Approval and Promulgation of Air Quality Implementation Plans; Rhode Island: Emissions Caps

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-18-01-7262a; A-1-FRL-5427-8]

Approval and Promulgation of Air Quality Implementation Plans;

Rhode Island: Emissions Caps

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP)

revision submitted by the State of Rhode Island. This revision approves

Air Pollution Control Act (APC) 29.3 entitled ``Emissions Caps,'' into

the Rhode Island SIP. The intended effect of this action is to approve

a SIP revision by the State of Rhode Island to incorporate regulations

for the issuance of federally enforceable operating permits which

restrict sources' potential to emit criteria

[[Page 11732]]

pollutants such that sources can avoid reasonably available control

technology (RACT), title V operating permit requirements, or otherwise

applicable requirements. This action also extends federal

enforceability to limits on hazardous air pollutants (HAPs). This

action is being taken in accordance with sections 110 and 112(l) of the

Clean Air Act.

DATES: This action is effective May 21, 1996, unless notice is received

April 22, 1996, that adverse or critical comments will be submitted. If

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

Federal Register.

ADDRESSES: Comments may be mailed to Dave Fierra Director, Office of

Ecosystem Protection, U.S. Environmental Protection Agency, Region I,

JFK Federal Building, Boston, MA 02203-2211. Copies of the documents

relevant to this action are available for public inspection during

normal business hours, by appointment at the Office of Ecosystem

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

Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and

Information Center, U.S. Environmental Protection Agency, 401 M Street,

S.W., (LE-131), Washington, D.C. 20460; and Division of Air and

Hazardous Materials Division of Rhode Island Department of

Environmental Management, 291 Promenade Street, Providence, Rhode

Island 02908.

FOR FURTHER INFORMATION CONTACT: Ida Gagnon (617) 565-3500.

SUPPLEMENTARY INFORMATION: On May 22, 1995, the State of Rhode Island

submitted a formal revision to its State Implementation Plan (SIP) to

incorporate regulations for the issuance of federally enforceable

operating permits. The revision consists of the addition of APC 23.9

entitled ``Emissions Caps.'' The State of Rhode Island adopted these

regulations in order to have the authority to issue federally

enforceable operating permits under its SIP. In order to extend the

federal enforceability of state operating permits to hazardous air

pollutants (HAPs), EPA is also approving this regulation pursuant to

section 112(l) of the Act.

Summary of SIP Revision

The State of Rhode Island's principal purpose for adopting the

operating permit regulations of APC 29.3 is to have a federally

enforceable means of expeditiously restricting potential emissions such

that sources can avoid RACT, title V operating permit requirements, or

otherwise applicable requirements, as well as reduce annual compliance

fees. The operating permit provisions in title V of the Clean Air Act

Amendments of 1990 have created additional interest in mechanisms for

limiting sources' potential to emit, thereby allowing the sources to

avoid being defined as ``major'' with respect to title V operating

permit programs. A key mechanism for such limitations is the use of

federally enforceable state operating permits (FESOPs). The EPA issued

general guidance on FESOPs in the Federal Register on June 28, 1989 (54

FR 27274). This rule making evaluates whether Rhode Island has

satisfied the requirements for this type of federally enforceable

limitation on potential to emit. Each of the five criteria, as

specified in the Federal Register of June 28, 1989, for approval of a

state's program for the issuance of FESOPs under its SIP and how the

state's submittal satisfies those criteria are presented below:

Criterion 1. The state's operating permit program (i.e. the

regulations or other administrative framework describing how such

permits are issued) must be submitted to and approved by EPA as a SIP

revision: On May 22, 1995, the State of Rhode Island submitted an

administratively and technically complete SIP revision request to EPA

consisting of Air Pollution Control Regulation No. 29.3 ``Emissions

Caps.'' That SIP revision is the subject of this rule making action.

Criterion 2. The SIP revision must impose a legal obligation that

operating permit holders adhere to the terms and limitations of such

permits (or subsequent revisions of the permit made in accordance with

the approved operating permit program) and provide that permits which

do not conform to the operating permit program requirements and the

requirements of EPA's underlying regulations may be deemed not

``federally enforceable'' by EPA: APC 29.3.5(b) requires sources to

obtain permits to operate and authorizes Rhode Island to establish

terms and conditions in these permits that are federally enforceable to

``ensure that emissions are limited by quantifiable and enforceable

means.'' Additionally, 29.3.9 requires that no source may operate after

the time it is required to submit a timely and complete application for

an operating permit under APC 29, except in compliance with an

emissions cap or an operating permit.

Criterion 3. The state operating permit program must require that

all emission limitations, controls, and other requirements imposed by

such permits will be at least as stringent as any applicable

limitations and requirements contained in the SIP, or enforceable under

the SIP, and that the program may not issue permits that waive, or make

less stringent, any limitations or requirements contained in or issued

pursuant to the SIP, or that are otherwise ``federally enforceable''

(e.g. standards established under Section 111 and 112 of the Clean Air

Act): APC 29.3.5 contains regulatory provisions which state the

emissions cap issued by the Division will be at least as stringent as

any applicable requirement and the emissions cap will not waive or make

less stringent any applicable requirement. Applicable requirement is

defined in APC 29 to include all SIP requirements.

Criterion 4. The limitations, controls, and requirements of the

state's operating permits must be permanent, quantifiable, and

otherwise enforceable as a practical matter: APC 29.3.5 and 29.3.7

contain regulatory provisions which satisfy this criterion. Emission

cap permits must be renewed every five years, but remain enforceable

pending DEM's action and timely renewal application. In addition,

subparagraphs 29.3.5(b) and (c) require that permit restrictions

contain combinations of production and/or operational limitations to

ensure emissions are limited by quantifiable and enforceable means,

including keeping sufficient records to show limitations are followed.

Criterion 5. The state operating permits must be issued subject to

public participation. This means that the state agrees, as part of its

program, to provide EPA and the public with timely notice of the

proposal and issuance of such permits, and to provide EPA, on a timely

basis, with a copy of each proposed (or draft) and final permit

intended to be ``federally enforceable.'' This process must also

provide for an opportunity for public comment on the permit

applications prior to issuance of the final permits: APC 29.3.6

contains provisions that the Division will either deny the emissions

cap or give public notice of its intention to issue an emissions cap.

The general public will be notified of DEM's intention to issue an

emissions cap by publishing a notice in a newspaper. The applicant,

EPA, city or town executives where a source is located, and persons who

request to be on a mailing list will be sent a copy of the notice.

The State of Rhode Island has also requested approval of its

Emissions Caps program under section 112(l) of the Act for the purpose

of creating federally enforceable limitations on the potential to emit

of HAPs. Approval under section 112(l) is necessary

[[Page 11733]]

because the SIP approval discussed above only extends to criteria

pollutants for which EPA has established national ambient air quality

standards under section 109 of the Act. Federally enforceable limits on

criteria pollutants or their precursors (i.e., VOCs or PM-10) may have

the incidental effect of limiting certain HAPs listed pursuant to

section 112(b).1 As a legal matter, no additional program approval

by the EPA is required beyond SIP approval under section 110 in order

for these criteria pollutant limits to be recognized as federally

enforceable. However, section 112 of the Act provides the underlying

authority for controlling all HAP emissions, regardless of their

relationship to criteria pollutant controls.

\1\ The EPA issued guidance on January 25, 1995 addressing the

technical aspects of how these criteria pollutant limits may be

recognized for purposes of limiting a source's potential to emit of

HAP to below section 112 major source levels.

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The EPA has determined that the five approval criteria for

approving FESOP programs into the SIP, as specified in the June 28,

1989 Federal Register notice, are also appropriate for evaluating and

approving the programs under section 112(l). The June 28, 1989 notice

does not address HAPs because it was written prior to the 1990

amendments to section 112. The June 28, 1989 criteria are basic

principles which are not unique to criteria pollutants. Therefore, the

five criteria discussed above are applicable to FESOP approvals under

section 112(l) as well as under section 110.

In addition to meeting the criteria in the June 28, 1989 notice, a

FESOP program for HAPs must meet the statutory criteria for approval

under section 112(l)(5). Section 112(l) allows the EPA to approve a

program only if the program: (1) Contains adequate authority to assure

compliance with any section 112 standard or requirement; (2) provides

for adequate resources; (3) provides for an expeditious schedule for

assuring compliance with section 112 requirements; and (4) is otherwise

likely to satisfy the objectives of the Act.

The EPA plans to codify the approval criteria for programs limiting

potential to emit HAPs, in Subpart E of Part 63, the regulations

promulgated to implement section 112(l) of the Act. (See 58 FR 62262,

November 26, 1993.) The EPA currently anticipates that these regulatory

criteria, as they apply to FESOP programs, will mirror those set forth

in the June 28, 1989 notice. FESOP programs approved pursuant to

section 112(l) prior to the planned Subpart E revisions will be

approved as meeting the criteria in EPA's June, 1989 notice. Therefore,

further approval actions for those programs will not be necessary.

The EPA believes it has authority under section 112(l) to approve

programs to limit potential to emit HAPs directly under section 112(l)

prior to this revision to Subpart E. EPA is therefore approving Rhode

Island's Emissions Caps program now so that Rhode Island may begin to

issue federally enforceable synthetic minor permits as soon as

possible.

Regarding the statutory criteria of section 112(l)(5) referred to

above, the EPA believes Rhode Island's Emissions Caps program contains

adequate authority to assure compliance with section 112 requirements

since the third criterion of the June 28, 1989 notice is met, that is,

the program in APC 29.3.5 states that all requirements in the Emissions

Caps program must be at least as stringent as all other applicable

federally enforceable requirements. In connection with EPA's review of

Rhode Island's title V operating permit program, EPA has also conducted

an extensive analysis of Rhode Island's underlying authority to enforce

HAP limits. Please note that a source which receives an Emissions Caps

permit may still need a title V operating permit under APC 29 if EPA

promulgates a MACT standard which requires non-major sources to obtain

title V permits.

Regarding the requirement for adequate resources, the EPA believes

Rhode Island has demonstrated that it can provide for adequate

resources to support the Emissions Caps program through an annual

compliance/assurance fee and a permit fee. EPA believes this mechanism

will be sufficient to provide for adequate resources to implement this

program. For more information regarding the fees program, refer to the

Technical Support Document.

The EPA also believes that Rhode Island's Emissions Cap program

provides for an expeditious schedule which assures compliance with

section 112 requirements. This program will be used to allow a source

to establish a voluntary limit on potential to emit to avoid being

subject to a CAA requirement applicable on a particular date. Nothing

in Rhode Island's program would allow a source to avoid or delay

compliance with a CAA requirement if it fails to obtain an appropriate

federally enforceable limit by the relevant deadline. Finally, the EPA

believes it is consistent with the intent of section 112 and the Act

for States to provide a mechanism through which sources may avoid

classification as a major source by obtaining a federally enforceable

limit on potential to emit. EPA has long recognized federally-

enforceable emissions or operational limits as a means to stay below

major source thresholds under the Act. This approval merely applies the

same principles to another set of pollutants and regulatory

requirements under the Act.

The EPA's review of this SIP revision indicates the criteria for

approval as provided in the June 28, 1989 Federal Register notice (54

FR 27282) and in section 112(l)(5) of the Act have been satisfied.

During the development of this rule, EPA and Rhode Island have been

asked whether permits the State has issued pursuant to these

regulations prior to today's action approving this program into the SIP

are nevertheless federally enforceable. In the preamble to the

regulations that EPA promulgated on June 28, 1989 (54 FR 27274), which

set forth the five criteria outlined above for a federally enforceable

operating permit program, EPA indicated that it would ``consult with

States on methods by which existing operating permits could be made

federally enforceable under a subsequently approved State operating

permits program.'' 54 FR at 27284. The preamble went on to discuss

options for securing EPA approval of previously issued permits. As EPA

concluded in its approval of the Illinois FESOP program (57 FR at 59931

(Dec. 17, 1992)), these options were not intended to be a complete list

of alternatives. To avoid burdensome requirements to reprocess each

previously issued permit, EPA will use the same approach announced in

that Illinois approval for determining whether such permits are

federally enforceable and for ratifying their status as enforceable

under the approved SIP.

EPA today finds the existing Rhode Island regulations to be

consistent with federal requirements. If the State followed its own

procedures, each permit issued under this regulation was subject to

public notice and comment, with notice to EPA. Moreover, the regulation

requires each permit to be enforceable as a practical matter.

Therefore, EPA will consider all previously issued operating permits

which were processed in a manner consistent with the State regulations

federally enforceable with the promulgation of this rule, provided that

any permits the State wishes to make federally enforceable are

submitted to EPA and are accompanied by documentation that the

procedures approved today were followed in issuing the permit.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse

[[Page 11734]]

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

publication, EPA is proposing to approve the SIP revision should

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

May 21, 1996, unless adverse or critical comments are received by April

22, 1996.

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

the effective date by simultaneously 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 on May 21, 1996.

Final Action

EPA is approving APC 29.3 ``Emissions Caps'' effective in the State

of Rhode Island on May 18, 1995 under sections 110 and 112(l) of the

CAAA.

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 section 110, section 112(l), 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. 7410 (a)(2).

This action has been classified as a Table 3 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 document will inform the general public of

these tables.

The OMB has exempted this action from review under Executive Order

12866.

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 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 May 21, 1996. 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).)

Unfunded Mandates

Under Section 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 action promulgated today 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

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Note: Incorporation by reference of the State Implementation

Plan for the State of Rhode Island was approved by the Director of

the Federal Register on July 1, 1982.

Dated: January 30, 1996.

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. 7401-7671q.

Subpart OO--Rhode Island

2. Section 52.2070 is amended by adding paragraph (c)(45) to read

as follows:

Sec. 52.2070 Identification of plan.

* * * * *

(c) * * *

(45) Revisions to the State Implementation Plan submitted by the

Rhode Island Department of Environmental Management on May 15, 1995

(i) Incorporation by reference.

(A) Letter from the Rhode Island Department of Environmental

Protection dated May 15, 1995 submitting a revision to the Rhode Island

State Implementation Plan.

(B) Air Pollution Control Regulation 29.3 ``Emissions Caps'';

effective in the State of Rhode Island on May 18, 1995.

(ii) Additional materials.

(A) Non-regulatory portions of the submittal.

3. In Sec. 52.2081 Table 52.2081 is amended by adding new entry for

state citation APC 29.3 to read as follows:

Sec. 52.2081 EPA-Approved Rhode Island State regulations.

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52.2070 (45)

Date ---------------------------

State citation Title/subject adopted by Date approved by EPA Federal Register citation Comments/unapproved

State sections

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* * * * * * *

No. 29.3............ EMISSIONS...................... 4/28/95 March 22, 1996............. [Insert FR citation from This rule limits a

published date]. source's potential to

emit, therefore avoiding

RACT, title V operating

permits.

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[FR Doc. 96-6601 Filed 3-21-96; 8:45 am]

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