[Federal Register Volume 59, Number 181 (Tuesday, September 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23241]


[[Page Unknown]]

[Federal Register: September 20, 1994]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH12-1-6318; A-1-FRL-5074-9]

 

 Clean Air Act Limited Approval/Limited Disapproval and 
Promulgation of Emission Statement Implementation Plans for New 
Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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

SUMMARY: EPA is proposing a limited approval/limited disapproval of a 
State Implementation Plan (SIP) revision submitted by the State of New 
Hampshire. This revision establishes an emission statement program for 
stationary sources throughout the State. New Hampshire's submittal 
includes amendments to Chapter Env-A 900 (Parts 901-903). This action 
proposes limited approval of New Hampshire's Chapter Env-A 900, ``Owner 
and Operator'' for the purpose of strengthening the New Hampshire SIP. 
In addition, this action proposes limited disapproval of New 
Hampshire's Chapter Env-A 900 (Parts 901-903) since the regulation 
fails to meet all requirements of the Clean Air Act (CAA). This action 
is being taken pursuant to section 110 of the CAA. Public comments are 
solicited on the requested SIP revisions and on EPA's proposal of a 
limited approval/limited disapproval.
DATES: Comments received in writing by October 20, 1994 will be 
considered in the development of USEPA's final rule action.

ADDRESSES: Comments should be mailed to Linda M. Murphy, Director, Air, 
Pesticides, and Toxics Management Division, JFK Federal Building, 
Boston, MA 02203.
    Copies of the State's submittal and other information are available 
for inspection during normal business hours, by appointment, at the 
following location: Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region I, One Congress Street, 
10th floor, Boston, MA 02203. In addition, New Hampshire's submittal is 
available at the Air Resources Division, Department of Environmental 
Services, 64 North Main Street, Caller Box 2033, Concord, NH 03302-
2033.

FOR FURTHER INFORMATION CONTACT: Daria L. Dilaj, U.S. Environmental 
Protection Agency, Region I, JFK Federal Building (APS), Boston, MA 
02203. Phone: (617) 565-3249.

SUPPLEMENTARY INFORMATION:

I. Background

    The air quality planning and State Implementation Plan (SIP) 
requirements for ozone nonattainment and transport areas are set out in 
subparts I and II of part D of title I of the Clean Air Act, as amended 
by the Clean Air Act Amendments of 1990 (CAA or ``the Act''). EPA has 
published a ``General Preamble'' describing EPA's preliminary views on 
how EPA intends to review SIP's and SIP revisions submitted under title 
I of the CAA, including those State submittals for ozone transport 
areas within the States (see 57 FR 13498 (April 16, 1992) (``SIP: 
General Preamble for the Implementation of title I of the Clean Air Act 
Amendments of 1990''), 57 FR 18070 (April 28, 1992) (``Appendices to 
the General Preamble''), and 57 FR 55620 (November 25, 1992) (``SIP: 
NOx Supplement to the General Preamble'')). EPA has also issued a draft 
guidance document describing the requirements for the emission 
statement programs discussed in this Notice entitled ``Guidance on the 
Implementation of an Emission Statement Program'' (July, 1992). The 
Agency is also conducting a rulemaking process to modify part 40 of the 
CFR to reflect the requirements of the emission statement program.

II. Analysis of State Submission

A. Procedural Background

    The Act requires each state to observe certain procedural 
requirements in developing its SIP, of which the emission statement 
program will become a part. Section 110(l)(2) of the Act provides that 
each implementation plan submitted by a State under the CAA must be 
adopted by such State after reasonable notice and public hearing. EPA 
must at the outset determine whether a submittal is complete and 
therefore warrants further EPA review and action (see section 110(k)(1) 
and 57 FR 13565). EPA's completeness criteria for SIP submittals are 
set out at 40 CFR part 51, appendix V (1991), as amended by 57 FR 42216 
(August 26, 1991).
    The State of New Hampshire held a public hearing on June 18, 1992. 
Following the public hearing, the plan was adopted by the State on 
November 13, 1992 and submitted to EPA on December 21, 1992 as a 
proposed revision to the SIP. The SIP revision was reviewed by EPA and 
deemed complete on February 19, 1993.

B. Components of Emission Statement Program

    There are several key general and specific components of an 
acceptable emission statement program. Specifically, the State must 
submit a revision to its SIP and the emission statement program must 
meet the minimum requirements for reporting by the sources and the 
State. In general, the program must include, at a minimum, provisions 
for applicability, definitions, compliance, and the specific source 
requirements detailed below.
1. SIP Revision Submission
    EPA requires States to submit their SIP revisions within 2 years of 
enactment of the Clean Air Act Amendments of 1990 (CAAA) (November 15, 
1990). New Hampshire submitted its SIP revision on January 12, 1993.
2. Reporting Requirements for State
    In addition to the program elements applying to sources, the SIP 
should include a provision that requires States to provide EPA the 
identifying information for the sources covered by the emission 
statement program, the value for rule effectiveness utilized by the 
State in its SIP calculations, the source data elements entered into 
AIRS, and quarterly emission statement status reports. The minimum 
source identification information should include the AIRS code, the AFS 
point number (ID), the AFS segment number (ID), and the Source Category 
Code (SCC) and descriptions for each segment. In addition, States 
should supply to EPA the current rule effectiveness (RE) factors at the 
SCC pollutant level, if applicable, and the RE method codes. The 
emission statement data submittal to AIRS should include all data 
obtained from the source and the State. These source-supplied data 
elements include source identification information (name, physical 
location, mailing address of the facility, latitude and longitude, and 
4-digit Standard Industrial Classification (SIC) code(s)), operating 
schedule information (percentage annual throughput, days per week on 
the normal operating schedule, hours per day during the normal 
operating schedule, and hours per year on the normal operating 
schedule), process rate data (annual process rate (annual throughput) 
and peak ozone season daily process rate), control equipment 
information (current primary and secondary control equipment 
identification codes and current combined control equipment efficiency 
(%)), and emissions information (estimated actual VOC and NOx emissions 
at the segment level (in tons per year for an annual emission rate and 
pounds per day for a typical ozone season day), estimated emissions 
method code, calendar year for the emissions, and emission factor (if 
used)). EPA recommends that the States electronically submit emission 
statement data into the AIRS database no later than July 1 of each 
year, commencing in 1993. The quarterly reports should show the total 
number of facilities that met the State's emission statements program 
requirements and the number of facilities that failed to meet the 
requirements. Quarterly reports should be submitted commencing no later 
than July 1, 1993.
    New Hampshire has not committed to submitting emission statement 
data to EPA by July 1 of each year. EPA will negotiate with New 
Hampshire to include a submittal date and requirement for quarterly 
emission statement reports in future 105 grants.
    New Hampshire has not required source identification information, 
operating schedule information, control equipment information, process 
data information, and annual and typical ozone season day emissions 
from all potentially subject source categories. New Hampshire only 
requires source identification information and operating schedule 
information from surface coating and printing sources under Env-A 
901.04(c), gasoline storage and degreasing facilities under Env-A 
901.05(b), and fuel combustion and incinerator sources under Env-A 
901.06(c)(1) and 901.06(c)(3). Under Env-A 901.04(h), New Hampshire 
requires all facilities with add-on VOC control equipment to keep 
records of control equipment information, but not to report this 
information. Facilities with add-on NOx control equipment are required 
to record this information under Env-A 901.06(c)(6). New Hampshire only 
requires process data information from surface coating and printing 
sources under Env-A 901.04(c)(5) and combustion sources under Env-A 
901.06(c)(4). Recordkeeping, but not reporting, is required for 
gasoline storage sources under Env-A 901.04(e)(1) and degreasing 
facilities under Env-A 901.04(g)(2). New Hampshire only requires annual 
and typical ozone season day emissions from surface coating and 
printing sources under Env-A 901.04(c)(7), and combustion sources under 
Env-A 901.06(c)(5). This is also required from degreasing sources under 
Env-A 901.04(g)(4), however, sources are not required to report this 
information, only to keep records. No emissions reporting requirements 
were made for VOC/gasoline storage or for other types of sources.
3. Sources Covered
    Section 182(a)(3)(B) requires that States with areas designated as 
nonattainment for ozone require emission statement data from all 
sources of VOC or NOx in the nonattainment areas. This requirement 
applies to all classified ozone nonattainment areas, regardless of the 
classification (Marginal, Moderate, etc.). Section 184(b)(2) of the Act 
extends the requirements for major stationary sources in moderate ozone 
nonattainment areas to sources in the ozone transport region. Section 
182(f) extends the requirements for major stationary sources of VOC in 
ozone transport regions to major sources of NOx. The emission statement 
requirement covers sources in attainment areas and nonattainment areas 
which are not classified within the ozone region which emit, or have 
the potential to emit, 100 tpy or more of NOx or 50 tpy or more of VOC.
    New Hampshire is located in the ozone transport region. Emission 
statement regulations must apply State-wide, and cover all stationary 
sources which emit or have the potential to emit 50 tpy of VOC or 100 
tpy of NOx. In addition, New Hampshire has three classified ozone 
nonattainment areas and are therefore subject to the more stringent 
source threshold requirement of section 182(a)(3)(B). The area which 
includes all of Merrimack County, part of Hillsborough County, and part 
of Rockingham County, is classified Marginal. The second nonattainment 
area includes all of Strafford County and part of Rockingham County, 
and is classified as Serious. Finally, a portion of New Hampshire is in 
the Boston-Lawrence-Salem Consolidated Metropolitan Statistical Area 
(CMSA), which is also classified as Serious. This includes a range of 
cities and towns from Nashua to Exeter in portions of Hillsborough and 
Rockingham Counties. For these classified ozone nonattainment areas, 
the States' emission statement regulations must cover all sources which 
emit VOC or NOx.
    For classified ozone nonattainment areas, the States may waive, 
with EPA approval, the requirement for an emission statement for 
classes or categories of sources with less than 25 tons per year of 
actual plant-wide NOx or VOC emissions in nonattainment areas if the 
class or category is included in the base year and periodic inventories 
and emissions are calculated using emission factors established by EPA 
(such as those found in EPA publication AP-42) or other methods 
acceptable to EPA. New Hampshire does not waive the emission statement 
requirement for sources emitting less than 25 tons per year of NOx or 
VOC emissions. New Hampshire requires certain sources that have 
potential emissions of less than 25 tons per year to supply their data 
and information required for calendar year 1992 by April 15, 1993. In 
addition, these sources are required to submit emission statements for 
every third calendar year, beginning with 1995, by April 15 of the 
following year. All NOx emitting sources that are required to submit 
emission statement information under EPA's guidance are covered in New 
Hampshire's regulation. Under Env-A 901.07, fuel burning devices, as 
well as miscellaneous sources having theoretical potential NOx 
emissions of at least 25 tpy, are required to submit information on an 
annual basis.
    However, New Hampshire's regulation does not address all VOC 
sources recommended in EPA's guidance. Since New Hampshire is located 
in the ozone transport region, emission statement regulations must 
apply State-wide and cover all sources which emit or have the potential 
to emit 50 tpy of VOC. In addition, New Hampshire has three classified 
ozone nonattainment areas and are therefore subject to the more 
stringent source threshold requirement of section 182(a)(3)(B). These 
classified nonattainment areas must require emission statement data 
from all sources of VOC in the nonattainment areas unless New Hampshire 
waives, with EPA approval, the requirement for an emission statement 
for classes or categories of sources with less than 25 tons per year of 
actual plant-wide VOC emissions in nonattainment areas. In Env-A 
901.05(d), emission statements are required to be submitted for sources 
which are subject to the recordkeeping requirements of Env-A 901.04 and 
the applicability criteria of Env-A 1204.03. The applicability criteria 
of Env-A 1204.03 cover sources subject to EPA's existing control 
technique guideline (CTG) documents and other miscellaneous sources 
that have the potential to emit more than 50 tpy of VOC. Env-A 901.04 
covers the following sources: Any source required to be permitted under 
603.02(g) (surface coating, metal cleaning, or printing); 601.02(h) 
(VOC storage tanks); 603.02(i) (gasoline terminal loading racks); or 
any other paragraph of 603.02 which pertains to VOC emitters, with the 
exception of sources exempted by Env-A 901.03(a)(4). Env-A 901.03(a)(4) 
excludes from recordkeeping requirements, those sources using No. 1 and 
No. 2 fuel oils, natural gas, or electrical energy. Under New 
Hampshire's rules, the requirements for emission statements do not 
apply to miscellaneous VOC source categories (i.e., non-CTG) unless 
those sources are covered by Env-A 603.02. Only non-CTG sources that 
are coating or printing sources subject to 603.02(g) are covered by New 
Hampshire's emission statement program.
    In addition, the applicability criteria of Env-A 1204.03 only cover 
graphic arts printing, and non-CTG sources with potential VOC emissions 
greater than 50 tpy. Therefore, if certain non-CTG sources have actual 
VOC emissions greater than 25 tpy, but potential emissions less than 50 
tpy, they would not be covered by New Hampshire's program.
    Furthermore, New Hampshire's emission statement rule specifically 
excludes sources with VOC emissions resulting from combustion of No. 1 
and No. 2 fuel oils, or natural gas. As a result, New Hampshire has not 
required all sources that emit or have the potential to emit more than 
50 tpy of VOC to submit emission statements.
    Additionally, if either VOC or NOx is emitted at or above the 
statutory reporting level, the other pollutant must be included in the 
emission statement, even if it is emitted at levels below the specified 
cutoffs. New Hampshire did not include this requirement in its rule. 
New Hampshire's rule was proposed in May 1992 and EPA provided comments 
in June 1992. However, this requirement was not clearly stated in EPA's 
emission statement guidance until July 1992. Therefore, New Hampshire 
was unaware of this requirement at the time the regulation was 
proposed.
4. Reporting Requirements for Sources
    Sources covered by the State emission statement program should 
submit, at a minimum, the data elements described under section II.B.2 
of this document.
    The emission statement submitted by the source should contain a 
certification that the information is accurate to the best knowledge of 
the individual certifying the statement. EPA recommends that the State 
program require the submission of the data from the sources no later 
than April 15 of each year.
    Env-A 901.05(d)(1) and 901.07(b)(1) require sources subject to the 
emission statement requirement to submit data for the calendar year 
1992 by April 15, 1993. Furthermore, these sections require that 
information for each subsequent calendar year be submitted by April 15 
of the following year.
    New Hampshire does require a certification of data accuracy under 
Env-A 901.04(b) and 901.06(b), however, this certification is not 
required to accompany the emission statement forms. In a June 24, 1992 
comment letter, EPA commented ``the certificate of data accuracy shall 
state, at a minimum, that the records required by Env-A and maintained 
at the facility are true and accurate. Also, the certificate of data 
accuracy must be submitted with each emission statement.'' New 
Hampshire's rule only requires that the certification be kept on the 
premises.
5. Reporting Forms
    Although EPA has developed a proposed format for the emission 
statement reporting process in its guidance document, the Act allows 
States to develop their own format for emission statement reporting. 
New Hampshire has not specified a format in which facilities are to 
submit data.

III. Proposed Action

    Because of the above deficiencies, EPA cannot grant approval of New 
Hampshire's rule under section 110(k)(3) and part D. EPA may grant a 
limited approval of the submitted rule under section 110(k)(3) in light 
of EPA's authority pursuant to section 301(a) to adopt regulations 
necessary to further air quality by strengthening the SIP. The approval 
is limited because EPA's action also contains a simultaneous limited 
disapproval. In order to strengthen the SIP, EPA is proposing a limited 
approval of Chapter Env-A 900 ``Owner or Operator Obligations'' (Parts 
901-903) under sections 110(k)(3) and 301(a) of the CAA.
    At the same time, EPA is also proposing a limited disapproval of 
this rule because it does not fully meet section 182(a)(3)(B) of part D 
of the Act. As provided under section 179(a) of the Act, the State will 
have up to 18 months after a final SIP disapproval to correct the 
deficiencies that are the subject of the disapproval before EPA is 
required to impose one of the two sanctions set forth in section 179(b) 
of the Act: either highway sanctions or new source review offsets. If 
the State has not corrected its deficiencies within 6 months after 
imposition of the first sanction, EPA must impose the second sanction. 
Any sanction EPA imposes must remain in place until EPA determines that 
the State has met the 1990 Amendments requirements. Note also that any 
final rulemaking disapproving the State's submission will trigger the 
requirement for EPA to impose a Federal implementation plan within two 
years of disapproval as provided under section 110(c)(1) of the Act.

IV. Request for Public Comments

    Public comments are solicited on the requested SIP revision and on 
EPA's proposal of a limited approval/limited disapproval. Public 
comments received by October 20, 1994 will be considered in the 
development of USEPA's final rulemaking action.

V. Administrative Requirements

A. Executive Order (EO) 12866

    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989. 54 FR 2214-2225. On January 6, 1989, the Office of 
Management and Budget (OMB) waived Table 2 and 3 SIP revisions, 54 FR 
2222, from the requirements of section 3 of Executive Order 12291 for a 
period of 2 years. USEPA has submitted a request for a permanent waiver 
for Table 2 and 3 SIP revisions. OMB has agreed to continue the 
temporary waiver until such time as it rules on USEPA's request. This 
request continues in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.

B. Regulatory Flexibility

    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 economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on small entities. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a regulatory 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. E.P.A. , 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. 7410 (a)(2).
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing Federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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 and impose any new Federal requirements.

List of Subjects in 40 CFR Part 52

    Air pollution control, Hydrocarbons, Intergovernmental relations, 
Nitrogen dioxide, Oxides of nitrogen, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: September 6, 1994.
John P. DeVillars,
Acting Regional Administrator, Region I.
[FR Doc. 94-23241 Filed 9-19-94; 8:45 am]
BILLING CODE 6560-50-F