Clean Air Act Limited Approval/Limited Disapproval and Promulgation of Emission Statement Implementation Plans for New Hampshire

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH12-1-6318; A-1-FRL-5074-9]

Clean Air Act Limited Approval/Limited Disapproval and

Promulgation of Emission Statement Implementation Plans for New

Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA is proposing a limited approval/limited disapproval of a

State Implementation Plan (SIP) revision submitted by the State of New

Hampshire. This revision establishes an emission statement program for

stationary sources throughout the State. New Hampshire's submittal

includes amendments to Chapter Env-A 900 (Parts 901-903). This action

proposes limited approval of New Hampshire's Chapter Env-A 900, ``Owner

and Operator'' for the purpose of strengthening the New Hampshire SIP.

In addition, this action proposes limited disapproval of New

Hampshire's Chapter Env-A 900 (Parts 901-903) since the regulation

fails to meet all requirements of the Clean Air Act (CAA). This action

is being taken pursuant to section 110 of the CAA. Public comments are

solicited on the requested SIP revisions and on EPA's proposal of a

limited approval/limited disapproval.

DATES: Comments received in writing by October 20, 1994 will be

considered in the development of USEPA's final rule action.

ADDRESSES: Comments should be mailed to Linda M. Murphy, Director, Air,

Pesticides, and Toxics Management Division, JFK Federal Building,

Boston, MA 02203.

Copies of the State's submittal and other information are available

for inspection during normal business hours, by appointment, at the

following location: Air, Pesticides and Toxics Management Division,

U.S. Environmental Protection Agency, Region I, One Congress Street,

10th floor, Boston, MA 02203. In addition, New Hampshire's submittal is

available at the Air Resources Division, Department of Environmental

Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-

2033.

FOR FURTHER INFORMATION CONTACT: Daria L. Dilaj, U.S. Environmental

Protection Agency, Region I, JFK Federal Building (APS), Boston, MA

02203. Phone: (617) 565-3249.

SUPPLEMENTARY INFORMATION:

I. Background

The air quality planning and State Implementation Plan (SIP)

requirements for ozone nonattainment and transport areas are set out in

subparts I and II of part D of title I of the Clean Air Act, as amended

by the Clean Air Act Amendments of 1990 (CAA or ``the Act''). EPA has

published a ``General Preamble'' describing EPA's preliminary views on

how EPA intends to review SIP's and SIP revisions submitted under title

I of the CAA, including those State submittals for ozone transport

areas within the States (see 57 FR 13498 (April 16, 1992) (``SIP:

General Preamble for the Implementation of title I of the Clean Air Act

Amendments of 1990''), 57 FR 18070 (April 28, 1992) (``Appendices to

the General Preamble''), and 57 FR 55620 (November 25, 1992) (``SIP:

NOx Supplement to the General Preamble'')). EPA has also issued a draft

guidance document describing the requirements for the emission

statement programs discussed in this Notice entitled ``Guidance on the

Implementation of an Emission Statement Program'' (July, 1992). The

Agency is also conducting a rulemaking process to modify part 40 of the

CFR to reflect the requirements of the emission statement program.

II. Analysis of State Submission

A. Procedural Background

The Act requires each state to observe certain procedural

requirements in developing its SIP, of which the emission statement

program will become a part. Section 110(l)(2) of the Act provides that

each implementation plan submitted by a State under the CAA must be

adopted by such State after reasonable notice and public hearing. EPA

must at the outset determine whether a submittal is complete and

therefore warrants further EPA review and action (see section 110(k)(1)

and 57 FR 13565). EPA's completeness criteria for SIP submittals are

set out at 40 CFR part 51, appendix V (1991), as amended by 57 FR 42216

(August 26, 1991).

The State of New Hampshire held a public hearing on June 18, 1992.

Following the public hearing, the plan was adopted by the State on

November 13, 1992 and submitted to EPA on December 21, 1992 as a

proposed revision to the SIP. The SIP revision was reviewed by EPA and

deemed complete on February 19, 1993.

B. Components of Emission Statement Program

There are several key general and specific components of an

acceptable emission statement program. Specifically, the State must

submit a revision to its SIP and the emission statement program must

meet the minimum requirements for reporting by the sources and the

State. In general, the program must include, at a minimum, provisions

for applicability, definitions, compliance, and the specific source

requirements detailed below.

1. SIP Revision Submission

EPA requires States to submit their SIP revisions within 2 years of

enactment of the Clean Air Act Amendments of 1990 (CAAA) (November 15,

1990). New Hampshire submitted its SIP revision on January 12, 1993.

2. Reporting Requirements for State

In addition to the program elements applying to sources, the SIP

should include a provision that requires States to provide EPA the

identifying information for the sources covered by the emission

statement program, the value for rule effectiveness utilized by the

State in its SIP calculations, the source data elements entered into

AIRS, and quarterly emission statement status reports. The minimum

source identification information should include the AIRS code, the AFS

point number (ID), the AFS segment number (ID), and the Source Category

Code (SCC) and descriptions for each segment. In addition, States

should supply to EPA the current rule effectiveness (RE) factors at the

SCC pollutant level, if applicable, and the RE method codes. The

emission statement data submittal to AIRS should include all data

obtained from the source and the State. These source-supplied data

elements include source identification information (name, physical

location, mailing address of the facility, latitude and longitude, and

4-digit Standard Industrial Classification (SIC) code(s)), operating

schedule information (percentage annual throughput, days per week on

the normal operating schedule, hours per day during the normal

operating schedule, and hours per year on the normal operating

schedule), process rate data (annual process rate (annual throughput)

and peak ozone season daily process rate), control equipment

information (current primary and secondary control equipment

identification codes and current combined control equipment efficiency

(%)), and emissions information (estimated actual VOC and NOx emissions

at the segment level (in tons per year for an annual emission rate and

pounds per day for a typical ozone season day), estimated emissions

method code, calendar year for the emissions, and emission factor (if

used)). EPA recommends that the States electronically submit emission

statement data into the AIRS database no later than July 1 of each

year, commencing in 1993. The quarterly reports should show the total

number of facilities that met the State's emission statements program

requirements and the number of facilities that failed to meet the

requirements. Quarterly reports should be submitted commencing no later

than July 1, 1993.

New Hampshire has not committed to submitting emission statement

data to EPA by July 1 of each year. EPA will negotiate with New

Hampshire to include a submittal date and requirement for quarterly

emission statement reports in future 105 grants.

New Hampshire has not required source identification information,

operating schedule information, control equipment information, process

data information, and annual and typical ozone season day emissions

from all potentially subject source categories. New Hampshire only

requires source identification information and operating schedule

information from surface coating and printing sources under Env-A

901.04(c), gasoline storage and degreasing facilities under Env-A

901.05(b), and fuel combustion and incinerator sources under Env-A

901.06(c)(1) and 901.06(c)(3). Under Env-A 901.04(h), New Hampshire

requires all facilities with add-on VOC control equipment to keep

records of control equipment information, but not to report this

information. Facilities with add-on NOx control equipment are required

to record this information under Env-A 901.06(c)(6). New Hampshire only

requires process data information from surface coating and printing

sources under Env-A 901.04(c)(5) and combustion sources under Env-A

901.06(c)(4). Recordkeeping, but not reporting, is required for

gasoline storage sources under Env-A 901.04(e)(1) and degreasing

facilities under Env-A 901.04(g)(2). New Hampshire only requires annual

and typical ozone season day emissions from surface coating and

printing sources under Env-A 901.04(c)(7), and combustion sources under

Env-A 901.06(c)(5). This is also required from degreasing sources under

Env-A 901.04(g)(4), however, sources are not required to report this

information, only to keep records. No emissions reporting requirements

were made for VOC/gasoline storage or for other types of sources.

3. Sources Covered

Section 182(a)(3)(B) requires that States with areas designated as

nonattainment for ozone require emission statement data from all

sources of VOC or NOx in the nonattainment areas. This requirement

applies to all classified ozone nonattainment areas, regardless of the

classification (Marginal, Moderate, etc.). Section 184(b)(2) of the Act

extends the requirements for major stationary sources in moderate ozone

nonattainment areas to sources in the ozone transport region. Section

182(f) extends the requirements for major stationary sources of VOC in

ozone transport regions to major sources of NOx. The emission statement

requirement covers sources in attainment areas and nonattainment areas

which are not classified within the ozone region which emit, or have

the potential to emit, 100 tpy or more of NOx or 50 tpy or more of VOC.

New Hampshire is located in the ozone transport region. Emission

statement regulations must apply State-wide, and cover all stationary

sources which emit or have the potential to emit 50 tpy of VOC or 100

tpy of NOx. In addition, New Hampshire has three classified ozone

nonattainment areas and are therefore subject to the more stringent

source threshold requirement of section 182(a)(3)(B). The area which

includes all of Merrimack County, part of Hillsborough County, and part

of Rockingham County, is classified Marginal. The second nonattainment

area includes all of Strafford County and part of Rockingham County,

and is classified as Serious. Finally, a portion of New Hampshire is in

the Boston-Lawrence-Salem Consolidated Metropolitan Statistical Area

(CMSA), which is also classified as Serious. This includes a range of

cities and towns from Nashua to Exeter in portions of Hillsborough and

Rockingham Counties. For these classified ozone nonattainment areas,

the States' emission statement regulations must cover all sources which

emit VOC or NOx.

For classified ozone nonattainment areas, the States may waive,

with EPA approval, the requirement for an emission statement for

classes or categories of sources with less than 25 tons per year of

actual plant-wide NOx or VOC emissions in nonattainment areas if the

class or category is included in the base year and periodic inventories

and emissions are calculated using emission factors established by EPA

(such as those found in EPA publication AP-42) or other methods

acceptable to EPA. New Hampshire does not waive the emission statement

requirement for sources emitting less than 25 tons per year of NOx or

VOC emissions. New Hampshire requires certain sources that have

potential emissions of less than 25 tons per year to supply their data

and information required for calendar year 1992 by April 15, 1993. In

addition, these sources are required to submit emission statements for

every third calendar year, beginning with 1995, by April 15 of the

following year. All NOx emitting sources that are required to submit

emission statement information under EPA's guidance are covered in New

Hampshire's regulation. Under Env-A 901.07, fuel burning devices, as

well as miscellaneous sources having theoretical potential NOx

emissions of at least 25 tpy, are required to submit information on an

annual basis.

However, New Hampshire's regulation does not address all VOC

sources recommended in EPA's guidance. Since New Hampshire is located

in the ozone transport region, emission statement regulations must

apply State-wide and cover all sources which emit or have the potential

to emit 50 tpy of VOC. In addition, New Hampshire has three classified

ozone nonattainment areas and are therefore subject to the more

stringent source threshold requirement of section 182(a)(3)(B). These

classified nonattainment areas must require emission statement data

from all sources of VOC in the nonattainment areas unless New Hampshire

waives, with EPA approval, the requirement for an emission statement

for classes or categories of sources with less than 25 tons per year of

actual plant-wide VOC emissions in nonattainment areas. In Env-A

901.05(d), emission statements are required to be submitted for sources

which are subject to the recordkeeping requirements of Env-A 901.04 and

the applicability criteria of Env-A 1204.03. The applicability criteria

of Env-A 1204.03 cover sources subject to EPA's existing control

technique guideline (CTG) documents and other miscellaneous sources

that have the potential to emit more than 50 tpy of VOC. Env-A 901.04

covers the following sources: Any source required to be permitted under

603.02(g) (surface coating, metal cleaning, or printing); 601.02(h)

(VOC storage tanks); 603.02(i) (gasoline terminal loading racks); or

any other paragraph of 603.02 which pertains to VOC emitters, with the

exception of sources exempted by Env-A 901.03(a)(4). Env-A 901.03(a)(4)

excludes from recordkeeping requirements, those sources using No. 1 and

No. 2 fuel oils, natural gas, or electrical energy. Under New

Hampshire's rules, the requirements for emission statements do not

apply to miscellaneous VOC source categories (i.e., non-CTG) unless

those sources are covered by Env-A 603.02. Only non-CTG sources that

are coating or printing sources subject to 603.02(g) are covered by New

Hampshire's emission statement program.

In addition, the applicability criteria of Env-A 1204.03 only cover

graphic arts printing, and non-CTG sources with potential VOC emissions

greater than 50 tpy. Therefore, if certain non-CTG sources have actual

VOC emissions greater than 25 tpy, but potential emissions less than 50

tpy, they would not be covered by New Hampshire's program.

Furthermore, New Hampshire's emission statement rule specifically

excludes sources with VOC emissions resulting from combustion of No. 1

and No. 2 fuel oils, or natural gas. As a result, New Hampshire has not

required all sources that emit or have the potential to emit more than

50 tpy of VOC to submit emission statements.

Additionally, if either VOC or NOx is emitted at or above the

statutory reporting level, the other pollutant must be included in the

emission statement, even if it is emitted at levels below the specified

cutoffs. New Hampshire did not include this requirement in its rule.

New Hampshire's rule was proposed in May 1992 and EPA provided comments

in June 1992. However, this requirement was not clearly stated in EPA's

emission statement guidance until July 1992. Therefore, New Hampshire

was unaware of this requirement at the time the regulation was

proposed.

4. Reporting Requirements for Sources

Sources covered by the State emission statement program should

submit, at a minimum, the data elements described under section II.B.2

of this document.

The emission statement submitted by the source should contain a

certification that the information is accurate to the best knowledge of

the individual certifying the statement. EPA recommends that the State

program require the submission of the data from the sources no later

than April 15 of each year.

Env-A 901.05(d)(1) and 901.07(b)(1) require sources subject to the

emission statement requirement to submit data for the calendar year

1992 by April 15, 1993. Furthermore, these sections require that

information for each subsequent calendar year be submitted by April 15

of the following year.

New Hampshire does require a certification of data accuracy under

Env-A 901.04(b) and 901.06(b), however, this certification is not

required to accompany the emission statement forms. In a June 24, 1992

comment letter, EPA commented ``the certificate of data accuracy shall

state, at a minimum, that the records required by Env-A and maintained

at the facility are true and accurate. Also, the certificate of data

accuracy must be submitted with each emission statement.'' New

Hampshire's rule only requires that the certification be kept on the

premises.

5. Reporting Forms

Although EPA has developed a proposed format for the emission

statement reporting process in its guidance document, the Act allows

States to develop their own format for emission statement reporting.

New Hampshire has not specified a format in which facilities are to

submit data.

III. Proposed Action

Because of the above deficiencies, EPA cannot grant approval of New

Hampshire's rule under section 110(k)(3) and part D. EPA may grant a

limited approval of the submitted rule under section 110(k)(3) in light

of EPA's authority pursuant to section 301(a) to adopt regulations

necessary to further air quality by strengthening the SIP. The approval

is limited because EPA's action also contains a simultaneous limited

disapproval. In order to strengthen the SIP, EPA is proposing a limited

approval of Chapter Env-A 900 ``Owner or Operator Obligations'' (Parts

901-903) under sections 110(k)(3) and 301(a) of the CAA.

At the same time, EPA is also proposing a limited disapproval of

this rule because it does not fully meet section 182(a)(3)(B) of part D

of the Act. As provided under section 179(a) of the Act, the State will

have up to 18 months after a final SIP disapproval to correct the

deficiencies that are the subject of the disapproval before EPA is

required to impose one of the two sanctions set forth in section 179(b)

of the Act: either highway sanctions or new source review offsets. If

the State has not corrected its deficiencies within 6 months after

imposition of the first sanction, EPA must impose the second sanction.

Any sanction EPA imposes must remain in place until EPA determines that

the State has met the 1990 Amendments requirements. Note also that any

final rulemaking disapproving the State's submission will trigger the

requirement for EPA to impose a Federal implementation plan within two

years of disapproval as provided under section 110(c)(1) of the Act.

IV. Request for Public Comments

Public comments are solicited on the requested SIP revision and on

EPA's proposal of a limited approval/limited disapproval. Public

comments received by October 20, 1994 will be considered in the

development of USEPA's final rulemaking action.

V. Administrative Requirements

A. Executive Order (EO) 12866

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989. 54 FR 2214-2225. On January 6, 1989, the Office of

Management and Budget (OMB) waived Table 2 and 3 SIP revisions, 54 FR

2222, from the requirements of section 3 of Executive Order 12291 for a

period of 2 years. USEPA has submitted a request for a permanent waiver

for Table 2 and 3 SIP revisions. OMB has agreed to continue the

temporary waiver until such time as it rules on USEPA's request. This

request continues in effect under Executive Order 12866 which

superseded Executive Order 12291 on September 30, 1993.

B. Regulatory Flexibility

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 economic 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

Clean Air Act do not create any new requirements, but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP-approval does not impose any new requirements, I certify

that it does not have a significant impact on small entities. 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).

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.

List of Subjects in 40 CFR Part 52

Air pollution control, Hydrocarbons, Intergovernmental relations,

Nitrogen dioxide, Oxides of nitrogen, Reporting and recordkeeping

requirements, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: September 6, 1994.

John P. DeVillars,

Acting Regional Administrator, Region I.

[FR Doc. 94-23241 Filed 9-19-94; 8:45 am]

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