[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Rules and Regulations]
[Pages 29567-29570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13026]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-67-7202a; A-1-FRL-6346-6]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts and Rhode Island; Nitrogen Oxides Budget and Allowance
Trading Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions
submitted by the States of Rhode Island (RI) and Massachusetts (MA).
This action consists of approving regulations in RI and MA which are
part of a regional nitrogen oxide (NOX) reduction program
designed to reduce stationary source NOX emissions during
the ozone season in the Ozone Transport Region (OTR) of the
northeastern United States. (Section 184(a) of the Clean Air Act
defines an ozone transport region in the northeastern United States
comprised of the States of Connecticut, Delaware, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, Vermont, and the Consolidated metropolitan Statistical Area
that includes the District of Columbia.) Additionally, this action
involves the approval of a source specific order which establishes
alternative NOX reasonably available control technology
(RACT) requirements for four boilers at the Rhode Island Economic
Development Corporation (RIEDC). These SIP revisions were submitted
pursuant to section 110 of the Clean Air Act (CAA).
DATES: This direct final rule is effective on August 2, 1999 without
further notice, unless EPA receives adverse comment by July 2, 1999. If
adverse comment is 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 Susan Studlien, Deputy Director,
Office of Ecosystem Protection (mail code CAA), U.S. Environmental
Protection Agency, Region I, 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 Ecosystem Protection, U.S. Environmental
Protection Agency, Region I, One Congress Street, 11th floor, Boston,
MA; at the Division of Air and Hazardous Materials, Rhode Island
Department of Environmental Management, 291 Promenade Street,
Providence, RI 02908-5767, and at the Massachusetts Division of Air
Quality Control, Department of Environmental Protection, One Winter
Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, (617) 918-1048 or at
[email protected]
SUPPLEMENTARY INFORMATION: On December 19, 1997, the Massachusetts (MA)
Department of Environmental Protection (DEP) submitted to EPA a request
to revise its State Implementation Plan (SIP). The request proposes to
add 310 CMR 7.27, ``NOX Allowance Program'' to the SIP.
Similarly, on January 20, 1999, the Rhode Island (RI) Department of
Environmental Management (DEM) submitted Regulation No. 38, ``Nitrogen
Oxides Allowance Program,'' and Consent Agreement No. 96-04-AP for the
Rhode Island Economic Development Corporation (RIEDC) as revisions to
the Rhode Island SIP. The two regulations are part of a regional
NOX reduction program designed to reduce stationary source
NOX emissions during the ozone season in the OTR. The
consent agreement no. 96-04-AP establishes alternative NOX
reasonably available control technology (RACT) requirements for four
boilers at the RIEDC facility in North Kingstown, RI.
I. Summary of SIP Revisions
NOX RACT Consent Agreement No. 96-04-AP for RIEDC
On September 2, 1997, EPA approved Regulation No. 27, ``Control of
Nitrogen Oxides Emissions'' as meeting the NOX RACT
requirements of sections 182(b) and (c) of the Clean Air Act and
revised the Rhode Island SIP accordingly (see 62 FR 46202). Section
27.4.8 allows RI DEM to relax the RACT requirements on a case-by-case
basis, upon approval by EPA. The NOX RACT Consent Agreement
No. 96-04-AP for RIEDC represents a case-specific alternative RACT
determination as provided for under section 27.4.8.
Ozone Transport Region Nitrogen Oxides Allowance Program in
Massachusetts and Rhode Island
Sections 182(b)(1)(A) and 182(c)(2)(A) of the CAA require States
with areas classified as ``moderate,'' ``serious,'' and ``severe''
ozone nonattainment to submit revisions to their applicable SIPs to
provide for specific annual reductions in emissions of volatile organic
compounds (VOCs) and oxides of nitrogen (NOX) as necessary
to attain the national primary ambient air quality standard for ozone.
Additionally, section 110 of the Act requires that such plans be
subject to public notice, comment, and hearing procedures and that the
States adopt and submit the plans to EPA.
As part of MA's and RI's efforts to meet these requirements, the
States have submitted regulations which impose statewide caps on
NOX emissions from certain industrial sectors (e.g.,
electric utility boilers, industrial boilers, combustion turbines,
etc.). RI's Regulation No. 38 and MA's Regulation 310 CMR 7.27 are
based closely on a model rule which was developed using the EPA's
economic incentive program rules (67 FR 16690, April 7, 1994) as the
general regulatory framework. This model rule was developed by the
Northeast States for Coordinated Air Use Management (NESCAUM) and the
Mid-Atlantic Regional Air Management Association (MARAMA) and is
entitled, ``NESCAUM/MARAMA NOX Budget Model Rule,'' issued
on May 1, 1996. The basis for the model rule was a memorandum of
understanding entitled, ``Memorandum of Understanding Among the States
of the Ozone Transport Commission on Development of a Regional Strategy
Concerning the Control of Stationary Source Nitrogen Oxide Emissions,''
dated September 27, 1994, otherwise known as the OTC MOU.
RI's and MA's NOX budget regulations set statewide, five
month (May 1 through September 30) NOX ``budgets,'' or mass
emission limits in tons, to reduce the aggregate emissions from large
fossil fuel fired combustion equipment by as much as 75% from a 1990
baseline. In order to achieve the aggregate NOX reductions,
the regulations proportion NOX ``allowances'' (in tons) to
the facilities with emission units subject to the program. The
regulations require each owner or operator of each unit to hold, by
December 31 of each year, at least as many NOX allowances in
their compliance account as total tons of NOX emitted during
the previous five month ozone season. Under these regulations,
NOX allowances may be bought or sold and unused allowances
may be banked from one year to another in a central registry
administered by EPA. The program requires NOX emissions to
be monitored by either a continuous emission monitoring system (CEMS)
or equivalent, although the use of alternatives is allowed where
approved
[[Page 29568]]
by the State and EPA. The program will begin on May 1, 1999. Starting
in 2002 and occurring every three years after, an audit of the program
will be conducted to ensure that the program is providing the expected
reductions.
Additional information concerning EPA's evaluation of the RI and MA
NOX allowance program regulations is detailed in two
memoranda: ``Technical Support Document for Massachusetts'' Regulation
310 CMR 7.27, ``NOX Allowance Program,'' dated December 16,
1998, and ``Technical Support Document for Rhode Island's Regulation
No. 38, ``Nitrogen Oxides Allowance Program'' and NOX RACT
Consent Agreement No. 96-04-AP for Rhode Island Economic Development
Corporation,'' dated February 2, 1999. Copies of those documents are
available, upon request, from the EPA Regional Office listed in the
ADDRESSES section of this document.
II. Issues
An issue associated with the approval of the Rhode Island and
Massachusetts regulations is that the regulations currently contain
NOX emissions budget and allocation schemes only for 1999
through the ozone season of 2002, i.e., ``phase II'' of the OTC
NOX Budget program. However, the OTC MOU obliges
Massachusetts and Rhode Island to require its allowance program sources
to make specific additional NOX reductions by May 1, 2003
and continuing thereafter, i.e., ``phase III.'' Additionally, in May
1998, Massachusetts proposed an attainment demonstration for the
western MA nonattainment area which relies on the NOX
reductions associated with the OTC program in 2003 and beyond to
achieve attainment with the one hour ozone standard.
Section 7.27 (3)(b) of the MA regulation and section 38.2.1(b) of
the RI regulation are currently reserved for the purpose of setting the
statewide allocation for 2003 and beyond. In their current form,
Regulation No. 38 and 310 CMR 7.27 are approvable for 1999, 2000, 2001,
and 2002. However, in order to meet the interstate MOU and for MA to
have a credible attainment demonstration, both MA and RI will need to
amend their regulations to establish the NOX caps in those
States during 2003 and beyond.
The 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
adverse comments be filed. This action will be effective August 2, 1999
without further notice unless the Agency receives adverse comments by
July 2, 1999.
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 August 2, 1999, and no
further action will be taken on the proposed rule.
III. Final Action
EPA is approving Massachusetts' regulation 310 CMR 7.27,
``NOX Allowance Program,'' Rhode Island's Regulation No. 38,
``Nitrogen oxides Allowance Program,'' and Rhode Island's Consent
Agreement No. 96-04-AP. 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.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (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, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget 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
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have 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 rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks and
is not economically significant under E.O. 12866.
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, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
[[Page 29569]]
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
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule 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 final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 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
create any new requirements, I certify that this action will not have a
significant economic 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 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).
F. Unfunded Mandates
Under sections 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 approval action promulgated 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 approves 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.
G. Submission to Congress and the Comptroller General
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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
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 August 2, 1999. 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).) EPA encourages
interested parties to 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Note: Incorporation by reference of the State Implementation
Plan for the State of Massachusetts and Rhode Island was approved by
the Director of the Federal Register on July 1, 1982.
Dated: May 6, 1999.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart W--Massachusetts
2. Section 52.1120 is amended by adding paragraph (c)(118) to read
as follows:
Sec. 52.1120 Identification of plan
* * * * * *
(c) * * *
(118) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on December 19,
1997.
(i) Incorporation by reference.
(A) Letter from the Massachusetts Department of Environmental
Protection dated December 19, 1997 submitting a revision to the
Massachusetts State Implementation Plan.
(B) Regulation 310 CMR 7.27, NOX Allowance Program,
effective on June 27,1997.
(ii) Additional materials.
(A) Letter from the Massachusetts Department of Environmental
Protection dated March 9, 1998 clarifying the program implementation
process.
3. In Sec. 52.1167 Table 52.1167 is amended by adding a new state
citation for regulation 310 CMR 7.27, ``NOX Allowance
Program'' to read as follows:
Sec. 52.1167--EPA-approved Massachusetts State regulations.
* * * * *
Table 52.1167. EPA-Approved Massachusetts Regulations
[[Page 29570]]
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Date Federal Comments/
State citation Title/Subject submitted Date approved Register 52.1120(c) unapproved
by State by EPA citation sections
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* * * * * *
*
310 CMR 7.27.. NOX Allowance 12/19/97 6/2/99......... [Insert FR (c)(118)..... Approval of NOx
Program. citation from cap and
published allowance
date]. trading
regulations
* * * * * *
*
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Subpart OO--Rhode Island
4. Section 52.2070 is amended by adding paragraph (c)(55) to read
as follows:
Sec. 52.2070 Identification of plan
* * * * *
(c) * * *
(55) Revisions to the State Implementation Plan submitted by the
Rhode Island Department of Environmental Management on February 13,
1998 and January 20, 1999 which define alternative NOX RACT
requirements and impose seasonal limitations on the emissions of
nitrogen oxides at certain major stationary sources in Rhode Island.
(i) Incorporation by reference.
(A) Letters from the Rhode Island Department of Environmental
Management, dated February 13, 1998 and January 20, 1999 submitting
revisions to the Rhode Island State Implementation Plan.
(B) Regulation number 38, ``Nitrogen Oxides Allowance Program,'' as
adopted on May 21, 1998, submitted on effective on June 10, 1998.
(C) An administrative consent agreement between Rhode Island
Department of Environmental Management and Rhode Island Economic
Development Corporation, file no. 96-04-AP, adopted and effective on
September 2, 1997.
5. In Sec. 52.2081, Table 52.2081 is amended by revising the state
citation for Regulation No. 27 and by adding a new state citation for
Regulation No. 38, ``Nitrogen Oxides Allowance Program'' to read as
follows:
Sec. 52.2081--EPA--approved Rhode Island state regulations.
* * * * *
Table 52.2081.--EPA-Approved Rules and Regulations
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Date Comments/
State citation Title/subject adopted by Date approved by FR citation 52.2070 Unapproved
State EPA sections
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* * * * * *
*
No. 27........ Control of 9/2/97 6/2/99.......... [Insert FR (c)(55)...... Establishes
Nitrogen Oxides citation from alternative NOx
Emissions. published RACT for Rhode
date]. Island Economic
Development
Corporation in
North
Kingstown, RI
* * * * * *
*
No. 38........ Nitrogen Oxides 5/21/98 6/2/99.......... [Insert FR (c)(55)...... Adds ozone
Allowance citation from season NOx
Program. published emission
date]. limitations at
certain
stationary
sources.
* * * * * *
*
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[FR Doc. 99-13026 Filed 6-1-99; 8:45 am]
BILLING CODE 6560-50-P
