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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC017-2013a; FRL-6234-6]

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia; Reasonably Available Control Technology for

Oxides of Nitrogen

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

[[Page 9273]]

SUMMARY: EPA is conditionally approving a State Implementation Plan

(SIP) revision submitted by the District of Columbia. This revision

requires major sources of nitrogen oxides (NOX) in the

District to implement reasonably available control technology (RACT).

The effect of this action is to approve the SIP revision on the

condition that deficiencies in the regulation are corrected and that

the revised regulation is resubmitted within one year of this approval.

DATES: This direct final rule is effective on April 26, 1999 without

further notice, unless EPA receives adverse comment by March 29, 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: Written comments should be mailed to David L. Arnold, Chief,

Ozone and Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental

Protection Agency, Region III, 1650 Arch Street, Philadelphia,

Pennsylvania 19103. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and

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

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

Columbia Department of Public Health, Air Quality Division, 2100 Martin

Luther King Ave, S.E., Washington, DC 20020.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney at (215) 814-2092, or

by e-mail at [email protected]. While information may be

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

EPA Region III address above.

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to section 182 of the Clean Air Act (CAA), ozone

nonattainment areas classified as serious or above are required to

implement RACT for all major sources of NOX by no later than

May 31, 1995. The major source size is determined by the classification

of the nonattainment area and whether it is located in the Ozone

Transport Region which was established by the CAA. Since the District

of Columbia is classified as a serious ozone nonattainment area, major

stationary sources are defined as those that emit or have the potential

to emit 50 tons or more of NOX per year.

On January 13, 1994, the District of Columbia Department of

Consumer and Regulatory Affairs (DCRA) submitted revisions to its State

Implementation Plan (SIP) that included a new regulation, Section 805,

of the District of Columbia Municipal Regulation (DCMR) No. 20,

Subtitle I entitled ``Reasonably Available Control Technology for Major

Stationary Sources of Oxides of Nitrogen.'' Section 805 requires

sources which emit or have the potential to emit 50 tons or more of

NOX per year to comply with RACT requirements by May 31,

1995. This action is being taken under section 110 of the Clean Air

Act.

II. Summary of the SIP Revision and EPA Evaluation

General Provisions

Subtitle I of 20 DCMR was amended to add a new section 805 that

applies to all sources in the District having the potential to emit

(PTE) 50 tons or more of NOX per year. Exemptions from the

requirements of section 805 are provided for sources that have a permit

from the District limiting the potential to emit to less than 50 tons

per year (TPY) and for emergency stand-by engines operated less than

500 hours per 12 month period. Section 805 contains presumptive

emission limits for certain source categories of NOX

including: stationary combustion turbines, fossil-fuel-fired steam-

generating units and asphalt concrete plants. Individual sources in

these categories with presumptive RACT emission limits may also apply

for alternative emission limits which reflect the application of

source-specific RACT. Approval of alternative determinations are

subject to approval by the District and EPA. All other major source

categories of NOX must have a RACT emission limit approved

by the District and EPA in an emissions control plan. All major sources

of NOX must submit an emissions control plan to the District

that describes the source and demonstrates how RACT will be

implemented. The District will conduct a public hearing for those

sources that apply for alternative emission limits and those not

subject to specific source category emission limits before final

approval is issued.

EPA Evaluation

EPA defines potential to emit in 40 CFR 51.165(a)(1)(iii) as the

maximum capacity of a source to emit unless federally enforceable

restrictions are imposed that would limit emissions. Subsection

805.1(c) in the District's rule exempts sources with a District permit

limiting PTE to less than 50 TPY, but does not also require sources to

have federally enforceable restrictions on PTE. In order to correct

this deficiency, the District must revise section 805.1(c) to allow

exemptions only where there are federally-enforceable restrictions that

limit NOX emissions to less than 50 TPY.

Source Category RACT

RACT for specific categories of NOX sources is

established in subsections 805.4, 805.5, 805.6 and 805.8. of DCMR No.

20, Subtitle 1 as listed in the table below, entitled ``RACT for

NOX Sources'':

RACT for NOX Sources

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

Rated heat

Source category Fuel type capacity NOX emission limit Averaging period

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

Simple Cycle Turbine............ Oil............... 100 75 ppmvd @ 15% O2 Not specified.

MMBTU/hr *. **.

Combustion Turbine (not Not specified..... 100 Exempt if operated N/A.

otherwise classified). MMBTU/hr. less than 500

hours/year.

Utility Boiler (not otherwise Fossil Fuel....... 20 No limit, RACT is Not specified.

specified). MMBTU/hr. defined as an

50 0.3 lbs./MMBTU.... Calendar day.

face-fired. MMBTU/hr.

100 0.43 lbs./MMBTU... Calendar day.

--tangential--face-fired-- MMBTU/hr.

stoker

Utility Boiler--tangential or Oil............... 100 0.25 lbs./MMBTU... Calendar day.

face-fired. MMBTU/hr.

[[Page 9274]]

Utility Boiler--tangential or Oil and Natural 100 0.25 lbs./MMBTU... Calendar day.

face-fired. Gas combined. MMBTU/hr.

Utility Boiler--tangential...... Natural Gas only.. 100 0.20 lbs./MMBTU... Calendar day.

MMBTU/hr.

Asphalt Concrete Plants......... N/A............... N/A............... 150 ppmvd NOX and Not specified.

500 ppmvd CO @ 7%

O2.

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

* Million British Thermal Units (MMBTU) per hour (hr).

** Parts per million dry volume (ppmvd).

Subsection 805.4 establishes emission limits for stationary

combustion turbines. Subsection 805.4(b)(1) exempts combustion turbines

operated less than 500 hours per calendar year from meeting the

NOX RACT limits in subsection 805.4. Subsection 805.5

establishes presumptive RACT for fossil-fueled steam-generating units.

Utility boilers with a rated heat capacity of 100 MMBTU or greater must

demonstrate compliance with the applicable emission limit using

approved continuous emissions monitoring (CEM) technology pursuant to

40 CFR part 60, appendix B. All other utility boilers and turbines

subject to these source category requirements may choose between CEM

technology or alternative test methods approved by the District and

EPA.

Subsection 805.5(a) requires any fossil fuel fired steam-generating

units with an energy input capacity greater than or equal to 20 MMBTU

per hour must adjust the combustion process on a yearly basis to

minimize the total emissions representing the sum of the NOX

emission rate and one-half the carbon moxide (CO) emission rate

(subsection 805.8). Although sources subject to this requirement must

record the results of the combustion process adjustments, this

requirement will not result in an additional emission limitation. The

combustion process adjustment is the only RACT requirement for sources

with a rated heat capacity equal to or greater than 20 MMBTU but less

than 50 MMBTU.

Subsection 805.6 specifies an emission limit of 150 ppmvd

NOX and 500 ppmvd CO corrected to 7% oxygen for asphalt

concrete plants that emit 50 TPY or greater of NOX. Sources

may choose between CEM or test methods approved by the District and EPA

to demonstrate compliance. However, if a source chooses to use testing,

subsection 805.6(d)(2) requires that testing be conducted at least

annually and demonstrate that the NOX emission rate does not

exceed the rate specified in subsection 805.5.

EPA Evaluation

The emission limits for large utility boilers are supported by data

gathered by the State and Territorial Air Pollution Program

Administrators (STAPPA) and the Association of Local Air Pollution

Control Officials (ALAPCO). EPA has published RACT-level NOX

emission rates for selected types of utility boilers that are to be

applied to groups of boilers on an areawide, BTU-weighted basis

(November 25, 1992, 57 FR 55620, 55625). The District's emission limits

for individual source units are very similar to EPA's areawide averages

and should provide the same level of control recommended by EPA. The

emission limit for oil-fired combustion turbines is supported by data

gathered for existing turbines by the Northeast States for Coordinated

Air Use Management (NESCAUM) and is acceptable. EPA has not issued

guidance on reducing NOX emissions from asphalt concrete

plants. EPA finds that the emission limit established for asphalt

concrete plants in section 805.6 of the District's rule constitutes an

acceptable level of RACT.

The District has defined RACT for combustion sources equal to or

greater than 20 MMBTU/hour but less than 50 MMBTU/hour as combustion

adjustments to minimize the result of the following equation:

NOX emission rate + (0.5 * CO emission rate).

The technical basis for this equation is unsupported, particularly

with respect to the partial addition of the CO emission rate. In some

cases, a NOX emission limit for a combustion source is

accompanied by a CO limit due to the potential for increased CO

emissions from NOX controls. However, EPA cannot determine a

logical basis for considering the sum of the two emissions rates in the

manner required by the District. The District's definition of RACT also

fails to require any measurable degree of control that would

demonstrate that the technology used is technically or economically

appropriate. With respect to the method used to regulate combustion

adjustments, the District must replace the equation with a technically

justifiable method to regulate combustion adjustments. In order to

correct the deficiency in RACT requirements for sources with a heat

input of 20 MMBTU or greater but less than 50 MMBTU the District must

either (1) revise the regulation to provide specific numeric emission

limitations or appropriate and enforceable operating and maintenance

requirements for these sources or (2) revise the regulation to require

specific emission limitation(s) for each source or provide an adequate

justification that it is unreasonable for the source to comply with

RACT considering technological and economic feasibility.

Source-specific (Generic) RACT Provisions

All other NOX sources having the potential to emit 50

tons of NOX per year not listed on the table above must

submit an emission control plan to the District specifying a RACT

emission limit that will be met by May 31, 1995 (subsection 805.7). The

emission control plan must be approved by the District and approved as

a SIP revision by EPA. Sources must demonstrate compliance using either

CEM technology or testing approved by the District and EPA. Testing, if

chosen, must be conducted annually and must demonstrate that the

NOX emission rate does not exceed the emission rate

specified in subsection 805.5 for the applicable fossil fuel steam-

generating unit. Daily records must be maintained and kept for three

years to demonstrate compliance with the applicable emission rate.

Emissions that are subject to any other regulation in subtitle I of 20

DCMR or those that have emission limits approved in a federally

enforceable regulation as meeting Best Available Control Technology

(BACT) or Lowest Achievable Emission Rate (LAER) since January 1, 1990,

are exempt from these requirements.

EPA Evaluation

Under subsection 805.7, major NOX sources that are not

otherwise covered by presumptive emission limits under section 805 are

subject to a process to develop and submit individual source

[[Page 9275]]

RACT determinations for the District's approval and submission to EPA

as SIP revisions. For all other major NOX sources or those

NOX sources electing not to comply with presumptive emission

requirements, the District provides the option of a source-specific

RACT determination through subsections 805.2(b) and 805.7. Subsections

805.2(b) and 805.7 specifically allow sources to have RACT approved via

the SIP revision process. EPA refers to this type of provision as a

``generic RACT'' provision in a state regulation. Specifically,

``generic RACT rules'' are defined as rules that merely require sources

to identify RACT-level controls which the state will later submit

through the SIP process.

EPA has long interpreted the RACT requirements of the Clean Air Act

to mean that states must adopt and submit regulations that include

emission limits as applicable to the subject sources. In other words, a

state would not fully meet the RACT requirement until it establishes

emission limits on all major sources. In a November 7, 1996 EPA policy

memorandum from Sally Shaver, Director, Air Quality Strategies and

Standards Division, to all Regional Air Division Directors, EPA

outlined the necessary prerequisites for approving a state's (or in

this case the District's) generic RACT regulation. In this memo, EPA

recognized that in most instances a generic RACT rule strengthens the

SIP to the extent that it sets dates by which sources must submit RACT

and comply with requirements.

The November 7, 1996 memo recommends that approval should be

granted to a state's generic rule as long as EPA believes that the

state has submitted all the source-specific RACT determinations and has

submitted a declaration that to the best of its knowledge, there are no

remaining unregulated sources. Full approval, however, should not be

granted until EPA has also determined through rulemaking that the

source-specific determinations also meet the RACT requirements.

In a letter dated December 16, 1998, the District of Columbia

Department of Health notified EPA that all major stationary sources of

NOX emissions in the District are subject to the presumptive

source category RACT limits of subsections 805.4, 805.5 or 805.6. In

other words, no major sources in the District have elected to apply for

alternative RACT determinations through the source-specific process.

Furthermore, the December 16, 1998 letter included a ``negative

declaration'' pertaining to the entire universe of all other categories

of major sources of NOX. In other words, the District has no

other major sources of NOX, such as incinerators,

reciprocating internal combustion engines, glass manufacturing, nitric/

adipic acid production, cement manufacturing and iron/steel

manufacturing plants, etc. The District has not and will not be

submitting any source-specific RACT determinations because the entire

of universe of major sources of NOX in the District are

subject to RACT emission limits under section 805. Because all major

sources of NOX in the District are subject to RACT, as

established in section 805, EPA finds that the requirements of sections

182 and 184 of the Clean Air Act have been met regardless of the

generic provisions of section 805.

Exemptions

Subsections 805.7(a)(1) and (2) allow major sources of

NOX that are subject to any other regulation in subtitle I

of 20 DCMR or those that have emission limits approved in a federally

enforceable regulation as meeting Best Available Control Technology

(BACT) or Lowest Achievable Emission Rate (LAER) since January 1, 1990,

to be excluded when calculating potential to emit to determine major

source applicability. Subtitle I embodies all of the District's air

pollution control regulations. Subsections 805.7(a)(1) and (2) allow

all NOX sources subject to any other regulation in subtitle

I of 20 DCMR or sources receiving LAER determinations since January 1,

1990 to be declared RACT without EPA approval via the SIP process.

EPA Evaluation

These provisions are unacceptable because EPA cannot delegate the

responsibility of approving RACT determinations to a state or other

regulatory authority such as the District. The CAA requires that EPA

make a determination as to whether a major source or source category's

requirement constitutes RACT. EPA cannot agree to LAER or any other

determination under subtitle I of 20 DCMR as RACT since those

determinations have not been before the EPA for review. Therefore,

subsections 805.7(a)(1) and (2) are inconsistent with the CAA and the

District must correct this deficiency.

Monitoring, Recordkeeping and Reporting

For sources subject to the presumptive limits found in section 805,

subsection 805.2(a) requires such sources to demonstrate compliance

with the applicable emission limits using continuous emission monitors

according to 40 CFR part 60, appendix B, or through other test methods

approved by the District and EPA. For combustion turbines and utility

boilers, compliance will be determined using an emission monitoring

system to continuously monitor and record the NOX emission

rate and demonstrate that the NOX emission rate does not

exceed the applicable allowable NOX emission rate

(subsections 805.4(d) and 805.5(e)). For sources electing alternative

emission limits as RACT, subsections 805.2(c) and 805.7(d) require all

sources to maintain continuous compliance through installation of a

continuous emissions monitoring system or other methods consistent with

the operational parameters and limits set forth in any permit or

certificate approved by the District and EPA.

EPA Evaluation

Specific recordkeeping requirements necessary to determine

compliance are not contained in the regulation. Subsection 805.3(c)(4)

requires all emission control plans to include recordkeeping procedures

for air pollution control equipment used to reduce NOX

emissions. However, since the emission control plans for sources

subject to source category limits in subsections 805.4 through 805.6

are not required to be submitted as SIP revisions they are not made

federally enforceable through this regulation. EPA believes that this

deficiency is resolved through Chapter 5 of subtitle I of the

District's regulations. This SIP-approved Chapter requires stationary

sources with emissions greater than 25 TPY to conduct testing and

maintain adequate records for compliance with applicable requirements.

Sources subject to the emission limits for asphalt concrete plants

that choose to perform testing, as opposed to CEM, are required to meet

additional emission limits that are unidentifiable and technically

infeasible. Subsection 805.6(c)(2)(C) requires testing to demonstrate

that the emission rate does not exceed the applicable emission rate in

subsection 805.5. The latter section establishes presumptive RACT

technology and specific emission limits for fossil-fuel steam-

generating units. The District's rule should require that asphalt

concrete sources subject to the emission limits in subsection 805.6 to

conduct testing to demonstrate compliance with emission limits for

asphalt concrete sources established in 805.6.

Similarly, in subsection 805.7(d)(2)(C), sources subject to case-

by-case RACT determinations that conduct testing (as opposed to

[[Page 9276]]

continuous emission monitoring) are required to demonstrate compliance

with the NOX emission rate specified in subsection 805.5.

The reference to subsection 805.5 is incorrect in that this section

establishes emission limits specifically for fossil-fuel steam-

generating units. Subsection 805.7(d)(2)(C) should require affected

sources to conduct testing to demonstrate compliance with the limits

contained in an approved emission control plan that has been submitted

and approved by EPA as a SIP revision.

EPA has evaluated section 805 of the District's regulation for

consistency with the CAA and EPA regulations, and has found, as noted

above, certain deficiencies which result in enforceability problems and

in the regulation of a smaller population of sources than required by

the CAA. A more detailed description of the District's submittal and

EPA's evaluation are included in the Technical Support Document (TSD)

prepared in support of this rulemaking action. A copy of the TSD is

available, upon request, from the EPA Regional Office listed in the

ADDRESSES section of this document.

III. Final Action

EPA is conditionally approving section 805, subtitle I of 20 DCMR,

the requirements to implement RACT on major sources of NOX,

submitted by the District of Columbia into the District's SIP. In a

letter dated December 16, 1998, the District of Columbia Department of

Health requested EPA to propose conditional approval of the District's

NOX RACT SIP and committed to correct deficiencies

identified in today's rulemaking and resubmit such revisions to EPA as

a SIP submittal.

EPA is conditionally approving section 805 of the District of

Columbia's NOX RACT regulation, pursuant to section

110(k)(4) of the CAA on the basis that section 805 strengthens the SIP

by establishing compliance dates and RACT limits on major categories of

NOX sources. The District must correct the deficiencies

enumerated below within twelve months of the effective date of today's

rulemaking. If the District fails to revise and resubmit the regulation

within one year of this conditional approval the conditional approval

will convert to a disapproval.

1. The District must revise subsection 805.1(c) to allow exemptions

only where there are federally-enforceable restrictions that limit

NOX emissions to less than 50 tons per year.

2. With respect to the method used to regulate combustion

adjustments in subsection 805.8, the District must replace the equation

with a technically justifiable method to regulate combustion

adjustments. In order to correct the deficiency in RACT requirements

for sources with a heat input of 20 MMBTU or greater but less than 50

MMBTU, the District must either (1) revise the regulation to provide

specific numeric emission limits or appropriate and enforceable

operating and maintenance requirements for these sources or (2) revise

the regulation to require specific emission limit(s) for each source or

provide an adequate justification that it is unreasonable for the

source to comply with RACT considering technological and economic

feasibility.

3. The District must remove the exclusions found in subsections

805.7(a)(1) and (2) for the purposes of determining potential

emissions.

4. The District must correct subsection 805.7(d)(2)(C) to require

affected sources to conduct testing to demonstrate compliance with the

limitations contained in an approved emission control plan that has

been submitted and approved by EPA as a SIP revision.

5. The District must correct subsection 805.6(c)(2)(C) to require

that asphalt concrete sources subject to the emission limits in

subsection 805.6 conduct testing to demonstrate compliance with

emission limits for asphalt concrete sources.

If the District fails to meet the conditions of this approval

action, the EPA Regional Administrator will make a finding, by letter,

that the conditional approval is converted to a disapproval and the

clock for imposition of sanctions under section 170(a) of the CAA will

start as of the date of the letter. Subsequently, a document will be

published in the Federal Register announcing that the SIP revision has

been disapproved.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comment. However, in the ``Proposed Rules'' section of today's

Federal Register, EPA is publishing a separate document that will serve

as the proposal to conditionally approve the District's NOX

RACT SIP revision if adverse comments are filed. This rule will be

effective on April 26, 1999 without further notice unless EPA receives

adverse comment by March 29, 1999. If EPA receives adverse comment, EPA

will publish a timely withdrawal in the Federal Register informing the

public that the rule will not take effect. EPA will address all public

comments in a subsequent final rule based on the proposed rule. EPA

will not institute a second comment period on this action. Any parties

interested in commenting must do so at this time.

III. Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and 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. If EPA complies by consulting, E.O. 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

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has 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 final rule is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined

[[Page 9277]]

by E.O. 12866, and it does not address an environmental health or

safety risk that would have a disproportionate effect on children.

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. 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 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. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

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

E. Regulatory Flexibility Act

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 conditional approvals of

SIP submittals under section 110 and subchapter I, part D of the CAA do

not create any new requirements but simply approve requirements that

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

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-State relationship under the Clean Air

Act, 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).

If the conditional approval is converted to a disapproval under

section 110(k), based on the State's failure to meet the commitment, it

will not affect any existing state requirements applicable to small

entities. Federal disapproval of the state submittal does not affect

its state-enforceability. Moreover, EPA's disapproval of the submittal

does not impose a new Federal requirement. Therefore, the EPA certifies

that this disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it substitute a new federal requirement.

F. 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

annual 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 promulgated does not

include a Federal mandate that may result in estimated annual 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 to conditionally approve the District of

Columbia's NOX RACT regulations in section 805, subtitle I

of 20 DCMR, must be filed in the United States Court of Appeals for the

appropriate circuit by April 26, 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,

Ozone, Reporting and recordkeeping requirements.

Dated: February 12, 1999.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

40 CFR part 52 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 J--District of Columbia

2. Section 52.473 is amended by adding paragraph (c) to read as

follows:

Sec. 52.473 Conditional approval.

* * * * *

(c) The District of Columbia's January 13, 1994 SIP submittal of

section 805 of the District of Columbia Municipal Regulation (DCMR) No.

20, Subtitle I, ``Reasonably Available Control Technology (RACT) for

Major Stationary Sources of Oxides of Nitrogen (NOX),'' is

conditionally approved based on certain contingencies. The condition

for approval is to revise section 805 and resubmit the section as a SIP

revision

[[Page 9278]]

within one year of April 26, 1999, according to the following:

(1) The District must revise subsection 805.1(c) to allow

exemptions only where there are federally-enforceable restrictions that

limit NOX emissions to less than 50 tons per year.

(2) With respect to the method used to regulate combustion

adjustments in subsection 805.8, the District must replace the equation

with a technically justifiable method to regulate combustion

adjustments. In order to correct the deficiency in RACT requirements

for sources with a heat input of 20 MMBTU or greater but less than 50

MMBTU the District must either revise the regulation to provide

specific numeric emission limits or appropriate and enforceable

operating and maintenance requirements for these sources, or revise the

regulation to require specific emission limit(s) for each source or

provide an adequate justification that it is unreasonable for the

source to comply with RACT considering technological and economic

feasibility.

(3) The District must remove the exclusions found in subsections

805.7(a)(1) and (2) for the purposes of determining potential

emissions.

(4) The District must correct subsection 805.7(d)(2)(C) to require

affected sources to conduct testing to demonstrate compliance with the

limits contained in an approved emission control plan that has been

submitted and approved by EPA as a SIP revision.

(5) The District must correct subsection 805.6(c)(2)(C) to require

that asphalt concrete sources subject to the emission limits in

subsection 805.6 conduct testing to demonstrate compliance with

emission limits for asphalt concrete sources.

[FR Doc. 99-4434 Filed 2-24-99; 8:45 am]

BILLING CODE 6560-50-P