[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11731-11735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6601]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-18-01-7262a; A-1-FRL-5427-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Rhode Island: Emissions Caps

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of Rhode Island. This revision approves 
Air Pollution Control Act (APC) 29.3 entitled ``Emissions Caps,'' into 
the Rhode Island SIP. The intended effect of this action is to approve 
a SIP revision by the State of Rhode Island to incorporate regulations 
for the issuance of federally enforceable operating permits which 
restrict sources' potential to emit criteria

[[Page 11732]]
pollutants such that sources can avoid reasonably available control 
technology (RACT), title V operating permit requirements, or otherwise 
applicable requirements. This action also extends federal 
enforceability to limits on hazardous air pollutants (HAPs). This 
action is being taken in accordance with sections 110 and 112(l) of the 
Clean Air Act.

DATES: This action is effective May 21, 1996, unless notice is received 
April 22, 1996, 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 Dave Fierra Director, Office of 
Ecosystem Protection, U.S. Environmental Protection Agency, Region I, 
JFK Federal Building, Boston, MA 02203-2211. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours, by appointment at the Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, Region I, One 
Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and 
Information Center, U.S. Environmental Protection Agency, 401 M Street, 
S.W., (LE-131), Washington, D.C. 20460; and Division of Air and 
Hazardous Materials Division of Rhode Island Department of 
Environmental Management, 291 Promenade Street, Providence, Rhode 
Island 02908.

FOR FURTHER INFORMATION CONTACT: Ida Gagnon (617) 565-3500.

SUPPLEMENTARY INFORMATION: On May 22, 1995, the State of Rhode Island 
submitted a formal revision to its State Implementation Plan (SIP) to 
incorporate regulations for the issuance of federally enforceable 
operating permits. The revision consists of the addition of APC 23.9 
entitled ``Emissions Caps.'' The State of Rhode Island adopted these 
regulations in order to have the authority to issue federally 
enforceable operating permits under its SIP. In order to extend the 
federal enforceability of state operating permits to hazardous air 
pollutants (HAPs), EPA is also approving this regulation pursuant to 
section 112(l) of the Act.

Summary of SIP Revision

    The State of Rhode Island's principal purpose for adopting the 
operating permit regulations of APC 29.3 is to have a federally 
enforceable means of expeditiously restricting potential emissions such 
that sources can avoid RACT, title V operating permit requirements, or 
otherwise applicable requirements, as well as reduce annual compliance 
fees. The operating permit provisions in title V of the Clean Air Act 
Amendments of 1990 have created additional interest in mechanisms for 
limiting sources' potential to emit, thereby allowing the sources to 
avoid being defined as ``major'' with respect to title V operating 
permit programs. A key mechanism for such limitations is the use of 
federally enforceable state operating permits (FESOPs). The EPA issued 
general guidance on FESOPs in the Federal Register on June 28, 1989 (54 
FR 27274). This rule making evaluates whether Rhode Island has 
satisfied the requirements for this type of federally enforceable 
limitation on potential to emit. Each of the five criteria, as 
specified in the Federal Register of June 28, 1989, for approval of a 
state's program for the issuance of FESOPs under its SIP and how the 
state's submittal satisfies those criteria are presented below:
    Criterion 1. The state's operating permit program (i.e. the 
regulations or other administrative framework describing how such 
permits are issued) must be submitted to and approved by EPA as a SIP 
revision: On May 22, 1995, the State of Rhode Island submitted an 
administratively and technically complete SIP revision request to EPA 
consisting of Air Pollution Control Regulation No. 29.3 ``Emissions 
Caps.'' That SIP revision is the subject of this rule making action.
    Criterion 2. The SIP revision must impose a legal obligation that 
operating permit holders adhere to the terms and limitations of such 
permits (or subsequent revisions of the permit made in accordance with 
the approved operating permit program) and provide that permits which 
do not conform to the operating permit program requirements and the 
requirements of EPA's underlying regulations may be deemed not 
``federally enforceable'' by EPA: APC 29.3.5(b) requires sources to 
obtain permits to operate and authorizes Rhode Island to establish 
terms and conditions in these permits that are federally enforceable to 
``ensure that emissions are limited by quantifiable and enforceable 
means.'' Additionally, 29.3.9 requires that no source may operate after 
the time it is required to submit a timely and complete application for 
an operating permit under APC 29, except in compliance with an 
emissions cap or an operating permit.
    Criterion 3. The state operating permit program must require that 
all emission limitations, controls, and other requirements imposed by 
such permits will be at least as stringent as any applicable 
limitations and requirements contained in the SIP, or enforceable under 
the SIP, and that the program may not issue permits that waive, or make 
less stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``federally enforceable'' 
(e.g. standards established under Section 111 and 112 of the Clean Air 
Act): APC 29.3.5 contains regulatory provisions which state the 
emissions cap issued by the Division will be at least as stringent as 
any applicable requirement and the emissions cap will not waive or make 
less stringent any applicable requirement. Applicable requirement is 
defined in APC 29 to include all SIP requirements.
    Criterion 4. The limitations, controls, and requirements of the 
state's operating permits must be permanent, quantifiable, and 
otherwise enforceable as a practical matter: APC 29.3.5 and 29.3.7 
contain regulatory provisions which satisfy this criterion. Emission 
cap permits must be renewed every five years, but remain enforceable 
pending DEM's action and timely renewal application. In addition, 
subparagraphs 29.3.5(b) and (c) require that permit restrictions 
contain combinations of production and/or operational limitations to 
ensure emissions are limited by quantifiable and enforceable means, 
including keeping sufficient records to show limitations are followed.
    Criterion 5. The state operating permits must be issued subject to 
public participation. This means that the state agrees, as part of its 
program, to provide EPA and the public with timely notice of the 
proposal and issuance of such permits, and to provide EPA, on a timely 
basis, with a copy of each proposed (or draft) and final permit 
intended to be ``federally enforceable.'' This process must also 
provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permits: APC 29.3.6 
contains provisions that the Division will either deny the emissions 
cap or give public notice of its intention to issue an emissions cap. 
The general public will be notified of DEM's intention to issue an 
emissions cap by publishing a notice in a newspaper. The applicant, 
EPA, city or town executives where a source is located, and persons who 
request to be on a mailing list will be sent a copy of the notice.
    The State of Rhode Island has also requested approval of its 
Emissions Caps program under section 112(l) of the Act for the purpose 
of creating federally enforceable limitations on the potential to emit 
of HAPs. Approval under section 112(l) is necessary

[[Page 11733]]
because the SIP approval discussed above only extends to criteria 
pollutants for which EPA has established national ambient air quality 
standards under section 109 of the Act. Federally enforceable limits on 
criteria pollutants or their precursors (i.e., VOCs or PM-10) may have 
the incidental effect of limiting certain HAPs listed pursuant to 
section 112(b).1 As a legal matter, no additional program approval 
by the EPA is required beyond SIP approval under section 110 in order 
for these criteria pollutant limits to be recognized as federally 
enforceable. However, section 112 of the Act provides the underlying 
authority for controlling all HAP emissions, regardless of their 
relationship to criteria pollutant controls.

    \1\ The EPA issued guidance on January 25, 1995 addressing the 
technical aspects of how these criteria pollutant limits may be 
recognized for purposes of limiting a source's potential to emit of 
HAP to below section 112 major source levels.
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    The EPA has determined that the five approval criteria for 
approving FESOP programs into the SIP, as specified in the June 28, 
1989 Federal Register notice, are also appropriate for evaluating and 
approving the programs under section 112(l). The June 28, 1989 notice 
does not address HAPs because it was written prior to the 1990 
amendments to section 112. The June 28, 1989 criteria are basic 
principles which are not unique to criteria pollutants. Therefore, the 
five criteria discussed above are applicable to FESOP approvals under 
section 112(l) as well as under section 110.
    In addition to meeting the criteria in the June 28, 1989 notice, a 
FESOP program for HAPs must meet the statutory criteria for approval 
under section 112(l)(5). Section 112(l) allows the EPA to approve a 
program only if the program: (1) Contains adequate authority to assure 
compliance with any section 112 standard or requirement; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with section 112 requirements; and (4) is otherwise 
likely to satisfy the objectives of the Act.
    The EPA plans to codify the approval criteria for programs limiting 
potential to emit HAPs, in Subpart E of Part 63, the regulations 
promulgated to implement section 112(l) of the Act. (See 58 FR 62262, 
November 26, 1993.) The EPA currently anticipates that these regulatory 
criteria, as they apply to FESOP programs, will mirror those set forth 
in the June 28, 1989 notice. FESOP programs approved pursuant to 
section 112(l) prior to the planned Subpart E revisions will be 
approved as meeting the criteria in EPA's June, 1989 notice. Therefore, 
further approval actions for those programs will not be necessary.
    The EPA believes it has authority under section 112(l) to approve 
programs to limit potential to emit HAPs directly under section 112(l) 
prior to this revision to Subpart E. EPA is therefore approving Rhode 
Island's Emissions Caps program now so that Rhode Island may begin to 
issue federally enforceable synthetic minor permits as soon as 
possible.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, the EPA believes Rhode Island's Emissions Caps program contains 
adequate authority to assure compliance with section 112 requirements 
since the third criterion of the June 28, 1989 notice is met, that is, 
the program in APC 29.3.5 states that all requirements in the Emissions 
Caps program must be at least as stringent as all other applicable 
federally enforceable requirements. In connection with EPA's review of 
Rhode Island's title V operating permit program, EPA has also conducted 
an extensive analysis of Rhode Island's underlying authority to enforce 
HAP limits. Please note that a source which receives an Emissions Caps 
permit may still need a title V operating permit under APC 29 if EPA 
promulgates a MACT standard which requires non-major sources to obtain 
title V permits.
    Regarding the requirement for adequate resources, the EPA believes 
Rhode Island has demonstrated that it can provide for adequate 
resources to support the Emissions Caps program through an annual 
compliance/assurance fee and a permit fee. EPA believes this mechanism 
will be sufficient to provide for adequate resources to implement this 
program. For more information regarding the fees program, refer to the 
Technical Support Document.
    The EPA also believes that Rhode Island's Emissions Cap program 
provides for an expeditious schedule which assures compliance with 
section 112 requirements. This program will be used to allow a source 
to establish a voluntary limit on potential to emit to avoid being 
subject to a CAA requirement applicable on a particular date. Nothing 
in Rhode Island's program would allow a source to avoid or delay 
compliance with a CAA requirement if it fails to obtain an appropriate 
federally enforceable limit by the relevant deadline. Finally, the EPA 
believes it is consistent with the intent of section 112 and the Act 
for States to provide a mechanism through which sources may avoid 
classification as a major source by obtaining a federally enforceable 
limit on potential to emit. EPA has long recognized federally-
enforceable emissions or operational limits as a means to stay below 
major source thresholds under the Act. This approval merely applies the 
same principles to another set of pollutants and regulatory 
requirements under the Act.
    The EPA's review of this SIP revision indicates the criteria for 
approval as provided in the June 28, 1989 Federal Register notice (54 
FR 27282) and in section 112(l)(5) of the Act have been satisfied.
    During the development of this rule, EPA and Rhode Island have been 
asked whether permits the State has issued pursuant to these 
regulations prior to today's action approving this program into the SIP 
are nevertheless federally enforceable. In the preamble to the 
regulations that EPA promulgated on June 28, 1989 (54 FR 27274), which 
set forth the five criteria outlined above for a federally enforceable 
operating permit program, EPA indicated that it would ``consult with 
States on methods by which existing operating permits could be made 
federally enforceable under a subsequently approved State operating 
permits program.'' 54 FR at 27284. The preamble went on to discuss 
options for securing EPA approval of previously issued permits. As EPA 
concluded in its approval of the Illinois FESOP program (57 FR at 59931 
(Dec. 17, 1992)), these options were not intended to be a complete list 
of alternatives. To avoid burdensome requirements to reprocess each 
previously issued permit, EPA will use the same approach announced in 
that Illinois approval for determining whether such permits are 
federally enforceable and for ratifying their status as enforceable 
under the approved SIP.
    EPA today finds the existing Rhode Island regulations to be 
consistent with federal requirements. If the State followed its own 
procedures, each permit issued under this regulation was subject to 
public notice and comment, with notice to EPA. Moreover, the regulation 
requires each permit to be enforceable as a practical matter. 
Therefore, EPA will consider all previously issued operating permits 
which were processed in a manner consistent with the State regulations 
federally enforceable with the promulgation of this rule, provided that 
any permits the State wishes to make federally enforceable are 
submitted to EPA and are accompanied by documentation that the 
procedures approved today were followed in issuing the permit.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse

[[Page 11734]]
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 
May 21, 1996, unless adverse or critical comments are received by April 
22, 1996.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by simultaneously publishing a subsequent document 
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 May 21, 1996.

Final Action

    EPA is approving APC 29.3 ``Emissions Caps'' effective in the State 
of Rhode Island on May 18, 1995 under sections 110 and 112(l) of the 
CAAA.
    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 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, section 112(l), 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 by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. A future document will inform the general public of 
these tables.
    The OMB has exempted this 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 May 21, 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).)

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 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the action promulgated today does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
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: January 30, 1996.
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)(45) to read 
as follows:


Sec. 52.2070  Identification of plan.

* * * * *
    (c) * * *
    (45) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on May 15, 1995
    (i) Incorporation by reference.
    (A) Letter from the Rhode Island Department of Environmental 
Protection dated May 15, 1995 submitting a revision to the Rhode Island 
State Implementation Plan.
    (B) Air Pollution Control Regulation 29.3 ``Emissions Caps''; 
effective in the State of Rhode Island on May 18, 1995.
    (ii) Additional materials.
    (A) Non-regulatory portions of the submittal.
    3. In Sec. 52.2081 Table 52.2081 is amended by adding new entry for 
state citation APC 29.3 to read as follows:


Sec. 52.2081  EPA-Approved Rhode Island State regulations.

* * * * *

[[Page 11735]]


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                                                                                                                                     52.2070 (45)       
                                                           Date                                                              ---------------------------
   State citation              Title/subject            adopted by      Date approved by EPA      Federal Register citation       Comments/unapproved   
                                                          State                                                                        sections         
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                *                   *                   *                   *                   *                   *                   *               
No. 29.3............  EMISSIONS......................      4/28/95  March 22, 1996.............  [Insert FR citation from     This rule limits a        
                                                                                                  published date].             source's potential to    
                                                                                                                               emit, therefore avoiding 
                                                                                                                               RACT, title V operating  
                                                                                                                               permits.                 
                *                   *                   *                   *                   *                   *                   *               
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[FR Doc. 96-6601 Filed 3-21-96; 8:45 am]
BILLING CODE 6560-50-P