Approval and Promulgation of State Implementation Plan, North Carolina: Approval of Cape Industries, Air Permit No. 130R17

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NC-43-1-9618a; FRL-5609-1]

Approval and Promulgation of State Implementation Plan, North

Carolina: Approval of Cape Industries, Air Permit No. 130R17

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On August 17, 1989, the State of North Carolina issued to Cape

Industries, located in Wilmington, New Hanover County, North Carolina,

air permit number 130R11, which set the sulfur dioxide emission limit

at 2.3 pounds per million British Thermal Units (BTU). The State then

submitted this permit to EPA on September 21, 1989, for approval as a

revision to the State implementation plan (SIP). Air permit number

130R11 expired on October 1, 1991, and was subsequently replaced by the

current Cape Industries air permit number 130R17 on December 29, 1994.

Upon review of the permit, EPA finds that the designated limit for Cape

Industries is adequate to protect the ambient standard and approves

this permit.

DATES: This action is effective November 19, 1996 unless adverse or

critical comments are received by October 21, 1996. If the effective

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

Register.

ADDRESSES: Written comments on this action should be addressed to Mr.

Randy Terry at the EPA Regional Office listed below.

Copies of the documents relative to this action are available for

public inspection during normal business hours at the following

locations. The interested persons wanting to examine these documents

should make an appointment with the appropriate office at least 24

hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), US

Environmental Protection Agency, 443, 401 M Street, SW, Washington DC

20460

Environmental Protection Agency, Region IV Air Programs Branch, 345

Courtland Street NE, Atlanta, Georgia 30365

North Carolina Department of Environment, Health, and Natural

Resources, Division of Environmental Management, P.O. Box 29535,

Raleigh, North Carolina 27626-0535

FOR FURTHER INFORMATION CONTACT: Mr. Randy Terry, Regulatory Planning

and Development Section, Air Programs Branch, Air, Pesticides & Toxics

Management Division, Region IV Environmental Protection Agency, 345

Courtland Street NE, Atlanta, Georgia 30365. The telephone number is

404/347-3555, ext. 4212.

SUPPLEMENTARY INFORMATION: On December 7, 1982 (47 FR 54934), EPA

announced approval of a revised sulfur dioxide (SO2) emission limit for

most fuel-burning sources in North Carolina. This revision raised the

emission limit of SO2 from 1.6 pounds per million BTU to 2.3

pounds per million BTU. Cape Industries, located in Wilmington, New

Hanover County, North Carolina, was included in this rulemaking, but

was not allowed to increase it's emission level until such time that

appropriate conditions could be applied to ensure that the ambient

standard was not violated. These conditions included the issuance of an

air permit. On August 17, 1989, North Carolina Environmental Management

Commission issued air permit no. 130R11 to Cape Industries. On

September 21, 1989, the State of North Carolina, through the North

Carolina Department of Environment, Health and Natural Resources

submitted this permit to EPA for approval as a revision to the North

Carolina SIP regarding the SO2 emissions limitation for Cape

Industries. In a letter dated November 25, 1991, EPA responded to the

Cape Industries submittal with several comments concerning the

enforceability of the permit. EPA determined North Carolina's emission

standards did not contain the specific test method, the test run

duration, and the averaging time for each emission standard, and was

therefore unenforceable. EPA also stated that the permit should be

revised to include the opacity limits of each emission point. EPA

directed North Carolina to address these sections before the permit

could be approved. On March 2, 1994, North Carolina submitted a letter

to EPA which effectively responded to all of EPA's concerns and

demonstrated that the permit contains adequate recordkeeping and

testing requirements.

However, in May, 1994, Cape Industries submitted a modeling

protocol to EPA requesting a permit modification to remove current fuel

use and boiler firing limitations which were used as permit conditions

to avoid an earlier PSD applicability issue. Since the proposed

modifications would affect the previous permit conditions which were

used as a basis to demonstrate compliance with the Sulfur Dioxide SIP,

Cape Industries also submitted this protocol as a Sulfur Dioxide SIP

revision. This Modeling protocol was not approveable and on July 28,

1994, EPA responded with a letter outlining the areas that must be

addressed. On March 14, 1996, in response to the July 28, 1994, EPA

letter, Cape Industries officially withdrew their request for the

permit modification. During this time the original Cape Industries air

permit expired and air permit number 130R17 was issued.

Final Action

EPA is approving Cape Industries' air permit No. 130R17 submitted

on August 9, 1996, for incorporation into the North Carolina SIP. The

EPA is publishing this action without prior proposal because the EPA

views this as a noncontroversial amendment and anticipates no adverse

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

publication, the EPA is proposing to approve the SIP revision should

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

October 21, 1996 unless, within 30 days of its publication, adverse or

critical comments are received.

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

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective November 19, 1996.

The EPA has reviewed this request for revision of the Federally-

approved SIP

[[Page 49414]]

for conformance with the provisions of the 1990 Amendments enacted on

November 15, 1990. The EPA has determined that this action conforms

with those requirements irrespective of the fact that the submittal

preceded the date of enactment.

Under section 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.

7607(b)(1), petitions for judicial review of this action must be filed

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

November 19, 1996. Filing a petition for reconsideration by the

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

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

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

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

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

section 307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2)).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 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.

SIP approvals under 110 and subchapter I, part D of the CAA do not

create any new requirements, but simply approve requirements that the

State is already imposing. Therefore, because the Federal SIP-approval

does not impose any new requirements, I certify that it does not have a

significant impact on any small entities affected. Moreover, due to the

nature of the Federal-state relationship under the CAA, preparation of

a regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of state action. The CAA forbids EPA to

base its actions concerning SIPs on such grounds. Union Electric Co. v.

U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section

7410(a)(2).

Submission to Congress and the General Accounting Office

Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. section 804(2).

Unfunded Mandates

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 110 of the

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

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

by this action will impose any mandate upon the State, local or tribal

governments either as the owner or operator of a source or as a

regulator, or would impose any mandate upon the private sector. EPA's

action will 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 final 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides.

Dated: June 6, 1996.

Michael V. Peyton,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

2. Section 52.1770, is amended by adding paragraph (c)(91) to read

as follows:

Sec. 52.1770 Identification of plan.

* * * * *

(91) The North Carolina Department of Environment, Health and

Natural Resources submitted revisions to the North Carolina State

Implementation Plan on September 21, 1989. These revisions incorporate

SO2 limits and permit conditions for Cape Industries.

(i) Incorporation by reference.

(A) Permit for Cape Industries (air permit no. 130R17) which was

issued by the Environmental Management Commission on December 29, 1994.

(ii) Additional material--none.

[FR Doc. 96-24045 Filed 9-19-96; 8:45 am]

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