Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Reasonably Available Control Technology for Nitrogen Oxides

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5883-4]

Approval and Promulgation of Air Quality Implementation Plans;

Rhode Island; Reasonably Available Control Technology for Nitrogen

Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

submitted by the State of Rhode Island. This revision establishes and

requires Reasonably Available Control Technology (RACT) at stationary

sources of nitrogen oxides (NOX). The intended effect of

this action is to approve regulatory provisions and source specific

consent agreements which require major stationary sources of

NOX to reduce their emissions statewide in accordance with

requirements of the Clean Air Act.

DATES: This action is effective November 3, 1997, unless adverse or

critical comments are submitted and received by October 2, 1997. If the

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

Federal Register.

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

Office of Ecosystem Protection (mail code CAA), 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; as well as the

Division of Air and Hazardous Materials, Rhode Island Department of

Environmental Management, 291 Promenade Street, Providence, RI 02908-

5767.

FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, Environmental

Engineer, Air Quality Planning Unit (CAQ), U.S. EPA, Region I, JFK

Federal Building, Boston, MA 02203-2211; (617) 565-2773;

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background

The Clean Air Act (CAA) requires that States develop Reasonably

Available Control Technology (RACT) regulations for all major

stationary sources of nitrogen oxides (NOX) in areas which

have been classified as ``moderate,'' ``serious,'' ``severe,'' and

``extreme'' ozone nonattainment areas, and in all areas of the Ozone

Transport Region (OTR). EPA has defined RACT as the lowest emission

limitation that a particular source is capable of meeting by the

application of control technology that is reasonably available

considering technological and economic feasibility (44 FR 53762;

September 17, 1979). This requirement is established by sections

182(b)(2), 182(f), and 184(b) of the CAA.

The CAA NOX requirements are further described by EPA in

a notice entitled ``State Implementation Plans; Nitrogen Oxides

Supplement to the General Preamble; Clean Air Act Amendments of 1990

Implementation of Title I; Proposed Rule,'' published November 25, 1992

(57 FR 55620). The November 25, 1992 document (i.e., the NOX

Supplement) should be referred to for more detailed information on

NOX requirements. Additional guidance memoranda which have

been released by EPA, such as those included in the ``NOX

Policy Document for the Clean Air Act of 1990,'' (EPA-452/R-96-005,

March 1996), should also be referred to for more information on

NOX requirements.

CAA section 182(b)(2) requires States to require implementation of

RACT with respect to all major sources of volatile organic compounds

(VOC) in moderate ozone nonattainment areas. This RACT requirement also

applies to all major sources in ozone nonattainment areas with higher

than moderate nonattainment classifications (i.e., serious, severe, and

extreme nonattainment areas). See CAA sections 182 (c), (d), and (e).

Furthermore, CAA section 182(f) states that, ``[t]he plan provisions

required under this subpart for major stationary sources of volatile

organic compounds shall also apply to major stationary sources (as

defined in section 302 of this title and subsections (c), (d), and (e)

of the section) of oxides of nitrogen.'' These sections of the CAA,

taken together, require the State of Rhode Island, a serious

nonattainment area, to submit a NOX RACT regulation which

covers major sources of NOX statewide.

Section 302 of the CAA generally defines ``major stationary

source'' as a facility or source of air pollution which has the

potential to emit 100 tons per year or more of air pollution. This

definition applies unless another provision of the CAA explicitly

defines major stationary source differently. Therefore, for

NOX, a major source is one with the potential to emit 100

tons per year or more in marginal and

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moderate areas, as well as in attainment areas in the OTR. However, for

serious nonattainment areas, a major source is defined by section

182(c) as a source that has the potential to emit 50 tons per year or

more. The entire State of Rhode Island has been classified as a serious

ozone nonattainment area. Therefore, in Rhode Island, a major

stationary source of NOX is a facility which has a potential

to emit 50 tons per year or more of NOX.

II. State Submittal

The Rhode Island Department of Environmental Management (Rhode

Island or RI DEM) was notified in a January 23, 1991 letter from Region

I that ``[t]he CAAAs mandate that within 2 years of enactment, states

submit a SIP revision which requires the implementation of RACT and NSR

requirements with respect to oxides of nitrogen (NOX) for

all major stationary sources* * *''

On October 29, 1992, RI DEM submitted a preliminary draft version

of Regulation No. 27 to EPA. On November 16, 1992, RI DEM submitted the

proposed regulation. A public hearing was held in Providence, Rhode

Island on December 16, 1992. Region I provided written comments on the

proposed regulation on December 18, 1992. The regulations were filed

with the Rhode Island Secretary of State on January 12, 1994, and

became effective on February 1, 1994. Rhode Island submitted the

adopted Regulation No. 27 as a formal SIP submittal to EPA on May 16,

1994. After reviewing the regulation for completeness, EPA sent Rhode

Island a letter on June 14, 1994, stating that Regulation No. 27 had

been found to be administratively and technically complete.

Subsequently, on August 30, 1995, RI DEM proposed an amended

Regulation No. 27. A public hearing was held on October 5, 1995, and

EPA submitted written comments to the public record on that date. On

September 17, 1996, RI DEM submitted an amended Regulation No. 27.

After reviewing the amended regulation, EPA sent a letter to RI DEM on

November 6, 1996, deeming the new submittal administratively and

technically complete.

Additionally, a public hearing had been held on October 11, 1995

for the proposed NOX RACT consent agreements for Algonquin

Gas Transmission Company, Bradford Dyeing Association, Inc., Hoechst

Celanese Corporation, Rhode Island Hospital, and the University of

Rhode Island. EPA sent written comments on these proposed orders on

October 4, 1995. Similarly, on February 1, 1996, a public hearing was

held on the proposed NOX RACT consent agreements for Naval

Education Training Center and Osram Sylvania Incorporated. EPA sent

written comments on those proposed orders on February 2, 1996.

On September 17, 1996, RI DEM submitted miscellaneous

NOX RACT determinations for Rhode Island Hospital and Osram

Sylvania Incorporated, as well as alternative NOX RACT

determinations for Algonquin Gas Transmission Company, Bradford Dyeing

Association, Inc., Hoechst Celanese Corporation, University of Rhode

Island, and the Naval Education and Training Center. On November 6,

1996, EPA sent a letter to RI DEM deeming the submittals technically

and administratively complete.

III. Description of Submittal

The following is a description of the changes to the Rhode Island

SIP being approved in this action. For a more detailed discussion of

Rhode Island's submittals and EPA's proposed action, the reader should

refer to the Technical Support Document developed as part of this

action. Copies of the Technical Support Document are found at the

previously mentioned addresses.

A. Regulation No. 27

Rhode Island's Regulation No. 27, ``Control of Nitrogen Oxides

Emissions,'' is divided into six sections. Section 27.1 defines terms

used in the rule. Sections 27.2 covers applicability and exemptions.

Applicability is first determined facility-wide and then on a unit-by-

unit basis, depending on equipment type. In other words, an individual

piece of equipment is subject to the rule if it exceeds a minimum

capacity rating and is located at a major source. Rhode Island allows

an exemption for sources where actual emissions have not exceeded the

major source threshold since 1990. The regulation also exempts

emergency generators which are operated less than 500 hours per year

from all of its requirements except record keeping.

Section 27.3. describes the requirements of RACT plans. This

section describes the information that must be included in such RACT

proposals, including specific additional plan requirements for sources

conducting seasonal fuel-switching, as well as for miscellaneous source

types, i.e., categories not otherwise covered by emission limits in the

regulation. This section also requires RI DEM to review the RACT

proposals and to issue a final approval or disapproval of the proposed

RACT plan. Additionally, this section describes the process by which

RACT plans for miscellaneous source categories will be processed as

case-specific SIP revisions.

Section 27.4 establishes emission limits which apply as of May 31,

1995 for utility boilers; industrial, commercial, and institutional

boilers (ICI boilers); and internal combustion (IC) engines. This

section also requires that RACT be defined by May 31, 1995 for all

other sources with the potential to emit 100 tons or more of

NOX per year but which do not have an emission limitation

specifically defined in the regulation, i.e., miscellaneous source

categories. However, section 27.4 allows an exemption from these

emission limits if the equipment has a permit setting BACT or LAER

since November 15, 1992. Similarly, if a new source permit has been

issued for combustion turbine facilities since January 6, 1989, IC

engines since September 28, 1989, or fluidized bed boilers, since March

11, 1991, the emission limits do not apply.

Furthermore, section 27.4 allows an exemption from the emission

limits for utility boilers which committed by October 3, 1994, in an

enforceable document, to either shut down by May 31, 1995 or be

replaced by December 31, 1996 as part of a repowering project.

Additionally, such repowering units must (1) have a permit setting Best

Available Control Technology (BACT) or Lowest Achievable Emission Rate

(LAER), (2) comply with the alternative RACT requirements, and (3) have

the enforceable document and RACT determination submitted to EPA as

case-specific SIP-revisions. Section 27.4 also describes the

requirements for sources seeking alternative RACT determinations,

including the requirement that such determinations be submitted to EPA

as case-specific SIP revisions; additionally, alternative RACT

determinations be reviewed every three years by RI DEM until the source

complies with the otherwise applicable RACT requirements. Finally,

section 27.4 describes the requirements for fuel-switching facilities,

including a requirement that such RACT plans be submitted to EPA as

case-specific SIP revisions.

Section 27.5 describes compliance testing and emission monitoring

requirements. These provisions require that compliance be determined by

continuous emission monitoring systems (CEMS), emissions testing, and/

or by record keeping, depending on the operating capacity and type of

equipment. The rule requires that utility boilers and fuel-switching

equipment must, and ICI boilers may, install CEMS. Utility boilers are

required to

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demonstrate compliance based on a 24-hour average concentration. ICI

boilers and IC engines are required to demonstrate compliance through

three 1-hour stack tests. Initial compliance demonstrations were

required by November 30, 1995. Sources without CEMS are required to

conduct emission tests annually.

Section 27.6 describes the record keeping and reporting

requirements of the regulation. These provisions require sources with

CEMS to submit quarterly excess emissions reports. Also, this section

requires that fuel usage by each combustion unit subject to RACT be

recorded monthly. Oil burning sources must obtain certifications from

fuel suppliers of, or must themselves determine, the nitrogen content

of the fuel oil. Section 27.6 requires that all fuel supplier

certifications or fuel oil analyses be maintained at the source and

available for inspection by RI DEM and EPA. In addition, ICI boilers

with operating capacities between 1 and 50 MBtu/hr to maintain records

verifying that tune-ups have been performed in accordance with Appendix

A of the regulation.

Additionally, section 27.6 requires sources subject to emission

caps to keep records concerning monthly fuel usage, monthly

NOX emissions, etc. This section also requires owners of

emergency standby engines to provide capacity and fuel information to

RI DEM, as well as to install, maintain, and keep records of recorded

hours on an elapsed time meter. Such sources also are required to

inspect and adjust the timing of engines at least once every three

years. Finally, section 27.6 requires that all records be maintained at

the source, and be available to EPA and the State, for a minimum of

five years.

A public hearing regarding Regulation No. 27 was held in

Providence, Rhode Island on December 16, 1992. Region I provided

written comments on the proposed regulation on December 18, 1992. The

regulations were filed with the Rhode Island Secretary of State on

January 12, 1994, and became effective on February 1, 1994. Rhode

Island submitted the adopted Regulation No. 27 as a formal SIP

submittal to EPA on May 16, 1994. After reviewing the regulation for

completeness, EPA sent Rhode Island a letter on June 14, 1994, stating

that Regulation No. 27 had been found to be administratively and

technically complete.

Subsequently, on August 30, 1995, RI DEM proposed an amended

Regulation No. 27 which changed several provisions of the original

Regulation No. 27 submitted on May 16, 1994. A public hearing was held

on the draft amended Regulation No. 27 on October 5, 1995, and EPA

submitted written comments to the public record on that date. The

amended regulation was filed with the Rhode Island Secretary of State

on December 27, 1995, and became effective on January 16, 1996. On

September 17, 1996, RI DEM submitted the amended Regulation No. 27 to

EPA. After reviewing the amended regulation, EPA sent a letter to RI

DEM on November 6, 1996, deeming the new submittal administratively and

technically complete.

B. Miscellaneous NOX RACT--Rhode Island Hospital

Rhode Island Hospital operates a medical waste incinerator at its

Providence facility which is subject to the miscellaneous

NOX RACT provisions of section 27.4.4. On September 8, 1995,

a public notice was published for the proposed miscellaneous

NOX RACT consent agreement for Rhode Island Hospital in

Providence, Rhode Island. EPA submitted written comments to the public

record on October 4, 1995 and a public hearing was held on October 11,

1995. Rhode Island issued the consent agreement, file no. 95-14-AP, to

Rhode Island Hospital on November 27, 1995, which became effective on

that date. Rhode Island submitted the final consent agreement as a SIP

submittal to EPA on September 17, 1996. EPA determined the submittal to

be administratively and technically complete on November 6, 1996.

C. Miscellaneous NOX RACT--Osram Sylvania Inc.

Osram Sylvania Incorporated (Osram Sylvania) operates two glass

melting tanks at its Central Falls facility which are subject to the

miscellaneous NOX RACT provisions of section 27.4.4. On

December 20, 1995, a public notice was published for the proposed

miscellaneous NOX RACT consent agreement for Osram Sylvania

in Central Falls, Rhode Island. A public hearing was held on February

1, 1996, and EPA submitted written comments to the public record on

February 2, 1996. On September 4, 1996, RI DEM issued a consent

agreement to Osram Sylvania, file no. 96-06-AP, which became effective

on that date. The consent agreement also references and includes the

requirements of air pollution permit approval no. 1350, issued by RI

DEM to Osram Sylvania on May 14, 1996 as a BACT determination for one

of the glass melting tanks. On September 17, 1996, Rhode Island

submitted an alternative NOX RACT determination for Osram

Sylvania, including the consent agreement and the permit approval. On

November 6, 1996, EPA deemed the submittal to be administratively and

technically complete.

D. Alternative NOX RACT--Algonquin Gas Transmission Company

Algonquin Gas Transmission Company (Algonquin Gas) operates three

reciprocating internal combustion engines (Units 1, 2, and 3) at its

Burrillville Compressor Station. The NOX emission limitation

in section 27.4.3 were shown to be technically or economically

infeasible for these engines. Therefore, on September 8, 1995, a public

notice was published for a proposed alternative NOX RACT

consent agreement for Algonquin Gas in Burrillville, Rhode Island. EPA

submitted written comments to the public record on October 11, 1995,

and a public hearing was held on October 12, 1995. On December 5, 1995,

RI DEM issued a consent agreement to Algonquin Gas, file no. 95-52-AP,

which became effective on that date. On September 17, 1996, Rhode

Island submitted an alternative RACT determination for Algonquin Gas to

EPA. On November 6, 1996, EPA deemed the submittal to be

administratively and technically complete.

E. Alternative NOX RACT--Bradford Dyeing Association, Inc.

Bradford Dyeing Association, Inc. (BDA) operates a back-up boiler

(Boiler #1) at its Westerly facility. The ICI boiler limits imposed by

section 27.4.2 were shown to be technically or economically infeasible

for this boiler. Therefore, on September 8, 1995, a public notice was

published for a proposed alternative NOX RACT consent

agreement for BDA in Westerly, Rhode Island. EPA submitted written

comments to the public record on October 11, 1995, and a public hearing

was held on October 12, 1995. On November 17, 1995, RI DEM issued a

consent agreement to BDA, file no. 95-28-AP, which became effective on

that date. On September 17, 1996, Rhode Island submitted an alternative

RACT determination for BDA to EPA. On November 6, 1996, EPA deemed the

submittal to be administratively and technically complete.

F. Alternative NOX RACT--Hoechst Celanese Corporation

Hoechst Celanese Corporation (Hoechst) operates a back-up boiler

(Upper Boiler) at its Coventry facility. The ICI boiler limits of

section 27.4.2 were demonstrated to be technically or

[[Page 46205]]

economically infeasible for this boiler. Therefore, on September 8,

1995, a public notice was published for a proposed alternative

NOX RACT consent agreement for Hoechst in Coventry, Rhode

Island. EPA submitted written comments to the public record on October

11, 1995, and a public hearing was held on October 12, 1995. On

November 20, 1995, RI DEM issued a consent agreement to Hoechst, file

no. 95-62-AP, which became effective on that date. On September 17,

1996, Rhode Island submitted an alternative RACT determination to EPA

for Hoechst. On November 6, 1996, EPA deemed the submittal to be

administratively and technically complete.

G. Alternative NOX RACT--University of Rhode Island

The University of Rhode Island (URI) operates a boiler (Boiler #3)

at the Kingston campus. The ICI boiler emissions limits in section

27.4.2 were shown to be technically or economically infeasible for this

boiler. Therefore, on September 8, 1995, a public notice was published

for a proposed alternative NOX RACT consent agreement for

URI in Kingston, Rhode Island. EPA submitted written comments to the

public record on October 11, 1995, and a public hearing was held on

October 12, 1995. On March 12, 1996, RI DEM issued a consent agreement

to URI, file no. 95-50-AP, which became effective on that date. On

September 17, 1996, Rhode Island submitted an alternative RACT

determination for URI to EPA. On November 6, 1996, EPA deemed the

submittal to be administratively and technically complete.

H. Alternative NOX RACT--Naval Education and Training Center

The Naval Education and Training Center (NETC) operates four

boilers (boilers #1, #2, #3, and #4) in the Coasters Harbor Island

Building #86 at its Newport facility. NETC demonstrated that the ICI

boiler emission limits of section 27.4.2 are not technically or

economically feasible for these boilers. Therefore, on December 20,

1995, a public notice was published for a proposed alternative

NOX RACT consent agreement for NETC in Newport, Rhode

Island. A public hearing was held on February 1, 1996 and on February

2, 1996, EPA submitted written comments to the public record. On March

4, 1996, RI DEM issued a consent agreement to NETC, file no. 96-07-AP,

which became effective on that date. On September 17, 1996, Rhode

Island submitted an alternative RACT determination for NETC to EPA. On

November 6, 1996, EPA deemed the submittal to be administratively and

technically complete.

IV. Issues

There is one issue associated with this rulemaking. The CAA

requires that Rhode Island define and require RACT at all major sources

of NOX. Regulation No. 27 contains specific emission limits

and technology standards for a number of NOX emitting

equipment categories. Additionally, section 27.4.4 of the regulation

requires any stationary source, equipment, or pollution emitting

activity that is not covered by one of the explicit emission limits or

standards to have RACT defined by the Director of RI DEM by May 31,

1995. These miscellaneous NOX RACT determinations must then

be approved by EPA as revisions to the SIP.

There are three facilities to which such miscellaneous provisions

apply: Osram Sylvania in Coventry; Rhode Island Hospital in Providence;

and, New England Treatment Company (NETCO) in Woonsocket. On September

17, 1996, RI DEM submitted the final NOX RACT consent

agreements for Osram Sylvania and Rhode Island Hospital. To date,

however, Rhode Island has not submitted a final RACT consent agreement

for the sewage sludge incinerator at NETCO.

Although EPA has not received the final miscellaneous

NOX RACT determination for NETCO, Regulation No. 27 is fully

approvable at this time for several reasons. First, on November 7,

1996, EPA issued a policy memorandum entitled ``Approval Options for

Generic RACT Rules Submitted to Meet the non-CTG VOC RACT Requirements

and Certain NOX RACT Requirements,'' 2 which

applies to Regulation No. 27. Generic RACT provisions are those

portions of a regulation where the emission limit or technology

standard is not specified in the rule, rather, the determination of a

limit is to be made on a case-by-case basis. Under the Act, these case-

specific RACT determinations must be submitted to EPA as revisions to a

State's SIP. The generic RACT policy allows full approval of a State's

NOX RACT regulation which contains generic provisions if the

NOX emissions from the outstanding RACT determinations are

not from electric utility sources and an analysis has been completed

that demonstrates that the remaining case-specific NOX RACT

determinations involve a de minimis level of NOX emissions.

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\2\ November 7, 1996 memorandum from Sally Shaver, Director, Air

Quality Strategies and Standards Division, Office of Air Quality

Planning and Standards, to Air Program Directors, EPA Regional

Offices.

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In the case of Rhode Island's Regulation No. 27, analysis has shown

that the emissions remaining to be covered by the case-specific RACT

determinations, i.e., from the NETCO sludge incinerator, constitute

less than 4% of Rhode Island's baseyear non-utility NOX

emissions. Under the generic RACT policy, such emissions can be

considered to be de minimis. Additionally, an analysis of the impact of

Regulation No. 27 shows that the adopted rule and case-specific RACT

determinations achieve an areawide NOX reduction from RACT

subject sources statewide of almost 60% from a 1990 baseline. EPA's

March 16, 1994 policy memorandum entitled ``Cost-Effective Nitrogen

Oxides Reasonably Available Control Technology (RACT)'' contemplates

that NOX RACT will achieve 30% to 50% reduction in actual

emissions from a 1990 baseline. Given these analyses, Regulation No.

27, including the generic provisions, is fully approvable.

It is important to note that approval of this regulation under the

generic RACT policy does not exempt any remaining miscellaneous sources

from RACT; rather it is a de minimis deferral of the approval of the

remaining case-by-case RACT determinations. This means that approval of

Regulation No. 27 will not relieve the remaining sources of the

obligation to develop, submit and implement RACT level controls.

Similarly, approval will not relieve Rhode Island of the obligation to

ensure that all sources within the State comply with the NOX

RACT requirements of the Act by adopting and implementing emission

limitations or technology standards. In fact, approval of this

regulation will serve to reinforce the requirement for the State to

submit any remaining case-specific RACT determinations. Because

Regulation No. 27 requires that miscellaneous NOX RACT

determinations be submitted to EPA for approval as SIP revisions,

approval of the regulation will make the requirement to submit

remaining NOX RACT orders enforceable by EPA, as well as by

citizens under Section 304 of the Act.

V. Final Action

Review of the NOX RACT SIP submittals, including

Regulation No. 27, the miscellaneous NOX RACT consent

agreements, and the alternative NOX RACT consent agreements,

indicates that Rhode Island has sufficiently defined the NOX

RACT requirements for the State. Therefore, EPA is fully approving

Regulation No. 27, as

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amended on December 27, 1995, the miscellaneous NOX RACT

determinations for Rhode Island Hospital and Osram Sylvania

Incorporated, as well as the alternative NOX RACT

determinations for Algonquin Gas Transmission Company, Bradford Dyeing

Association, Inc., Hoechst Celanese Corporation, the University of

Rhode Island, and the Naval Education and Training Center, into the

Rhode Island SIP.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse 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 November 3, 1997 unless adverse or critical comments are

received by October 2, 1997.

If the 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 November 3, 1997.

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.

VI. 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 sections 110 and 301, 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, 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 CAA 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 Sections 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 approval action promulgated 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.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 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 the rule in today's

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

U.S.C. 804(2).

E. Petitions for Judicial Review

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 November 3, 1997. 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).) EPA encourages

interested parties to comment in response to the proposed rule rather

than petition for judicial review, unless the objection arises after

the comment period allowed for in the proposal.

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.

Dated: August 19, 1997.

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 paragraphs (c)(48) and

(c)(49) to read as follows:

Sec. 52.2070 Identification of plan.

* * * * * *

[[Page 46207]]

(c) * * *

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

Rhode Island Department of Environmental Management on September 17,

1996, which define and impose reasonably available control technology

(RACT) to control nitrogen oxides emissions at major stationary sources

in Rhode Island.

(i) Incorporation by reference.

(A) Letter from the Rhode Island Department of Environmental

Management, dated September 17, 1996, submitting revisions to the Rhode

Island State Implementation Plan.

(B) Regulation number 27, ``Control of Nitrogen Oxide Emissions,''

as adopted on December 27, 1995, effective January 16, 1996.

(C) An administrative consent agreement between Rhode Island

Department of Environmental Management and Rhode Island Hospital, file

no. 95-14-AP, effective on November 27, 1995.

(D) An administrative consent agreement between Rhode Island

Department of Environmental Management and Osram Sylvania Incorporated,

file no. 96-06-AP, effective on September 4, 1996.

(E) An air pollution permit approval, no. 1350, for Osram Sylvania

Incorporated issued by the Rhode Island Department of Environmental

Management on May 14, 1996 and effective on that date.

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

Rhode Island Department of Environmental Management on September 17,

1996, which define and impose alternative reasonably available control

technology (RACT) requirements to control nitrogen oxides emissions at

certain major stationary sources in Rhode Island.

(i) Incorporation by reference.

(A) Letter from the Rhode Island Department of Environmental

Management dated September 17, 1996, submitting revisions to the Rhode

Island State Implementation Plan.

(B) An administrative consent agreement between Rhode Island

Department of Environmental Management and Algonquin Gas Transmission

Company, file no. 95-52-AP, effective on December 5, 1995.

(C) An administrative consent agreement between Rhode Island

Department of Environmental Management and Bradford Dyeing Association,

Inc., file no. 95-28-AP, effective on November 17, 1995.

(D) An administrative consent agreement between Rhode Island

Department of Environmental Management and Hoechst Celanese

Corporation, file no. 95-62-AP, effective on November 20, 1995.

(E) An administrative consent agreement between Rhode Island

Department of Environmental Management and University of Rhode Island,

file no. 95-50-AP, effective on March 12, 1996.

(F) An administrative consent agreement between Rhode Island

Department of Environmental Management and the Naval Education and

Training Center in Newport, file no. 96-07-AP, effective on March 4,

1996.

3. In Sec. 52.2081, Table 52.2081 is amended by adding new state

citations by date for ``Regulation No. 27,'' to read as follows:

* * * * *

Sec. 52.2081 EPA-approved EPA Rhode Island state regulations.

* * * * *

Table 52.2081.--EPA-Approved Rules and Regulations

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

Date Comments/

State citation Title/subject adopted by Date approved by FR citation 52.2070 unapproved

State EPA sections

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

* * * * * * *

No. 27........ Control of 12/27/95 Sept. 2, 1997.... [Insert FR (c)(48) Adds NOX RACT

Nitrogen Oxide citation from regulations.

Emissions. published date].

................ 11/27/95 Sept. 2, 1997.... [Insert FR (c)(48) NOX RACT for

citation from Rhode Island

published date]. Hospital under

27.4.4.

................ 9/4/96 Sept. 2, 1997.... [Insert FR (c)(48) NOX RACT for

citation from Osram Sylvania

published date]. Incorporated

under 27.4.4.

................ 12/5/95 Sept. 2, 1997.... [Insert FR (c)(49) Alternative NOX

citation from RACT for

published date]. Algonquin Gas

Transmission

Company under

27.4.8.

................ 11/17/95 Sept. 2, 1997.... [Insert FR (c)(49) Alternative NOX

citation from RACT for

published date]. Bradford

Dyeing

Association,

Inc. under

27.4.8.

................ 11/20/95 Sept. 2, 1997.... [Insert FR (c)(49) Alternative NOX

citation from RACT for

published date]. Hoechst

Celanese

Corporation

under 27.4.8.

................ 3/12/96 Sept. 2, 1997.... [Insert FR (c)(49) Alternative NOX

citation from RACT for

published date]. University of

Rhode Island

under 27.4.8.

................ 3/4/96 Sept. 2, 1997.... [Insert FR (c)(49) Alternative NOX

citation from RACT for Naval

published date]. Education and

Training

Center under

27.4.8.

* * * * * * *

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

[FR Doc. 97-23228 Filed 8-29-97; 8:45 am]

BILLING CODE 6560-50-P