Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Amendments to Air Pollution Control Regulation Number 9

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RI-39-6989a; A-1-FRL-6346-5]

Approval and Promulgation of Air Quality Implementation Plans;

Rhode Island; Amendments to Air Pollution Control Regulation Number 9

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 makes amendments

to 3 portions of Rhode Island's Air Pollution Control Regulation No. 9.

The intended effect of this action is to modify the definition of a

point source for purposes of new source review pre-construction

permitting, to eliminate the requirement for monitoring of total

suspended particulates (TSP) and insert requirements for addressing

particles with a mean aerodynamic diameter of 10 microns or less

(PM10), and to clarify the definition of Best Available Control

Technology (BACT). This action is being taken in accordance with the

Clean Air Act.

DATES: This direct final rule is effective on August 2, 1999, without

further notice, unless EPA receives relevant adverse comments by July

2, 1999. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

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

Office of Ecosystem Protection, U.S. Environmental Protection Agency,

Region I, One Congress Street, Suite 1100 (CAA), Boston, MA 02114-2023.

Copies of the documents relevant to this action are available for

public inspection during normal business hours, by appointment at the

Office 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 the

Division of Air and Hazardous Materials, Department of Environmental

Management, 291 Promenade Street, Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT: Ian D. Cohen, (617) 918-1655.

SUPPLEMENTARY INFORMATION: On August 9, 1996, the State of Rhode Island

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

SIP revision consists of amendments to Rhode Island's Air Pollution

Control Regulation No. 9, which governs pre-construction new source

review (NSR) permitting for new and modified sources of air pollution.

These changes will revise the State Implementation plan to reflect

revisions in EPA rules and policy.

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I. Background

The proposed SIP Revision will make changes to 3 portions of Rhode

Island's Rule: it will remove the ``dual source'' definition for

stationary sources, and will replace it with the ``plantwide''

definition; it will make PM10 the standard for particulate matter; and

it will include all Federal and State rules in the definition of BACT.

A. Federal Regulatory Framework

Dual Source Definition

On August 7, 1980 (45 FR 52676), EPA promulgated a rule which

defined a ``source'' as being a ``building, structure, facility, or

installation.'' This has become known as the ``dual source''

definition. Rhode Island has patterned its current definition of a

source after this definition. On October 14, 1981 (46 FR 50766), EPA

revised its NSR regulations to allow adoption of a ``plantwide''

definition. This allows the entire installation to be considered a

single ``source'' under the NSR rules.

Particulates

On July 1, 1987, (52 FR 24634) EPA promulgated revised National

Ambient Air Quality Standards (NAAQS) for particulate matter. This

changed the standard for particulates from TSP to particulates with a

mean aerodynamic diameter of 10 microns or less, PM10. On June 3, 1993,

EPA promulgated a further revision (59 FR 31636) which replaced TSP

with PM10 in the Prevention of Significant Deterioration (PSD) program,

and the NSR program for attainment area pollutants. The effect of these

rules was to eliminate the need to measure TSP as a pollutant. With

these amendments, Rhode Island removes all remaining references to TSP,

and specifies PM10 as the standard for particulate matter.

BACT

Best Available Control Technology (BACT) is defined as an emissions

limitation based on the maximum degree of reduction for each air

pollutant which would be emitted from a proposed new stationary source

or modification to an existing stationary source. BACT is decided on a

case-by-case basis. The federal definition of BACT requires that BACT

limits be no less stringent than any emission standard promulgated

under sections 111 and 112 of the Act. Rhode Island will increase the

number of regulations which will be considered to determine the minimum

BACT requirement. This change will make BACT more stringent.

Rhode Island's Revision

Rhode Island's Revision makes several changes to Air Pollution

Control Regulation Number 9, Air Pollution Control Permits. Revisions

to sections 9.1.7, 9.1.18, and 9.5.1 delete the word ``installation''

from the definition of ``stationary source.'' Revisions to sections

9.1.23, 9.5.1, and 9.5.2 delete all reference to TSP and make PM10

emissions the criterion used to evaluate net emissions increases for

particulate matter. A revision to section 9.1.6 amends the definition

of BACT. A public hearing was held on July 17, 1996. There were no

adverse comments.

Dual Source Definition

Rhode Island's SIP revision will allow all pollutant emitting

activities at a single facility, under common control, and which belong

to the same industrial grouping to be counted together when computing

the changes in emissions for purposes of new source review.

This action will give sources flexibility by allowing them to make

modifications which may increase pollution from one emission unit at a

plant, but result in a decrease in the pollutant on a plantwide basis.

Through the process of ``netting,'' in which reductions of emissions at

one site within a plant can be credited against increases in emissions

at another site, unnecessary new source review actions can be

eliminated. This change will free time and resources for those actions

which would result in overall increases of a pollutant, and therefore

require more careful new source review.

Pursuant to section 193 of the Clean Air Act, the ``general savings

clause,'' EPA must determine whether this revision to Rhode Island's

NSR Program ensures equivalent or greater reductions of nonattainment

area pollutants. In conducting this analysis, EPA examined the impact

of all revisions to Rhode Island's SIP since 1990. EPA's analysis found

that Rhode Island's SIP revision will ensure equivalent or greater

emissions reductions as compared with the existing Rhode Island SIP.

To determine the impact of Rhode Island's change from the dual

source definition to the plantwide definition, EPA considered the

number of sources effected by the change. Typically, the change in the

source definition from dual source to plantwide may allow more sources

to ``net out'' of NSR. However, the NSR rules contain numerous

applicability provisions that all work together in determining if a new

source is subject to NSR or if it can ``net out.'' EPA concludes that,

while the revision may allow more sources to net out of NSR, EPA could

not determine the number of sources directly effected by the revision.

In addition, EPA found that from 1990 through 1997, no new sources

triggered Rhode Island's current NSR applicability requirements for

major modifications. Considering the small number of sources effected

by Rhode Island's permitting program, EPA concludes that relaxing one

element of Rhode Island NSR applicability provisions would result in an

insignificant increase in emissions, if any.

To offset the relatively small increase in emissions from the

revision, EPA considered other revisions submitted by Rhode Island

since 1990 that strengthen its SIP. EPA notes that as part of the

plantwide definition revision submittal, Rhode Island is revising its

BACT rules. The BACT revision clarifies the minimum control standards

that all new major and minor source must implement. Rhode Island's BACT

revision will ensure that BACT controls and procedures meet high

standards of performance and result in greater emission reductions for

all new sources throughout Rhode Island.

EPA concludes that the overall effect of Rhode Island's revised SIP

will ensure reductions equivalent to those obtained in the existing

SIP. EPA understands that the plantwide definition is a relaxation of

the SIP that may cause a slight increase in emissions. However, EPA

believes that Rhode Island's revision clarifying the minimum

requirements for the State's BACT provisions strengthens the SIP and

provides emission decreases that more than offset the emission

increases from the new source definition revision. Therefore, EPA finds

that approving Rhode Island's nonattainment area NSR revisions is

consistent with the Act.

Particulates

Prior to 1987, the NAAQS for particulates was evaluated using TSP.

States maintained monitoring networks to track levels of TSP. In 1987,

EPA revised the NAAQS for particulates to measure PM10. This was in

response to evidence that the smaller particles were responsible for

the majority of the health problems which had been linked to

particulates. In 1993, EPA made PM10 the standard for PSD. This

revision eliminated the need for requirements for TSP monitors. Rhode

Island still maintained some TSP monitors, since their state

regulations still required TSP measurements for NSR purposes. The

changes Rhode Island is making will eliminate those TSP requirements

and make PM10 the

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sole criterion for particulates. In the future, Rhode Island will have

to amend these rules to incorporate EPA's recently promulgated standard

for yet finer particles, so-called PM2.5. This change can be

accomplished by a future SIP revision.

BACT

Rhode Island's current regulations define BACT so that it must be

no less stringent than the emission standards found in 40 CFR parts 60

and 61. 40 CFR part 60 includes performance standards for new

stationary sources; 40 CFR part 61 includes requirements from hazardous

air pollutants. The revised rule will require that BACT be no less

stringent than all applicable State and Federal standards. This change

will make BACT more stringent by adding the new post-1990 hazardous air

pollution requirements from 40 CFR part 63 and any further State

controls to the floor of BACT. By making BACT more stringent, Rhode

Island will require sources to consider a wider range of technologies

and, when BACT is required, utilize the strongest available technology.

II. Final Action

EPA is approving amendments to Air Pollution Control Regulation

Number 9. The EPA is publishing this rule without prior proposal

because the Agency views this as a noncontroversial amendment and

anticipates no adverse comments. However, in the proposed rules section

of this Federal Register publication, EPA is publishing a separate

document that will serve as the proposal to approve the SIP revision

should relevant adverse comments be filed. This action will be

effective August 2, 1999 without further notice unless the Agency

receives relevant adverse comments by July 2, 1999.

If the EPA receives such comments, then EPA will publish a notice

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period on the proposed rule. Any parties

interested in commenting should do so at this time. If no such comments

are received, the public is advised that this rule will be effective on

August 2, 1999 and no further action will be taken on the proposed

rule.

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.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State

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relationship under the Clean Air Act, preparation of 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).

F. 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.

G. Submission To Congress And The Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804 (2).

H. 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 August 2, 1999. 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, Best available control technology, Air

pollution control, Incorporation by reference, Intergovernmental

relations, Monitoring requirements, New Source Review, Particulate

matter, Prevention of significant deterioration, Reporting and

recordkeeping requirements.

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: May 6, 1999.

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 et seq.

Subpart OO--Rhode Island

2. Section 52.2070 is amended by adding paragraph (c)(54) to read

as follows:

Sec. 52.2070 Identification of plan

* * * * * *

(c) * * *

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

Rhode Island Department of Environmental Management on.

(i) Incorporation by reference.

(A) Letter from the Rhode Island Department of Environmental

Management dated 9 August 1996 submitting a revision to the Rhode

Island State Implementation Plan.

(B) Changes to Air Pollution Control Regulation Number 9.

For the State of Rhode Island.

3. In Sec. 52.2081 Table 52.2081 is amended by adding new entries

to existing state citations for Air Pollution Control Regulation No 9:

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

* * * * *

Table 52.2081.--EPA-Approved Rules and Regulations

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Date Comments/

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

State EPA sections

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*

No. 9.......... Air Pollution 7/30/96 6/2/99.......... [Insert FR (c)(54)....... 5

Control Permits. citation from

published date].

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[FR Doc. 99-13028 Filed 6-1-99; 8:45 am]

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