Approval and Promulgation of Air Quality Implementation Plans; Delaware; Reasonably Available Control Technology Requirements for Nitrogen Oxide Sources

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE011/021-1031; FRL-6313-1]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware; Reasonably Available Control Technology Requirements for

Nitrogen Oxide Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing conditional limited approval of a State

Implementation Plan (SIP) revision submitted by the State of Delaware.

This revision requires major sources of nitrogen oxides

(NOX) in the State of Delaware to implement reasonably

available control technology (RACT). The intended effect of this action

is to propose conditional limited approval of Delaware regulation for

imposing RACT on major sources of NOX.

DATES: Comments must be received on or before April 21, 1999.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone &

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, Environmental Protection Agency, Region III, 1650 Arch

Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket

and Information Center, Environmental Protection Agency, 401 M. Street,

S.W., Washington, D.C. 20460; and Delaware Department of Natural

Resources & Environmental Control, Richardson & Robins, 89 Kings

Highway, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, at the

EPA Region III address above, or via 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 in accordance with

the procedures provided above.

SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department

of Natural Resources and Environmental Control (DNREC) submitted

Regulation No. 12 CONTROL OF NITROGEN OXIDE EMISSIONS as a revision to

its SIP. On November 26, 1993 (58 FR 62307), EPA published a Notice of

Proposed Rulemaking (NPR) for the State of Delaware. The NPR proposed

limited approval/limited disapproval of Regulation No. 12 pertaining to

the control of NOX emissions at major sources in the state.

On January 20, 1994, DNREC submitted a SIP revision which amended

Regulation No. 12. EPA is hereby withdrawing the NPR published on

November 26, 1993 and reproposing conditional limited approval of this

Delaware SIP revision. This action is being taken under Section 110 of

the Clean Air Act (CAA).

I. Background

Pursuant to Part D, Sections 182 and 184 of the CAA, RACT is to be

implemented at all major NOX sources by no later than May

31, 1995. A major source of NOX is defined by the

classification of the ozone nonattainment area in which it is located

and/or whether it is located in the ozone transport region (OTR)

established by the CAA. The entire State of Delaware is located in the

OTR, and RACT applies statewide. New Castle and Kent Counties are part

of the Philadelphia-Wilmington-Trenton ozone nonattainment area which

is classified as severe. For New Castle and Kent Counties, CAA Section

182 defines all stationary sources with the potential to emit 25 tons

per year (TPY) or more of NOX as major and requires that

RACT be implemented at such sources by no later than May 31, 1995. For

Sussex County, CAA Section 184 defines all stationary sources with the

potential to emit 100 TPY or more of NOX as major and

requires that RACT be implemented at such sources by no later than May

31, 1995.

II. Description of the Delaware Regulation No. 12 Imposing RACT on

Major Sources of NOX

NOX Emission Standards Requirements

Delaware Regulation No. 12, Section 3.2 contains specific emission

limits for fuel burning equipment with a rated heat capacity of 100

million BTU (MMBTU) per hour or greater. Gas fired face and tangential

units are required to meet an emission limit of 0.20 lbs of

NOX/MMBTU input. Oil or gas fired face and tangential units

are required to meet an emission limit of 0.25 lbs of NOX/

MMBTU input. Oil or gas fired cyclones are required to meet an emission

limit of 0.43 lbs of NOX/MMBTU input. Dry bottom coal fired

face and tangential units are required to meet an emission limit of

0.38 lbs of NOX/MMBTU input. Dry bottom coal fired stokers

are required to meet an emission limit of 0.40 lbs of NOX/

MMBTU input. These numerical emission limits are supported by data

gathered by the State and Territorial Air Pollution Program

Administrators (STAPPA) and Association of Local Air Pollution Control

Officials (ALAPCO).

All emission limits are required to be met on a 24-hour rolling

averaging period. For sources with a rated heat input capacity of 250

MMBTU/hr or more compliance shall be determined using continuous

emission monitoring systems (CEMs) approved by DNREC. For sources with

a rated heat input of greater than 150 MMBTU/hr but less than 250

MMBTU/hr compliance shall be determined using continuous emission

monitoring systems (CEMs) approved by DNREC, or by an enhanced

monitoring program approved by DNREC which identifies and correlates

various operating parameters with NOX emission levels

thorough source testing. These parameters will be used as surrogates to

monitor NOX emissions.

[[Page 13754]]

Periodic source testing will be required to verify the validity of

these surrogate parameters.

Regulation No. 12, Section 3.5 also contains specific emission

limits for gas turbines. The emission limit for gas fired simple or

combined cycle gas turbines, corrected to 15% oxygen, is 42 parts per

million (ppm). The emission limit for liquid fired simple or combined

cycle gas turbines, corrected to 15% oxygen, is 88 ppm. Both emission

standards require compliance to be demonstrated using a one hour

averaging period based on CEM or an alternative method approved by

DNREC and EPA.

NOX Technology Standards Requirements

Regulation No. 12, Section 3.2 also includes control technology

provisions for fuel burning equipment with a rated heat input capacity

of 100 MMBTU/hr or greater, existing fuel burning equipment shall be

presumed to be RACT if the owner or operator demonstrates that emission

limitations specified in Section 3.2 (and described above) can be met.

If the owner or operator does not make this demonstration, RACT shall

be installed to meet the specified emission limits of Section 3.2. RACT

for such sources will consist of combustion modification technology

including either low NOX burner technology with low excess

air (including Over Fire Air if technically feasible), or flue gas

recirculation with low excess air. Regulation No. 12, in Section 3.3,

requires that emissions from fuel burning equipment with a rated

capacity of 50 MMBTU/hr or greater shall not exceed those achieved by

installation of either low NOX burner technology with low

excess air, or an equivalent control technology approved by DNREC and

EPA. Section 3.3 requires emissions from fuel burning equipment with a

rated capacity of less than 50 MMBTU/hr shall not exceed those achieved

through an annual tune up performed by a qualified personnel. A log

must be maintained of the tune ups performed on each unit.

Regulation No. 12, Section 3.4 requires stationary internal

combustion engines to limit their emissions to no more than those

emitted using pre-ignition chamber combustion (also referred to as

clean burn technology) for gas fired units and those emitted when using

lean burn technology for diesel fired units, or equivalent control

technology approved by DNREC and EPA.

In Section 3.6, seasonal fuel switching shall be considered RACT

for sources opting to switch to a lower NOX emitting fuel.

Fuel switching is limited to the use of natural gas, liquid petroleum

gas (LPG), or distillate oil.

Case-by-Case RACT Requirements

Regulation No. 12, Section 3.8 covers all other major sources of

NOX (i.e., those not subject to Sections 3.2, 3.3, 3.4, 3.5,

or 3.6). These sources are to notify DNREC of their subject status,

submit a proposal as what constitutes RACT, including technical and

economic support documentation, and provide a schedule acceptable to

DNREC for implementing RACT. The schedule for implementation of RACT

must be by no later than May 31, 1995, and must include interim dates

for the issuance of purchase orders, start and completion of

modifications, and completion of compliance testing. The notification

to DNREC, submittal of a RACT proposal and schedule must be made no

later than November 15, 1993. DNREC will issue permits to these sources

imposing RACT. Section 5 of Regulation No. 12 entitled, Alternative and

Equivalent RACT Determination, also applies to these sources covered by

Section 3.8. It specifies that DNREC will submit the RACT

determinations made for such sources to EPA for approval as SIP

revisions.

Exempted Sources

Under Section 4 of Regulation No. 12, the following source types

and sizes are exempt from RACT requirements:

(1) Any fuel burning equipment used exclusively for providing

residential comfort and hot water.

(2) Any incinerator or thermal/catalytic oxidizer used exclusively

for pollution control.

(3) Any fuel burning equipment with a rated heat input capacity of

less than 15 MMBTU/hour.

(4) Any stationary internal combustion engine with a rated capacity

of less than 450 hp.

(5) Any source operating during the time period from the month of

November to the end of March and operating with a capacity factor of 5%

or less from April 1 to October 31.

(6) Any fuel burning equipment, gas turbine, or internal combustion

engine with an annual capacity factor of less than 5%.

Alternative and Equivalent RACT Requirements

Section 5 of Regulation No. 12 is entitled Alternative and

Equivalent RACT Determinations. It requires that any RACT

determinations made under Section 3.8, and any other alternative or

equivalent RACT measures (emission limits or technology requirements)

determined under Sections 3.2, 3.3, 3.4, or 3.5, must be submitted by

DNREC to EPA and approved as a SIP revisions. Section 5 also includes a

specific provision to allow an owner or operator with more than one

installation subject to Regulation No. 12 to use an alternative method

of achieving an overall source-wide NOX emission reduction

that is equivalent to the NOX emission reduction which would

be achieved if each individual unit complied with the RACT standards in

Section 3.

Compliance Certification, Record Keeping and Reporting Requirements

Section 7 specifies the compliance certification, record keeping

and reporting requirements for NOX sources subject to

Regulation No. 12. Section 7.4 requires that applicable CEMS and

associated data collection meet 40 CFR, Part 60, Appendix F. It also

requires that source stack testing be conducted in accordance with test

methods approved by DNREC and EPA.

III. EPA's Evaluation of Regulation No. 12 Imposing RACT for Major

Sources of NOX

EPA is proposing to approve the emission and control technology

standards required by Delaware Regulation No. 12 as RACT for fuel

burning sources. In the November 26, 1993 limited/limited disapproval

of Regulation No. 12, EPA specifically disapproved the exemptions

listed at Section 4. Since proposing limited approval/limited

disapproval of Regulation No. 12, EPA has reevaluated its position

since control requirements at very small units, such as those exempted

by Section 4, are generally not reasonable considering technological

and economic feasibility. A fuller explanation of this decision is

given in the TSD for this proposed rulemaking. In light of this

reevaluation, EPA no longer has the basis to propose disapproval of

Regulation No. 12 based on the Section 4 exemptions.

However, Regulation No. 12 does not include specific emission

limitations or control technology requirements as RACT for other major

sources of NOX in Delaware. Rather, Regulation No. 12

contains procedures for RACT to be imposed on non-fuel burning sources

on a case-by-case basis as alternative RACT determinations from the

specific RACT requirements for fuel burning sources. These sources are

not subject to specific, ``up-front'' (i.e. immediately ascertainable)

emission limitations. Instead, the regulations establish a process for

the State to review and approve individual RACT emission

[[Page 13755]]

limitations proposed by the sources, which are then to be submitted to

EPA as SIP revisions.

The CAA requires states to implement RACT on all major stationary

sources. Process-oriented generic regulations, such as this, which do

not include specific and ascertainable emission limitations for all

major sources, do not by themselves provide standards for EPA to

approve or disapprove as satisfying the definition of RACT. Therefore,

the CAA's RACT requirements are satisfied only after the specific

limitations imposed by the State on its major sources has been

submitted to EPA as SIP revisions and approved by EPA as RACT for the

subject sources.

In a November 7, 1996 policy memo from Sally Shaver, Director, Air

Quality Strategies and Standards Division of OAQPS, EPA issued a

guidance for approving state generic RACT regulations, like Delaware's,

provided certain criteria are met. This guidance does not exempt any

major source from RACT requirements but instead provides a de minimis

deferral of RACT only for the purposes of approving the state's generic

RACT regulation. The de minimis deferral level is determined by using

the 1990 NOX emissions, excluding the utility boiler

NOX emissions. The remaining 1990 non-utility boiler

emissions are then compared with the amount of non-utility

NOX emissions that have yet to have RACT approved into the

SIP. Generally, EPA expects that all utility boiler RACTs will be

approved prior to application of this de minimis deferral policy and

possible conversion of the generic RACT conditional approval to full

approval. EPA does not expect to defer more than 5% of the emissions

calculated in this manner in order to fully approve Delaware's generic

NOX RACT regulation. In accordance with the November 1996

policy, EPA is requiring that all utility boiler RACT determinations be

approved into the SIP before the limited approval can be converted to

full approval. Full approval of a generic RACT regulation under this

policy does not change the State's statutory obligation to implement

RACT for all major sources. No major NOX source is being

exempted from RACT requirements through this policy or today's

rulemaking.

Because EPA has not received SIP revisions of source-specific RACT

determinations for all major sources of NOX subject to RACT

under the CAA, EPA can at best, according to the November 7, 1996

policy memorandum, propose conditional limited approval of the

NOX generic rule. In support of this proposed rulemaking,

the State committed in a letter dated August 18, 1998 to submit, as SIP

revisions, the case-by-case RACT determinations made under Section 5 of

Regulation No. 12 within 12 months of EPA's final conditional approval

of the generic rule. For this reason, EPA is proposing conditional

limited approval of Regulation No. 12 as explained below.

Conditional Approval

EPA is proposing conditional limited approval of Delaware's

NOX RACT regulation. The proposed conditional approval is

based upon DNREC's commitment to submit all the source-specific RACT

determinations made under Section 5 of Regulation No. 12 as SIP

revisions by a date certain that is no later than 12 months after the

effective date of EPA's final conditional approval of Regulation No.

12. Therefore, to fulfill the condition of this approval, DNREC must,

by no later than 12 months after the effective date of EPA's final

conditional approval of this NOX RACT regulation, certify

that it has submitted all required case-by-case RACT determinations for

all currently known subject sources. Once EPA has determined that

Delaware has satisfied this condition, EPA shall remove the conditional

nature of its approval and Regulation No. 12 will at that time retain

limited approval status. Should Delaware fail to meet the condition as

specified above, the final conditional limited approval of the Delaware

Regulation No. 12 shall convert to a disapproval.

Limited Approval

EPA is also proposing limited approval of Regulation No. 12 on the

basis that it strengthens the Delaware SIP. Once EPA has approved all

of the case-by-case RACT determinations submitted by DNREC in

fulfillment of the conditional approval described above, the limited

approval will convert to a full approval.

EPA is soliciting public comments on the issues discussed in this

notice. These comments will be considered before taking final action.

Interested parties may participate in the federal rulemaking procedure

by submitting written comments to the EPA Regional office listed in the

ADDRESSES section of this document. A more detailed description of the

state submittal and EPA's evaluation are included in a 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.

Proposed Action

EPA is proposing conditional limited approval of Delaware

Regulation No. 12 imposing RACT on major sources of NOX ,

submitted on January 11, 1993 and January 20, 1994. EPA is proposing

conditional limited approval of this SIP revision based upon the

commitment made by DNREC to submit of all the case-by-case RACT

determinations made under Section 5 of Regulation No. 12 for all

subject within one year of the effective date of the final conditional

limited approval of Regulation No. 12. Within one year of the effective

date of the final conditional limited approval of Regulation No. 12,

DNREC must provide a written statement certifying to EPA that to the

best of its knowledge, it has submitted all of the SIP revisions

described above.

IV. 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. 12875 requires EPA to

provide to OMB 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

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997),

[[Page 13756]]

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

significant,'' as defined under Executive Order 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 proposed rule is not subject to Executive Order 13045 because

it is not an economically significant regulatory action as defined by

Executive Order 12866, and it does not address an environmental health

and safest 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, E.O. 13084 requires EPA to provide to OMB, 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, E.

O. 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 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 proposed rule will not have a significant impact on substantial

number of small entities because SIP approvals under section 110 and

301, and subchapter I, part D of the Clean Air Act do not create any

new requirements but simply approve requirements that the state is

already imposing. Therefore, because the Federal SIP approval does not

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

significant impact on a substantial number of small entities. 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 conditional approval is converted to 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, EPA certifies

that this proposed 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

costs to state, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule. EPA has determined that the approval

action proposed does not include a federal mandate that may result in

estimated costs of $100 million or more to either state, local, or

tribal governments in the aggregate, or to the private sector. This

federal action to propose conditional limited approval of Delaware

Regulation No. 12 for NOX RACT proposes to approve 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,

Ozone, Reporting and recordkeeping requirements.

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

Dated: March 11, 1999.

W. Michael McCabe,

Regional Administrator, Region III.

[FR Doc. 99-6899 Filed 3-19-99; 8:45 am]

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