Approval and Promulgation of Air Quality Implementation Plans; Rhode Island Non-CTG RACT

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RI7-1-5812; A-1-FRL-5226-3]

Approval and Promulgation of Air Quality Implementation Plans;

Rhode Island Non-CTG RACT

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Revisions to the State Implementation Plan (SIP) for the State

of Rhode Island were received by the Environmental Protection Agency

(EPA) on January 25, 1993 and November 1, 1994. The intended effect of

the revisions was to change two regulations, both of which require the

implementation of reasonably available control technology (RACT) for

certain sources of volatile organic compounds (VOCs), as required by

the Clean Air Act, as amended in 1990 (the Act). The EPA has evaluated

these modifications to Rhode Island's regulations and by this notice is

proposing to approve one of the revised regulations into the SIP. EPA

is also proposing a limited approval/limited disapproval of one of the

revised regulations. This action is being taken under Section 110(k)(3)

of the Act.

DATES: Comments must be received on or before August 7, 1995. Public

comments on this document are requested and will be considered before

taking final action on this SIP revision.

[[Page 35362]]

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director,

Air, Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region I, JFK Federal Bldg., Boston, MA 02203-2211.

Copies of the State submittal and EPA's technical support document are

available for public inspection during normal business hours, by

appointment at the Air, Pesticides and Toxics Management Division, U.S.

Environmental Protection Agency, Region I, One Congress Street, 10th

floor, Boston, MA and the Division of Air Resources, 291 Promenade

Street, Providence, RI.

FOR FURTHER INFORMATION CONTACT: Anne Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On January 25, 1993, the Rhode Island DEM

submitted a revision to its SIP. The revision consists of changes made

pursuant to the requirements of Section 182(b)(2) of the Act to the

following Rhode Island Air Pollution Control Regulations: Air Pollution

Control Regulation Number 15, ``Control of Organic Solvent Emissions,''

and Air Pollution Control Regulation Number 21, ``Control of Volatile

Organic Compound Emissions from Printing Operations.'' On November 1,

1994, the Rhode Island DEM submitted a second revision to Air Pollution

Control Regulation Number 15.

I. Background

Under the pre-amended Clean Air Act (i.e., the Clean Air Act before

the enactment of the amendments of November 15, 1990), ozone

nonattainment areas were required to adopt RACT rules for sources of

VOC emissions. EPA issued three sets of control technique guideline

(CTG) documents, establishing a ``presumptive norm'' for RACT for

various categories of VOC sources. The three sets of CTGs were: (1)

Group I--issued before January 1978 (15 CTGs); (2) Group II--issued in

1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 CTGs).

Those sources not covered by a CTG were called non-CTG sources. EPA

determined that the area's SIP-approved attainment date established

which RACT rules the area needed to adopt and implement. Under Section

172(a)(1), ozone nonattainment areas were generally required to attain

the ozone standard by December 31, 1982. Those areas that submitted an

attainment demonstration projecting attainment by that date were

required to adopt RACT for sources covered by the Group I and II CTGs.

Those areas that sought an extension of the attainment date under

Section 172(a)(2) to as late as December 31, 1987 were required to

adopt RACT for all CTG sources and for all major (i.e., 100 ton per

year or more of VOC emissions) non-CTG sources.

Under the pre-amended Clean Air Act, the entire State of Rhode

Island was designated as nonattainment for ozone and did not seek an

extension of the attainment date under Section 172(a)(2). Therefore,

the State was only required to adopt RACT for sources covered by the

Group I and II CTGs. In lieu of adopting some of the Group II CTG

regulations, however, Rhode Island adopted and submitted a regulation

covering all unregulated major (i.e., 100 ton per year or more of VOC

emissions) non-CTG sources. However, the State of Rhode Island did not

attain the ozone standard by the approved attainment date. On May 25,

1988, EPA notified the Governor of Rhode Island that portions of the

SIP were inadequate to attain and maintain the ozone standard and

requested that deficiencies in the existing SIP be corrected (EPA's

SIP-Call). Rhode Island adopted corrections to the State rules on

December 10, 1989 which were approved into the State SIP on September

30, 1991. On November 15, 1990, amendments to the Clean Air Act were

enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-

7671q. In Section 182(a)(2)(A) of the amended Act, Congress adopted the

requirement that pre-enactment ozone nonattainment areas that retained

their designation of nonattainment and were classified as marginal or

above fix their deficient RACT rules for ozone by May 15, 1991. All of

Rhode Island was classified as serious nonattainment for ozone. 56 FR

56694 (Nov. 6, 1991). The SIP revisions approved on September 30, 1991

made Rhode Island's RACT rules consistent with existing CTGs and no

revisions were required to meet the fix-up requirements.

Section 182(b)(2) of the amended Act requires States to adopt RACT

rules for all areas designated nonattainment for ozone and classified

as moderate or above. There are three parts to the Section 182(b)(2)

RACT requirement: (1) RACT for sources covered by an existing CTG--

i.e., a CTG issued prior to the enactment of the 1990 amendments to the

Act; (2) RACT for sources covered by a post-enactment CTG; and (3) all

major sources not covered by a CTG, i.e., non-CTG sources. This RACT

requirement applies to nonattainment areas that were previously exempt

from certain RACT requirements to ``catch up'' to those nonattainment

areas that became subject to such requirements during an earlier

period. In addition, it requires newly designated ozone nonattainment

areas to adopt RACT rules consistent with those for previously

designated nonattainment areas.

On October 30, 1992, Rhode Island adopted regulations to meet the

RACT ``catch-up'' requirement which were approved into the State SIP on

October 18, 1994 (59 FR 52427). However, under Section 182 of the Act,

the major source definition for serious nonattainment areas was lowered

to include sources that have a potential to emit 50 tons or greater of

VOCs per year. Therefore, the State also needed to lower the

applicability cutoff of its graphic arts and non-CTG regulations

(Regulations 21 and 15, respectively) to include newly classified major

sources in these categories. On January 15, 1993, Rhode Island

submitted revisions to Regulations 15 and 21 to EPA as a SIP revision

and on November 21, 1994, Rhode Island submitted a second revision to

Regulation 15 to EPA as a SIP revision.

In addition, under Section 182 of the Act, Rhode Island is also

required to implement RACT for all VOC sources covered by a post-

enactment CTG. A CTG for two source categories, SOCMI (synthetic

organic chemical manufacturing industry) Distillation and SOCMI

Reactors, was issued on November 15, 1993. On April 5, 1995, Rhode

Island submitted a negative declaration for these two source

categories.

The amendments to Regulations 15 and 21 will reduce VOC emissions.

VOCs contribute to the production of ground level ozone and smog. These

rules were adopted as part of an effort to achieve the National Ambient

Air Quality Standard (NAAQS) for ozone. The following is EPA's

evaluation and proposed action for the changes to Rhode Island's Air

Pollution Control Regulations Number 15 and 21 and for the negative

declarations submitted by the State.

II. EPA Evaluation and Proposed Action

Rhode Island submitted a negative declaration for the SOCMI

Distillation and SOCMI Reactor source categories. Through the negative

declaration, the State of Rhode Island is asserting that there are no

sources within the State would be subject to a rule for these source

categories. EPA is proposing to approve this negative declaration as

meeting the Section 182(b)(2) RACT requirements for these two source

categories. However, if evidence is submitted during the comment period

that there are existing sources within the State of Rhode Island that,

for purposes of meeting the RACT

[[Page 35363]]

requirements, would be subject to a rule for these categories, if

developed, EPA would be unable to take final approval action on the

negative declarations.

Rhode Island also submitted revisions to its Regulation 21 (graphic

arts rule) and its Regulation 15 (RACT for major non-CTG sources). In

determining the approvability of a VOC rule, EPA must evaluate the rule

for consistency with the requirements of the Act and EPA regulations,

as found in Section 110 and Part D of the Act and 40 CFR Part 51

(Requirements for Preparation, Adoption, and Submittal of

Implementation Plans). EPA's interpretation of these requirements,

which forms the basis for today's action, appears in various EPA policy

guidance documents. The specific guidance relied on for this action is

referenced within the technical support document and this notice. For

the purpose of assisting State and local agencies in developing RACT

rules, EPA prepared a series of CTG documents. The CTGs are based on

the underlying requirements of the Act and specify presumptive norms

for RACT for specific source categories. EPA has not yet developed CTGs

to cover all sources of VOC emissions. Further interpretations of EPA

policy are found in, but not limited to, the following: 1) the proposed

Post-1987 ozone and carbon monoxide policy, 52 FR 45044 (November 24,

1987); 2) the document entitled, ``Issues Relating to VOC Regulation

Cutpoints, Deficiencies, and Deviations, Clarification to Appendix D of

November 24, 1987 Federal Register Notice,'' otherwise known as the

``Blue Book'' (notice of availability was published in the Federal

Register on May 25, 1988); 3) the ``Model Volatile Organic Compound

Rules for Reasonably Available Control Technology,'' (Model VOC RACT

Rules) issued as a staff working draft in June of 1992; and 4) in the

existing CTGs. In general, these guidance documents have been set forth

to ensure that VOC rules are fully enforceable and strengthen or

maintain the SIP.

The significant changes to Rhode Island's VOC regulations that were

included in the January 25, 1993 and November 1, 1994 submittals are

briefly summarized below.

Section 15.1

Rhode Island amended the definition of ``Volatile organic

compound'' to be consistent with EPA's definition published in the

February 3, 1992 Federal Register. Although Rhode Island's definition

of VOC contains the additional language ``Classification of methylene

chloride as an exempt compound does not relieve the facility of the

requirements of Regulation 22 (Air Toxics)'' which is not included in

EPA's definition of VOC, this language was not submitted as part of the

SIP revision.

Section 15.2

This section has been amended to include the new applicability

requirements for sources with potential VOC emissions of 50 tons per

year or more, while keeping the compliance deadlines for sources which

were subject under previous versions of this regulation. Section 15.2.3

lists equipment or pollution emitting activities that are not subject

to RACT, including activities that are regulated by Air Pollution

Control Regulations 11, 18, 19, 21, 22.6, 25 and 26, or which have been

determined to be BACT or LAER in a permit issued by the Division after

November 15, 1990 pursuant to Air Pollution Control Regulation No. 9;

application of pesticides; and blending of distillate or residual fuel

oils.

Section 15.2.3 of the January 23, 1993 submittal also exempted

emissions from tenter frames and from coatings used to meet U.S.

military performance specifications which cannot be reformulated. This

is inconsistent with EPA guidance because it may have resulted in the

exemption of major sources, and was therefore not approvable. Rhode

Island's November 1, 1994 submittal removed these exemptions. This

section is therefore approvable.

Section 15.3

Rhode Island removed requirements from Regulation 15, previously

found in 15.3, which had defined requirements for miscellaneous

facilities emitting less than 100 tons per year. Under this section,

sources which emitted more than 40 pounds/day/unit or 100 pounds/day/

facility of VOC containing ``highly photochemically reactive solvent''

as previously defined in the regulation were required to reduce

emissions to a level of 85% control or RACT. Rhode Island has deleted

these requirements from the regulation. Section 193, the General

Savings Clause, of the Clean Air Act states that no control requirement

adopted prior to the enactment of the Clean Air Act Amendments of 1990

may be modified after enactment unless the modification insures

equivalent or greater emission reductions. Although the above mentioned

requirements were deleted from Regulation 15, Rhode Island's

regulations will cover approximately the same sources, because the

applicability thresholds in several regulations have been lowered. For

example, Regulations 15 and 21 now cover sources with the potential to

emit 50 TPY year. Also, Regulation 19, which covers most existing

surface coating categories in the State, previously had an

applicability threshold of potential emissions of 100 tons per year,

now has an applicability threshold of 15 lbs/day. Thus, EPA has

determined that Rhode Island's regulatory amendments insure equivalent

or greater emissions reductions consistent with Section 193 of the

Clean Air Act.

Section 15.3 now defines RACT for major sources. Section 15.3

essentially establishes three RACT options. The first option allows

sources submitting a RACT plan by July 28, 1993, to define RACT

specifically for that facility, subject to the approval of the State

and EPA. This would require a case-by-case SIP revision. Sources not

submitting a plan by July 28, 1993 may demonstrate compliance by

installing controls which reduce inlet emissions by at least 95% and

which are designed to capture and control emissions to obtain an

overall reduction efficiency of 85% of uncontrolled VOC emissions.

Alternately, the source may demonstrate compliance through reducing

daily VOC use and emissions so that actual emissions do not exceed 20%

of the daily VOC emissions during 1990, calculated on either a mass of

VOC per mass of solids applied basis in the case of surface coating

sources, or a mass of VOC per unit production basis. These two methods

would not require a case-by-case revision to Rhode Island's SIP to make

RACT federally enforceable.

Section 15.3.5

Section 15.3.5 has been amended to allow carbon adsorbers a 7-day

rolling average compliance time. Previously, sources were required to

comply with a 24-hour averaging time, or the length of the adsorption

cycle, whichever is less. A section has been added that states

specifically how compliance with a 7-day rolling average shall be

determined, and allows the source to apply for a longer averaging time.

This is consistent with EPA's model rule, Section

XX.3083(a)(2)(iii)(A), which allows compliance to be determined based

on a 7-day rolling average. The model rule allows a source to petition

for a longer averaging time, not to exceed 30 days, using Appendix A.

In addition to the 7-day rolling average, Rhode Island does allow a

longer averaging time at the Director's discretion, and requires that

the longer averaging time be consistent with EPA guidance, and is not

to exceed a 30 day rolling average.

[[Page 35364]]

Sections 15.3.7-15.3.10

The main issue associated with this action concerns the generic

nature of Sections 15.3.7-15.3.9. Section 182(b)(2) of the Clean Air

Act requires that a SIP revision be submitted by November 15, 1992

including ``provisions to require the implementation of reasonably

available control technology ....'' In addition, the necessary SIP

revision is required to ``provide for the implementation of the

required measures as expeditiously as practicable but no later than May

31, 1995.'' For major non-CTG sources of VOCs not regulated under the

Act prior to the 1990 Amendments, the addition of 15.3.7-15.3.10 sets

forth both presumptive RACT norms and processes by which RACT can be

established for those sources that cannot meet the presumptive norms.

However, Section 182(b)(2) of the Clean Air Act requires that a SIP

revision be submitted by November 15, 1992 including ``provisions to

require the implementation of reasonably available control technology

...'' In addition, the necessary SIP revision is required to ``provide

for the implementation of the required measures as expeditiously as

practicable but no later than May 31, 1995.''

Since Section 15.3.10 defines presumptive norms for RACT, and is

consistent with EPA's Model VOC RACT Rules for ``Other Facilities that

Emit Volatile Organic Compounds,'' that portion of the regulation meets

the requirements of Section 182. However, since the option for meeting

RACT defined in Sections 15.3.7 through 15.3.9 describes a process by

which RACT can be defined but does not specifically define RACT for

each source to which such option applies, that portion of the rule is

not approvable at this time. Therefore, EPA is proposing a limited

approval/limited disapproval of Regulation 15. To receive full

approval, Rhode Island will need to define explicitly, and have

approved by EPA, RACT for all of those sources which do not choose to

conform to the presumptive RACT options outlined in the regulation.

Alternatively, if it is determined that none of the affected sources

will rely on Sections 15.3.7 through 15.3.9 to implement RACT,

Regulation 15 can be fully approved upon Rhode Island making such a

demonstration.1

\1\ According to information provided verbally by Rhode Island

DEM staff on June 13, 1995, the State will be submitting single

source SIP revisions for the following sources: Hoechst Celanese;

CCL Custom Manufacturing, Inc.; and Cranston Print Works.

Section 21.2

Sections 21.2.1 and 21.2.4 change the applicability of the

regulation from potential to emit 100 tons per year to potential to

emit 50 tons per year. This change was made to address, in part, the

requirement that Rhode Island impose RACT requirements on all major

sources. EPA had made the determination that RACT, as originally

defined for graphic arts sources greater than 100 TPY, is appropriate

for sources down to 50 tons per year. Section 21.2.2 exempts emissions

from equipment used for research, so long as emissions from all such

equipment at the facility do not exceed 450 pounds in any month. This

exemption is consistent with the model rule. (See XX.3001(c) of the

model rule, which allows equipment at a facility to be exempted if the

equipment is used exclusively for chemical or physical analysis or

determination of product quality and commercial acceptance if the total

actual emissions do not exceed 450 lbs/month.)

Section 21.3.2

Section 21.3.2 has been amended to allow carbon adsorbers a 7-day

rolling average compliance time. This change is similar to the change

made to Section 15.3.5, and is consistent with EPA's model rule.

Proposed Action

EPA has evaluated Rhode Island's submittal for consistency with the

Act, EPA regulations, and EPA policy. EPA is proposing to approve Rhode

Island's negative declaration for the SOCMI Reactors and SOCMI

Distillation source categories as meeting the requirements of Section

182(b)(2) of the Act for these source categories. In addition, EPA has

determined that the changes made to Regulation 21 of Rhode Island's Air

Pollution Control Regulations meet the requirements of Section

182(b)(2) of the Act. Therefore, EPA is proposing approval under

Section 110(k)(3) of Regulation 21.

However, EPA has determined that Sections 15.3.7, 15.3.8, and

15.3.9 of Regulation 15, do not meet all of the Act's requirements for

the reasons described above. EPA believes that approval of Regulation

15 will strengthen the SIP but because of the above-mentioned

deficiencies, the rule does not meet the requirements of Section

182(b)(2) of the CAA. In light of such deficiencies, EPA cannot grant

full approval of this rule under Section 110(k)(3) and Part D. However,

EPA may grant a limited approval of the submitted rule under Section

110(k)(3) and 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 includes a limited

disapproval, due to the fact that this rule does not meet the

requirement of Section 182(b)(2) because of the deficiencies noted

above. Thus, in order to strengthen the SIP, EPA is proposing a limited

approval of Rhode Island's Regulation 15 under Section 110(k)(3) and

301(a) of the CAA. As stated, EPA is also proposing a limited

disapproval of Regulation 15 under Sections 110(k)(3) and 301(a) of the

Act because the rule contains deficiencies that have not been corrected

as the Act requires.

Under Section 179(a)(2), if the Administrator disapproves a

submission under Section 110(k) for an area designated nonattainment

based on the submission's failure to meet one or more of the elements

required by the Act, the Administrator must apply one of the sanctions

set forth in Section 179(b) unless the deficiency has been corrected

within 18 months of such disapproval. Section 179(b) provides two

sanctions available to the Administrator: highway funding and offsets.

The 18-month period referred to in Section 179(a) will begin on the

effective date established in the final limited disapproval. If the

deficiency is not corrected within 6 months of the imposition of the

first sanction, the second sanction will apply. This sanctions process

is set forth at 59 FR 39832 (Aug. 4, 1994), to be codified at 40 CFR

52.31. Moreover, the final disapproval triggers the federal

implementation plan (FIP) requirement under Section 110(c).

EPA is not taking action on Section 15.2.2., the last sentence of

Section 15.1.2, the last sentence of Section 21.1.7., and Section

21.2.3, as these were not submitted by the State as part of the January

25, 1993 or November 1, 1994 submittals.

EPA's evaluation of all the submitted regulations is detailed in

memoranda, dated 11/2/94 and 1/9/95 entitled ``Technical Support

Document for Rhode Island's Revised Regulations for Non-CTG RACT'' and

``Technical Support Document for Rhode Island's Revised Regulations for

Non-CTG RACT--Addendum.'' Copies of these documents are available, upon

request, from the EPA Regional Office listed in the ADDRESSES section

of this action. Interested parties may participate in the Federal

rulemaking procedure by submitting written comments to the EPA Regional

office listed in the ADDRESSES section of this action.

Nothing in this action should be construed as permitting or

allowing or

[[Page 35365]]

establishing a precedent for any future request for revision to any

State implementation plan. Each request for revision to the State

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 182(b)(2) of

the Clean Air Act. These rules may bind State, local and tribal

governments to perform certain actions and also require the private

sector to perform certain duties. To the extent that the rules being

proposed for approval by this action would impose no new requirements;

such sources are already subject to these regulations under State law.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action. EPA has

also determined that this proposed action does not include a 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 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), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future notice will inform the general public of

these tables. The Office of Management and Budget has exempted this

regulatory action from Executive Order 12866 review.

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. Secs. 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 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 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

Act 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).

Also, EPA's limited 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 limited

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's limited disapproval of the submittal

does not impose any new requirements. Therefore, EPA certifies that

this limited disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements not does it impose any new requirements.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental regulations, Ozone,

Reporting and recordkeeping requirements, and Volatile organic

compounds.

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

Dated: June 26, 1995.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 95-16756 Filed 7-6-95; 8:45 am]

BILLING CODE 6560-50-P