[Federal Register Volume 61, Number 25 (Tuesday, February 6, 1996)]
[Rules and Regulations]
[Pages 4353-4357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2226]



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


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[RI-16-01-6673a; A-1-FRL-5337-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Rhode Island: Revisions to the Requirements and Procedures for NSR/PSD 
Permit Applications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The EPA is approving the State implementation plan (SIP) 
revisions submitted by the State of Rhode Island for the purpose of 
meeting requirements of the Clean Air Act Amendments of 1990 (CAAA) 
with regard to New Source Review (NSR) in areas that have not attained 
the National Ambient Air Quality Standards (NAAQS). In addition, EPA is 
approving revisions to Rhode Island's SIP pertaining to Prevention of 
Significant Deterioration (PSD) program in attainment areas and other 
miscellaneous requirements. In general, these revisions make the Rhode 
Island PSD program more consistent with the current Federal 
requirements. The intended effect of this action is to approve the 
State's request to amend its SIP to satisfy the Federal requirements. 
This action is being taken in accordance with the Clean Air Act.

DATES: This action is effective April 8, 1996, unless notice is 
received within 30 days that adverse or critical comments will be 
submitted. If the effective date is delayed, timely notice will be 
published in the Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director, 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, JFK Federal Building, Boston, MA 02203. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours, by appointment, at the 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 10th 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: Brendan McCahill, (617) 565-3262.

SUPPLEMENTARY INFORMATION: On March 11, 1993, the Rhode Island 
Department of Environmental Management (DEM) submitted revisions to its 
SIP pertaining to the requirements and procedures for the processing 
and approval of permit applications for new or modified stationary 
sources of air pollution. The revisions consist of modifications to 
Rhode Island's Air Pollution Control Regulation #9, ``Air Pollution 
Control Permits,'' and affect the following elements : (1) major source 
permitting in nonattainment areas, including ozone nonattainment areas; 
(2) PSD program; (3) minor source construction permitting; and (4) 
general administrative requirements of the permitting program.
    This notice is divided into five sections for clarity. Section I 
discusses the procedural background concerning Rhode Island's SIP 
submittal. Section II discusses the revisions to the general 
requirements for nonattainment NSR. Section III discusses the revisions 
to the specific requirements for NSR in the ozone nonattainment areas. 
Section IV discusses the revisions to the general requirements for the 
PSD program, minor source permitting requirements and general 
administrative requirements of the permitting program. Section V 
discusses the EPA's final action.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective April 8, 1996 unless, by March 7, 1996, adverse or critical 
comments are received. 

[[Page 4354]]

    If the EPA receives such comments, this action will be withdrawn 
before the effective date by simultaneously publishing a subsequent 
notice that will withdraw the final action. All public comments 
received will then be addressed in a subsequent final rule based on 
this action serving as a proposed rule. The EPA will not institute a 
second comment period on this action.
    Any parties interested in commenting on this action should do so at 
this time. If no such comments are received, the public is advised that 
this action will be effective on April 8, 1996.

Section I

Procedural Background

    Section 110(k) of the CAA sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-66, April 16, 1992). The CAA 
requires States to observe certain procedural requirements in 
developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing.1 Section 110(l) of the Act similarly provides that 
each revision to an implementation plan submitted by a State under the 
Act must be adopted by such State after reasonable notice and public 
hearing.

    \1\ Section 172(c)(7) of the Act provides that plan provisions 
for nonattainment areas shall meet the applicable provisions of 
Sec. 110(a)(2).
---------------------------------------------------------------------------

    The EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action [see Sec. 110(k)(1) 
and 57 FR 13565, April 16, 1992]. The 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 EPA attempts to make 
completeness determinations within 60 days of receiving a submission. 
However, a submittal is deemed complete by operation of law under 
section 110(k)(1)(B) if a completeness determination is not made by EPA 
within 6 months after receipt of the submission.
    The State of Rhode Island held a public hearing on October 19, 
1992, to entertain public comment on the new source review 
implementation plan. Following the public hearing, the plan was filed 
with the Secretary of State on March 4, 1993, and became effective on 
March 24, 1993. The plan was submitted to EPA on March 11, 1993 as a 
proposed revision to the SIP.
    The SIP revision was reviewed by EPA to determine completeness 
shortly after its submittal, in accordance with the completeness 
criteria referenced above. The submittal was found to be complete on 
May 6, 1993 and a letter dated May 10, 1993 was forwarded to Steve 
Majkut, Acting Chief, Division of Air Resources, DEM, indicating the 
completeness of the submittal and the next steps to be taken in the 
review process.

Section II

General Requirements for Nonattainment NSR

A. Background

    The air quality planning requirements for nonattainment new source 
review are set out in part D of subchapter I of the Act. The EPA has 
issued a ``General Preamble'' describing EPA's preliminary views on how 
EPA intends to review SIPs and SIP revisions submitted under part D, 
including those State submittals containing nonattainment area NSR SIP 
requirements [see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 
28, 1992)]. Because EPA is describing its interpretations here only in 
broad terms, the reader should refer to the General Preamble for a more 
detailed discussion of the interpretations of part D advanced in 
today's proposal and the supporting rationale.

B. Summary of Rhode Island's Regulation

    The general nonattainment NSR requirements are found in Secs. 172 
and 173 of part D of subchapter I of the Act and must be met by all 
nonattainment areas. The following paragraphs reference the 
nonattainment NSR requirements that were required to be submitted to 
EPA by November 15, 1992 and explain how Rhode Island's rules meet 
those requirements. Some of these provisions were already contained in 
Rhode Island's existing SIP while others are being approved today.
    a. Rhode Island regulation 9.4.3(a) establishes provisions in 
accordance with Sec. 173(a)(1)(A) of the CAA to assure that 
calculations of emissions offsets are based on the same emissions 
baseline used in the demonstration of Reasonable Further Progress 
(RFP).
    b. Rhode Island regulation 9.4.2(d)(5) establishes provisions in 
accordance with Sec. 173(c)(1) of the CAA to allow offsets to be 
obtained in another nonattainment area if: i) the area has an equal or 
higher nonattainment classification and ii) emissions from the other 
nonattainment area contribute to a NAAQS violation in the area in which 
the source would construct.
    c. Rhode Island regulation 9.4.2(d)(2-3) establishes provisions in 
accordance with Sec. 173(c)(1) of the CAA that any emissions offsets 
obtained in conjunction with the issuance of a permit to a new or 
modified source must be in effect and enforceable by the time the new 
or modified source commences operation.
    d. Rhode Island regulation 9.4.2(c) establishes provisions in 
accordance with Sec. 173(c)(1) of the CAA to assure that emissions 
increases from new or modified sources are offset by real reductions in 
actual emissions.
    e. Rhode Island regulation 9.4.3(a) establishes provisions in 
accordance with Sec. 173(c)(2) of the CAA to prevent emissions 
reductions otherwise required by the Act from being credited for 
purposes of satisfying part D offset requirements.
    f. The 1990 CAAA modified the Act's provisions on growth allowances 
in nonattainment areas by (1) Eliminating existing growth allowances in 
any nonattainment area that received a notice prior or subsequent to 
the Amendments that the SIP was substantially inadequate, and (2) 
restricting growth allowances to only those portions of nonattainment 
areas formally targeted as special zones for economic growth. Section 
173(b) and 173(a)(1)(B) of the CAA. Consistent with these changes, 
Rhode Island has removed from its SIP NSR regulations the growth 
allowance provisions. There are no zones currently in Rhode Island that 
are targeted for economic development.
    g. Rhode Island regulation 9.4.2(e) establishes provisions in 
accordance with Sec. 173(a)(5) of the CAA that, as a prerequisite to 
issuing any part D permit, require an analysis of alternative sites, 
sizes, production processes, and environmental control techniques for 
proposed sources that demonstrates that the benefits of the proposed 
source significantly outweigh the environmental and social costs 
imposed as a result of its location, construction, or modification.
    h. Rhode Island and the EPA-New England office have established a 
mechanism through the Regional grants program to supply information 
from nonattainment new source review permits to EPA's RACT/BACT/LAER 
clearinghouse in accordance with Sec. 173(d) of the CAA.
    i. Rhode Island regulation 9.1.39 establishes, in accordance with 
Secs. 302(z) and 111(a)(3) of the CAA, a definition of ``stationary 
source'' that includes certain internal combustion engines other than 
the newly defined category of ``nonroad engines.''
    j. Rhode Island regulation 9.4.2(b) establishes provisions in 
accordance 

[[Page 4355]]
with Sec. 173(a)(3) of the CAA that require owners or operators of each 
proposed new or modified major stationary source to demonstrate, as a 
condition of permit issuance, that all other major stationary sources 
under the same ownership in the State are in compliance with the CAA.

Section III

General Requirements for Ozone Nonattainment NSR

A. Background

    The general nonattainment NSR requirements are found in Secs. 172 
and 173 of Part D of subchapter I of the Act and must be met by all 
nonattainment areas. The requirements for ozone that supplement or 
supersede these requirements are found in subpart 2 of part D. In 
addition to requirements for ozone nonattainment areas, subpart 2 
includes Sec. 182(f), which states that requirements for major 
stationary sources of VOC shall apply to major stationary sources of 
oxides of nitrogen (NOX) unless the Administrator makes certain 
determinations related to the benefits or contribution of NOX 
control to air quality, ozone attainment, or ozone air quality. States 
were required under section 182(a)(2)(C) to adopt new NSR rules for 
ozone nonattainment areas by November 15, 1992.

B. Summary of Rhode Islands Submittal

    Pursuant to Sec. 172(c)(5) of the CAA, SIPs must require permits 
for the construction and operation of new or modified major stationary 
sources. The federal statutory permit requirements for ozone 
nonattainment areas are generally contained in revised Sec. 173, and in 
subpart 2 of subchapter I, part D of the CAA. These are the minimum 
requirements that States must include in an approvable implementation 
plan. For all classifications of ozone nonattainment areas and for 
ozone transport regions (OTRs), States must adopt the appropriate major 
source thresholds and offset ratios, and must adopt provisions to 
ensure that any new or modified major stationary source of NOX 
satisfies the requirements applicable to any major source of VOC, 
unless a special NOX exemption is granted by the Administrator 
under the provision of Sec. 182(f). For serious and severe ozone 
nonattainment areas, State plans must also implement Secs. 182(c) (6), 
(7) and (8) with regard to modifications. The entire state of Rhode 
Island is currently classified as a serious ozone nonattainment area.
    The following paragraphs reference the ozone nonattainment and OTR 
NSR requirements that Rhode Island was required to submit to EPA by 
November 15, 1992 and how Rhode Island has met those requirements.
    a. Rhode Island Regulations 9.4.1(b)(1) and 9.4.2 establish, in 
accordance with Secs. 182(c) and 182(f) of the CAA, major source 
thresholds for serious areas of 50 tons per year (tpy) for VOC and for 
NOX.
    b. Rhode Island Regulation 9.4.2(d)(4) establishes, in accordance 
with Secs. 183(c)(10) and 182(f) of the CAA, an offset ratio of 1.2 to 
1 for major sources or major modifications of VOC or NOX in 
serious areas.
    c. In combination, Rhode Island Regulations 9.1.25 and 9.1.37 
establish provisions that are consistent with the requirements of 
Sec. 182(c)(6) of the CAA, the De Minimis Ruling.
    d. Rhode Island Regulation 9.4.2 (a)(3) and (a)(4) establish 
provisions which are at least as stringent as the Federal special rules 
for modifications in Sec. 182(c) (7) and (8) of the CAA.

Section IV

Revisions to PSD Program, Minor Source Permitting, and General 
Requirements

A. Background

    Requirements for attainment NSR are set out in part C of subchapter 
I of the CAA and in 40 CFR 51.166 and must be met by all State PSD 
program SIPs. Minor source construction permitting requirements are 
contained in section 110(a)(2)(c) and 40 CFR 51.100-165. Rhode Island 
has revised various provisions in its PSD program and in its 
construction permitting regulation.

B. Summary of Rhode Island's Submittal

    In general, the revisions clarified the current procedures used by 
the DEM or implemented procedures consistent with current federal 
rules. A brief description of the revisions is as follows:

--The definition of significant net emissions increase for NOX in 
NOX attainment areas has been changed from 40 to 25 tpy.
--The threshold level for municipal incinerators in the definition of 
major source has been lowered from 250 to 50 tons of charged refuse per 
day. Municipal incinerators below the threshold level do not include 
fugitive emissions in determining whether the source is a major source.
--The definition of ``significant'' has been changed to include the 
significant net emission threshold levels for municipal waste combustor 
pollutants.
--The definitions for nonroad engines and nonroad vehicles have been 
added to the regulation.
--The limits to the percentage of increment consumed by a source or 
modification now applies only to major sources or major modifications.
--Sources are required to obtain a major source permit or a minor 
source permit, whichever applies.
--Certain air pollution control equipment have been exempted from minor 
source permitting requirements.
--The requirements for public participation in the review of major 
source permit applications have been added to the body of the 
regulation.
--The requirements for operating permits have been removed from the 
regulation.
--The time limit for a source to commence construct after issuance of a 
permit has been increased from 1 year to 18 months.
--The definition for ``State recovery facility'' has been removed from 
the regulation.

    For further details concerning the revisions to Rhode Island's Air 
Pollution #9 and EPA's evaluation, please refer to the memorandum 
entitled ``Technical Support Document--Rhode Island New Source Review 
Revisions.''

Section V

Final Action

    EPA is approving the revisions to the Rhode Island Air Pollution 
Control Regulation No. 9, ``Air Pollution Control Permits,'' except for 
Chapter 9.13, Application for an Air Toxics Operating Permit; Chapter 
9.14, Administrative Action: Air Toxics Operating Permits; Chapter 
9.15, Transfer of an Air Toxics Operating Permit; and Appendix A, 
Toxics Air Pollutants, Minimum Quantities. This regulation was 
effective in the State of Rhode Island on March 24, 1993. These 
revisions meet the nonattainment area NSR provisions of Part D of the 
CAA as well as the requirements of the General Preamble and other 
miscellaneous requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 603 and 
604. Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. 

[[Page 4356]]

    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under Section 110 of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. To the extent that the rules being approved by 
this action will impose no new requirements; such sources are already 
subject to these regulations under State law. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action. EPA has also determined that 
this final action does not include a mandate that may result in 
estimated costs of $100 million or more to State, local, or tribal 
governments in the aggregate or to the private sector.
    The OMB has exempted this action from review under Executive Order 
12866.
    SIP approvals 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 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).
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from review under Executive Order 
12866.
    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.
    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 April 8, 1996. 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

    Air pollution control, Carbon monoxide, Environmental protection, 
Hydrocarbons, Incorporation by reference, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    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: September 11, 1995.
John P. DeVillars,
Regional Administrator, Region I.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

SUBPART OO--Rhode Island

    2. Section 52.2070 is amended by adding paragraph (c)(41) to read 
as follows:


Sec. 52.2070  Identification of plan.

* * * * * *
    (c) * * *
    (41) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on March 11, 1993.
    (i) Incorporation by reference.
    (A) Letter from the Rhode Island Department of Environmental 
Management dated March 5, 1993 submitting a revision to the Rhode 
Island State Implementation Plan.
    (B) Rhode Island's Air Pollution Control Regulation No. 9 entitled, 
``Air Pollution Control Permits,'' except for Chapter 9.13, Application 
for an Air Toxics Operating Permit; Chapter 9.14, Administrative 
Action: Air Toxics Operating Permits; and Chapter 9.15, Transfer of an 
Air Toxics Operating Permit; and Appendix A, Toxic Air Pollutants, 
Minimum Quantities. This regulation was effective in the State of Rhode 
Island on March 24, 1993.
    (ii) Additional materials.
    (A) A fact sheet on the proposed amendments to Regulation No. 9 
entitled, ``Approval to Construct, Install, Modify or Operate''.
    (B) Nonregulatory portions of the State submittal.
    3. In Sec. 52.2081 Table 52.2081 is amended by adding new entries 
to existing state citations for Chapter No. 9, to read as follows:


Sec. 52.208  EPA-approved EPA Rhode Island State regulations.

[[Page 4357]]


                                                                                                                                                        
                                                   Table 52.2081.--EPA-Approved Rules and Regulations                                                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                    Comments/Unapproved 
  State citation       Title/subject      Date adopted by State       Date approved by EPA       FR citation         52.2070             sections       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
No. 9.............  Air Pollution       March 4, 1993............  February 6, 1996.........  61 FR 4353.......  (c)(41)          Addition of NSR and   
                     Control Permits.                                                                                              other CAAA           
                                                                                                                                   requirements under   
                                                                                                                                   Amended Regulation   
                                                                                                                                   No. 9 except for     
                                                                                                                                   Chapters 9.13, 9.14, 
                                                                                                                                   9.15, and Appendix A.
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 96-2226 Filed 2-5-96; 8:45 am]
BILLING CODE 6560-50-P