Approval and Promulgation of Air Quality Implementation Plans; District of Columbia; Disapproval of New Source Review Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC 13-1-6552a; FRL-5177-7]

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia; Disapproval of New Source Review Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision

submitted by the District of Columbia pertaining to the regulation of

major new and major modified sources in the District of Columbia. The

intended effect of this action is to disapprove the District of

Columbia regulations because they do not meet the requirements of the

Clean Air Act. This action is being taken under section 110 of the

Clean Air Act.

DATES: This action will become effective May 23, 1995 unless adverse

comments are received on or before April 24, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate

Director, Air Programs (3AT00), U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the Air, Radiation,

and Toxics Division, U.S. Environmental Protection Agency, Region III,

841 Chestnut Building, Philadelphia, Pennsylvania 19107 and the

District of Columbia Department of Consumer and Regulatory Affairs,

2100 Martin Luther King Ave, SE., Washington, DC 20020.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at

the EPA Region III address.

SUPPLEMENTARY INFORMATION: On June 21, 1985 and October 22, 1993, the

District of Columbia submitted a formal revision to its State

Implementation Plan (SIP). Only the portions of those submittals

pertaining to the permitting of new sources is being addressed in this

rulemaking. The SIP submittal being addressed consists of District of

Columbia Municipal Regulations (DCMR) Title 20, Sections 199

(definitions--only those pertaining to the permitting of new sources),

200, 201, 202 and 204 (permitting), and 299 (reference to the

applicability of definitions in Section 199).

The District of Columbia (the District) is part of the Washington

D.C. ozone nonattainment area, which includes portions of Maryland and

Virginia. Washington D.C. is a nonattainment area classified as serious

for ozone and moderate for carbon monoxide and, as such, is required to

implement certain requirements including those pertaining to the

permitting of major new and major modified sources. The Clean Air Act

required that areas such as the District submit adopted regulations

applying to the permitting of these major sources by no later than

November 15, 1992. In addition, section 184 of the Clean Air Act

requires that [[Page 15484]] areas located in the ozone transport

region, of which the District is a part, submit a new source review

program applicable to major new and major modified sources. The Act

defines major sources in serious ozone nonattainment areas as those

with the potential to emit greater than or equal to 50 tons per year of

VOC or NOx emissions. Therefore, although section 184 requires that

areas in the ozone transport region (OTR) define major sources as those

with the potential to emit greater than or equal to 50 TPY VOC or 100

TPY NOx emissions, the more stringent major source threshold of 50 TPY

for serious ozone nonattainment areas supersedes the OTR requirement.

The Act requires that moderate carbon monoxide (CO) nonattainment

areas, such as the District, control its new CO sources with potential

emissions greater than or equal to 100 TPY and its major modified

sources where potential emissions were increasing by greater than 40

TPY. On July 6, 1993, EPA made a finding that the District failed to

submit the required new source review regulations and started the 18

month sanctions clock under section 179 of the Act. On October 22,

1993, the District submitted the required regulations, which were

subsequently determined by EPA to be complete and stopped the sanctions

clock.

Summary of SIP Revision

The District of Columbia submittals include more than the required

construction permitting program for major new and major modified

sources required under section 182 of the Act. Sections 200, 201, 202,

and 204 of the DCMR regulations apply to both major and minor sources

and to sources wishing to obtain construction or operating permits.

Section 299 is an administrative section stating that the definitions

in Section 199 apply to Chapter 2. Section 199 contains the definitions

applicable to all of the District's regulations. Those definitions

contained in Section 199 that apply to the permitting program, and

which are the subject of this rulemaking action, are: actual emissions,

allowable emissions, begin actual construction, commence, complete,

emissions unit, federally enforceable, major modification, major

stationary source, modification, necessary preconstruction approvals or

permits, net emissions increase, new source, potential to emit,

shutdown, significant, and stationary source.

The DC regulations at Sections 200, 201, 202, and 204 include a

number of deficiencies that make the submittal unapprovable. The two

most significant flaws are the lack of public notice and comment

requirements for proposed new sources, and the existence of a provision

in the regulation that would allow the Mayor to grant temporary permits

on a month by month basis, allowing circumvention of the entire NSR

regulation. The requirement for providing public notice and comment on

all major new source and major modified source permits is contained in

40 CFR part 51. The District's regulation does not provide such

required public notice and comment. These two flaws alone are so

significant as to warrant disapproval of the District's 1985 and 1993

NSR SIP submittals. The other deficiencies include the lack of clarity

in requiring consistency of emission offsets with the RFP baseline, the

determination of the amount of emission offsets required (separate

summation of VOC and NOX emissions for offset purposes), location

of emission offsets, timing of the enforceability of the emission

offsets, creditability of emission offsets relative to other Clean Air

Act requirements, the definition of stationary source as it pertains to

nonroad engines, a provision that allows circumvention of the offset

requirement (Section 204.9), and the de minimis provisions of section

182(c)(6).

The District's regulations at Section 200.11 also include an

exemption for fuel-burning equipment, which has a capacity of 5 million

or less BTU per hour (mmBTU/hr) of heat input and, which uses for fuel

only gaseous fuels or distillate oils. This exemption is not approvable

because the Act, as amended in 1990, requires that states with ozone

nonattainment areas control major sources of nitrogen oxides (NOX)

as well as volatile organic compounds (VOCs). In the District, a major

source of VOC or NOX is defined as that which has the potential to

emit 50 tons per year or more. Fuel burning equipment are sources of

NOX emissions and while an individual piece of equipment with a

capacity of 5 mmBTU/hr heat input would likely not generate emissions

greater than 50 TPY potential emissions, a group of such sources at a

single facility could generate emissions over the major source size

threshold. If the District wishes to exempt any group of NOX

sources that would be considered major, it must apply for and receive a

waiver under section 182(f) of the Act. EPA's guidance on the criteria

for approval of NOX exemptions under section 182(f) is contained

in EPA documents including, ``Guideline for Determining the

Applicability of Nitrogen Oxide Requirements under Section 182(f)'',

December 1993 and subsequent memoranda. The District has not made a

petition under section 182(f) but even if it had, EPA could not approve

the exclusion of major NOX sources from RACT requirements until

approval of such petition under section 182(f) were granted.

Several citations to the Clean Air Act in Section 204 of the DCMR

regulation are incorrect. Any updated references to the Act, as amended

in 1990, should reflect the appropriate provisions pertaining to new

source permitting program requirements in sections 172, 173, and other

relevant sections of the Act.

The District regulations applicable to major new and major modified

sources also do not contain the de minimis and special modification

provisions of sections 182(c) (6), (7) and (8) of the Act. These

provisions apply to sources locating in serious and severe ozone

nonattainment areas. Section 182(c)(6) is a de minimis provision that

requires that a source undergoing modifications determine whether those

modifications are major by summing its net emission increases over a 5-

year consecutive period, including the calendar year in which the

increase occurred. If the sum of the emission increases exceeds 25 TPY

over that period, the modification is considered major. Sections 182(c)

(7) and (8) apply to such sources that have exceeded the 25 ton

threshold but wish to avoid the otherwise applicable new source review

requirements. Section 182(c)(7) would allow sources with potential

emissions of less than 100 TPY to obtain 1.3 to 1 internal offsets to

avoid new source review, or else to install best available control

technology (BACT) instead of LAER technology. Section 182(c)(8) would

allow sources with potential emissions of more than 100 TPY to obtain

1.3 to 1 internal offsets in order to avoid the installation of LAER

technology. The District must adopt a regulation that reflects the

requirements of section 182(c)(6) but may choose not to adopt the

provisions in sections 182(c) (7) and (8). The consequence of simply

adopting the de minimis provisions of section 182(c)(6) but not (c)(7)

or (c)(8) is that the overall effect would be to make the District

requirements more stringent than the Act. Since the Act allows for

state regulations to be more stringent, this would be acceptable to

EPA.

The District regulations pertaining to major new and major modified

sources also do not clearly require that VOC and NOX emissions are

to be summed separately to determine applicability and the required

amount of emission offsets. In addition, emission offsets are not

explicitly required to be federally [[Page 15485]] enforceable prior to

permit issuance. The District must, at a minimum, require that VOC and

NOX emission offsets be obtained for the same pollutant and that

these emission offsets be made federally enforceable prior to permit

issuance. The separate summation of VOC and NOX emissions for

offset purposes is a required clarification. If the District elects not

to require the separate summation of VOC and NOX emissions for

applicability purposes and does not permit the netting of emissions in

order to determine NSR applicability, this would be more stringent than

the federal requirements and would be considered acceptable to EPA. If,

however, the District chooses to allow netting, a separate summation of

VOC and NOX emissions for both applicability and offset purposes

is required. In addition, Section 204.9 of the District's regulation

appears to provide sources with the ability to circumvent the offset

requirements in Section 204.4. The District must delete this provision.

The District regulation is not limited to a major new or major

modified source construction permit program. The applicability of the

District regulation (Chapter 2) includes major source operating permits

and minor source construction and operating permits. This raises

additional issues that do not pertain to the required submittal under

section 182 or 184 of the Act. Submittal of a major source operating

permit program or a minor source construction and operating permit

program is not a requirement under section 182 or 184 of the Act.

Therefore, lack or disapproval of such submittals will not result in

sanctions under section 179 pertaining to failure to submit or adopt

regulations required under section 182 or 184. Likewise, the District's

submittal of a major source operating permit program or a minor source

construction or operating permit does not fulfill the District's

requirement to submit a NSR program under sections 182 and 184 of the

Act. It is not and was not the District's intent to submit the Section

200-299 regulation to meet the requirements of title V of the Act

pertaining to major source operating permit programs. In fact, the

District has subsequently submitted a title V operating permit program

for EPA approval. The submittal being acted on today is being judged as

to whether it meets the requirements of sections 182 and 184 of title I

of the Act, pertaining to a major new and major modified source

construction permitting program, not title V requirements. The title V

submittal is not the subject of today's rulemaking action. The effect

of this rulemaking action will be to disapprove, also, the District

regulation as it pertains to a major source operating permit program as

the program submitted by the District does not meet the requirements of

sections 182 and 184 of the Act. EPA cannot approve a title V operating

permit program in lieu of a new source review (major new and major

modified source construction) program. EPA, however, encourages the

submittal of a minor source operating permit program, separate from the

major source construction permit program, which would establish

federally enforceable conditions for those sources that wish to remain

minor sources.

The effect of this rulemaking action will be to disapprove, also,

the District regulation as it pertains to minor source construction and

operating permits because it does not meet the requirements of Part D

of Subchapter I of the Act. Submittal of a minor source construction or

operating permit program does not correct the deficiencies in the major

source construction permit program, required under Part D of the Act.

The submittal addressed in this rulemaking contains provisions

pertaining to major and minor source construction permits and major and

minor source operating permits that are inextricably intertwined. Since

the District regulation does not meet Part D requirements, pertaining

to a major source construction permitting program, EPA is proposing to

disapprove the entire submittal as it pertains to permitting.

While the District may choose to modify and submit a minor source

operating permit program (subject to the criteria in the June 28, 1989

Federal Register notice) for approval into the SIP, such a submittal is

not required under section 182 or 184 of the Act and the lack of

submittal or lack of corrections to this operating permit program is

not considered a deficiency under section 182 or 184 of the Act. Any

subsequent submittal that the District makes to correct the

deficiencies in the major source construction permit program, which is

a required submittal under sections 182 and 184 of the Act, must

clearly delineate the program requirements applicable to major new or

major modified sources applying for construction permits versus

permitting requirements that may be applicable to minor sources or

sources applying for operating permits.

The requirements for a new source review construction permitting

program are contained in 40 CFR parts 51 and 52 and the Clean Air Act

and are summarized in the accompanying technical support document. Any

subsequent submittal that the District makes must meet the requirements

of the Act and 40 CFR parts 51 and 52 in order to be approved into the

District SIP. EPA is in the process of updating 40 CFR parts 51 and 52

to reflect the current requirements in the 1990 Clean Air Act

Amendments. Any future NSR submittals from the District will be judged

against the federal requirements in existence at the time of the

submittal.

EPA is disapproving this SIP revision without prior proposal

because the District's regulations contain such significant flaws that

the Agency views this as a clear-cut decision and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to disapprove the SIP revision

should adverse or critical comments be filed. This action will be

effective May 23, 1995 unless, by April 24, 1995, adverse or critical

comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent notice 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 on May 23, 1995.

Final Action

EPA is disapproving the District of Columbia Municipal Regulations

title 20, sections 200, 201, 202, 204 and 299 and the associated

definitions in section 199, pertaining to the permitting of sources.

The accompanying technical support document more fully explains the

rationale for EPA's action.

EPA is disapproving the District's permitting regulation because it

contains deficiencies that do not meet the requirements of section

182(a)(2)(C) of the CAA, and, as such, the rule does not fully meet the

requirements of part D of the Act. 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 [[Page 15486]] two sanctions available to the

Administrator: highway funding and offsets. The 18 month period

referred to in section 179(a) will begin at the time EPA publishes

final notice of this disapproval. Moreover, the final disapproval

triggers the federal implementation plan (FIP) requirement under

section 110(c).

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.

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 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.

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.

This action has been classified as a Table 2 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

an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. The OMB has exempted this

regulatory action from E.O. 12866 review.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action, pertaining to the disapproval of the

District of Columbia Municipal Regulations Title 20, Sections 200, 201,

202, 204, 299 and associated definitions in Section 199, must be filed

in the United States Court of Appeals for the appropriate circuit by

May 23, 1995. Filing a petition for reconsideration by the

Administrator of this final rule does not affect the finality of this

rule for the purposes of judicial review nor does it extend the time

within which a petition for judicial review may be filed, and shall not

postpone the effectiveness of such rule or action. This action may not

be challenged later in proceedings to enforce its requirements. (See

section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and recordkeeping requirements, Sulfur

oxides.

Dated: February 17, 1995.

Stanley Laskowski,

Acting Regional Administrator, Region III.

40 CFR part 52 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.

Subpart J--District of Columbia

2. Section 52.472 is amended by adding paragraph (f) to read as

follows:

Sec. 52.472 Approval status.

* * * * *

(f) Disapproval of revisions to the District of Columbia State

Implementation Plan, District of Columbia Municipal Regulations (DCMR)

Title 20, Sections 200, 201, 202, 204 and 299, pertaining to permitting

of sources, and associated definitions in Section 199 submitted on June

21, 1985 and October 22, 1993 by the Mayor of the District of Columbia

(1985 submittal) and by the Administrator of the District of Columbia

Environmental Regulation Administration (1993 submittal). The

disapproved regulations include those applicable to major new and major

modified sources wishing to locate in the District. A new source review

program for such major sources is required under sections 182 and 184

of the Clean Air Act. There are many deficiencies in the DCMR

permitting regulations. Some of these deficiencies are the lack of

public notice and comment procedures for new and modified sources

applying for construction permits, the existence of a provision that

allows the Mayor to grant indefinite 1-month temporary permits to those

sources whose permits he/she determines have been delayed because of

his/her office, the inclusion of a major source operating permit

program, the inclusion of a minor source operating permit program that

does not meet Part D requirements of the Act, the exemption of certain

fuel burning (nitrogen oxide emitting) sources, incorrect citations of

the Clean Air Act, a provision that allows circumvention of the offset

requirement, and the lack of the de minimis special modification

provisions required in serious and severe ozone nonattainment areas

(section 182(c)(6) of the Clean Air Act).

[FR Doc. 95-7243 Filed 3-23-95; 8:45 am]

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