc.), that the time frame and method of compliance employed
must be sufficient to protect the standard involved, recordkeeping
requirements must be specified, and equivalency provisions must meet
specific requirements. In general, practical enforceability means that
the provision must specify (1) a technically accurate limitation and
the portions of the source subject to the limitation; (2) the time
period for the limitation; (3) the method to determine compliance
including appropriate monitoring, recordkeeping, and reporting. Each of
these elements have been discussed prior to this paragraph in this
Federal Register with the
[[Page 49417]]
exception of (2) above. The DEHNR and FCDEA regulations require
facilities subject to the exclusionary rule to keep records on a
monthly basis and to determine compliance with a yearly limit on a
calendar monthly rolling average basis. This method for determining
compliance with the exclusionary rule limitation was addressed
specifically as one practically enforceable way to show compliance with
a permit limit in the June 13, 1989, guidance document entitled
``Limiting Potential to Emit in New Source Permitting.'' As such, EPA
believes the DEHNR and FCDEA exclusionary rule regulations meet the
requirements necessary for exclusionary rules to be enforceable as a
practical matter.
Finally, the October 15, 1993, guidance document stipulates that a
facility cannot rely on emission limits or caps contained in a
exclusionary rule to justify violation of any rate-based emission
limits or other applicable requirements. This requirement is reflected
by a verbatim incorporation of this provision found at North Carolina
regulation 15A NCAC 2Q.0801(b) and Forsyth County regulation
3Q.0801(b). Therefore, EPA believes that the DEHNR and FCDEA
exclusionary rules meet the requirements listed in the October 15,
1993, guidance document regarding the use of an exclusionary rule cap
to justify violation of any rate-based emission limit or other
applicable requirements.
Eligibility for federally enforceable exclusionary rule
certifications extends not only to certifications made after the
effective date of this rule, but also to certifications issued under
the State or local current rule prior to the effective date of this
rulemaking. If the State or local agency followed its own regulation
meaning that, each source received exclusionary rule certifications
that established a limiting condition on the facility's PTE, EPA will
consider all such exclusionary rule certifications as federally
enforceable upon the effective date of this action.
Final action
In this action, EPA is approving the State of North Carolina
exclusionary rules found at 15A NCAC 2Q.0800 through 15A NCAC 2Q.0807
into the North Carolina SIP. EPA is also approving the Forsyth County
exclusionary rules found at 3Q.0800 through 3Q.0807 into the Forsyth
County portion of the North Carolina SIP. EPA is approving North
Carolina regulations 15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and
Forsyth County regulations 3Q.0801, 3Q.0803 through 3Q.0804 for
purposes of limiting PTE of HAP under section 112(l) of the CAA. EPA is
publishing this document without prior proposal because the EPA 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
November 19, 1996, unless within 30 days of its publication, adverse or
critical comments are received. If EPA receives such comments, this
action will be withdrawn before the effective date by publishing a
subsequent document 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 November 19, 1996.
EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the appropriate circuit by November
19, 1996. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(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 has exempted
this action from review under Executive Order 12866.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the SIP
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, 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.
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) and 7410(k)(3).
D. Unfunded Mandates Reform Act of 1995
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
the 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 direct final approval action
promulgated today does not include a Federal 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. This Federal
action approves pre-existing requirements
[[Page 49418]]
under State or local law, and imposes no new Federal requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by Reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.
Dated: August 5, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 52 of chapter I, title 40, 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.
2. Section 52.1770 is amended by adding paragraph (c)(89) to read
as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
(89) Exclusionary rules for the State of North Carolina Department
of Environment, Health, and Natural Resources and the Forsyth County
Department of Environmental Affairs submitted by the North Carolina
Department of Environment, Health, and Natural Resources on August 8,
1995, and December 28, 1995, respectively, as part of the North
Carolina SIP.
(i) Incorporation by reference.
(A) Regulations 15A NCAC 2Q.0801 through 15A NCAC 2Q.0807 of the
North Carolina SIP as adopted by the North Carolina Environmental
Management Commission on June 8, 1995, and which became effective on
August 1, 1995.
(B) Regulations Subchapter 3Q.0801 through Subchapter 3Q.0807 of
the Forsyth County portion of the North Carolina SIP as adopted and
made effective by the Forsyth County Board of Commissioners on November
13, 1995.
(ii) Other material. None.
* * * * *
[FR Doc. 96-24043 Filed 9-19-96; 8:45 am]
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