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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX NO. DC032-2005; FRL-5833-1]

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia; New Source Review Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

revision submitted by the District of Columbia. This revision

establishes and requires the major new source review (NSR) permit

program. The intended

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effect of this action is to propose approval of the NSR program which

requires permitting for the construction of major new or major modified

sources pursuant to the requirements of the Clean Air Act (CAA). This

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

DATES: Comments must be received on or before July 2, 1997.

ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permits

Program Section, Mailcode 3AT23, 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; the Air and

Radiation Docket and Information Center, U.S. Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460; District of Columbia

Department of Consumer and Regulatory Affairs, 2100 Martin Luther King

Ave, S.E., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 566-2068, or by e-

mail at [email protected]. (Although additional information

may be requested via e-mail, comments must be submitted in writing to

the above EPA address.)

SUPPLEMENTARY INFORMATION: On May 2, 1997, the District of Columbia,

Department of Consumer and Regulatory Affairs, submitted a revision to

its State Implementation Plan (SIP) for major new source review (NSR).

This revision requires major new and modified sources of volatile

organic compounds (VOCs) and nitrogen oxides (NOX) to meet

certain new source requirements if they are being located in a

designated nonattainment area, if they are expected to emit these

pollutants in quantities that would significantly impact a

nonattainment area, or if they are being located an the ozone transport

region. These requirements include installing Lowest Achievable

Emission Rate (LAER) technology and obtaining emission offsets.

Background

The SIP revision consists of regulations applicable to new source

permitting in District of Columbia Municipal Regulations (DCMR) Title

20, sections 199, 200, 201, 202, 204, 206.1 (pertaining to public

notice), and 299 (reference to applicability of definitions in section

199).

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

DC ozone nonattainment area, which includes portions of Maryland and

Virginia. Washington, DC is a nonattainment area classified as serious

for ozone, and as such, is required under the Clean Air Act to

implement certain requirements including those pertaining to the

permitting of major new and major modified sources. Title I, Part D of

the Clean Air Act (including sections 171, 172, 173, 182, 187, and 189)

requires that States incorporate into the applicable SIP an acceptable

permitting program for the preconstruction review of new or modified

major stationary sources in nonattainment areas. In addition, the 1990

Amendments create certain new requirements for States. The amended Act

required that areas such as the District submit adopted regulations

applying to the permitting of those major sources no later than

November 15, 1992. In addition, section 184 of the amended Act requires

that areas located in the ozone transport region (OTR), of which the

District is a part, submit a NSR 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 (TPY) of VOC or NOX emissions.

Therefore, although section 184 requires that areas in the 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.

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

submit the required NSR regulations, which 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 the sanctions clock for failure to

submit were stopped. Due to multiple deficiencies in the submitted

regulations, EPA disapproved the SIP submittal in a direct final

rulemaking on March 24, 1995 (Volume 60 FR 15483). This action once

again started a sanctions clock. On November 23, 1996, the 2:1 emission

offset sanction, which is the first of two mandatory sanctions, was

imposed pursuant to Section 179 of the Act. The second mandatory

sanction clock, the withholding of federal funds for new highway

projects, will expire on May 24, 1997. An interim rulemaking to stay

both phases of sanctions, 2:1 emission offsets and restriction of

highway funds, is being published in the final rules section of this

Federal Register concurrently with this proposed rule.

Summary of SIP Revision

The District of Columbia submittal includes regulations for the

construction permitting program for major new and major modified

sources required under section 182 of the Act. Although sections 200,

201, 202, and 204 of the District of Columbia Municipal Regulations

(DCMR) apply to both major and minor sources and to sources wishing to

obtain construction or operating permits, it is the intent of this SIP

submittal to meet only the requirement to submit a major new source

permitting program under section 182 of the CAA. Therefore, only those

requirements in sections 200, 201, 202, and 204 applicable to major new

or major modified construction permitting are being approved into the

SIP at this time by this rulemaking action. The District of Columbia's

current SIP regulation for minor sources remain in effect. Section

206.1 contains public notice and opportunity requirements for NSR

permitting. 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

programs 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.''

EPA Analysis

Section 182 of the Act requires all States to submit regulations at

least as stringent as the nonattainment NSR provisions found in

sections 172 and 173 of the Act and the implementing regulations found

in 40 CFR part 51. EPA's review of this material indicates that the

revision corrects the deficiencies discussed in the EPA disapproval,

(60 FR 15483, March 24, 1995), and meets the criteria for a NSR

program.

The two most significant deficiencies cited in the disapproval were

lack of public comment requirements and the existence of a temporary

permit provision which might circumvent NSR permitting. The regulations

were

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amended to correct these deficiencies (District Register, May 9, 1997).

Public review and comment procedures were added to the DCMR (Title 20,

section 206.1 and 206.2). The temporary operating permit provision

(DCMR, Title 20, 200.3) was modified to require that operation of the

source is in accordance with the requirements of the Chapter; this

meets the requirements of the Act.

The 1995 disapproval also cites the requirement to update all state

regulations to reflect changes in the Clean Air Act by the 1990

amendments in sections 172 and 173 and other relevant sections.

Amendments to the DCMR section 204 required for the 1990 amendments

provisions have been included in this SIP revision. Section 204 of the

DCMR has also been amended to correct the remaining issues mentioned in

EPA's March 25, 1995 disapproval. Details of the provisions and

corrections are found in the Technical Support Document (TSD) for this

rulemaking. The TSD is available from the EPA Regional Office listed in

the ADDRESSES section of this notice.

EPA is proposing to approve the District SIP revision for NSR,

which was submitted on May 2, 1997. EPA is soliciting public comments

on the issues discussed in this document or on other relevant matters.

These comments will be considered before taking final 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 notice.

Proposed Action

EPA is proposing to approve the NSR program for new major sources

and major modifications in the District of Columbia. 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.

Administrative Requirements

A. Executive Order 12866

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.

B. Regulatory Flexibility Act

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 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, the

Administrator certifies 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 flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

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

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. 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

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 approval action proposed 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

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

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

The Administrator's decision to approve or disapprove the

District's NSR SIP revision will be based on whether it meets the

requirements of section 110(a)(2)(A)-(K) and part D of the Clean Air

Act, as amended, and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

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

Dated: May 21, 1997.

William T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 97-14303 Filed 5-30-97; 8:45 am]

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