[Federal Register Volume 61, Number 184 (Friday, September 20, 1996)]
[Rules and Regulations]
[Pages 49413-49414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24045]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NC-43-1-9618a; FRL-5609-1]


Approval and Promulgation of State Implementation Plan, North 
Carolina: Approval of Cape Industries, Air Permit No. 130R17

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On August 17, 1989, the State of North Carolina issued to Cape 
Industries, located in Wilmington, New Hanover County, North Carolina, 
air permit number 130R11, which set the sulfur dioxide emission limit 
at 2.3 pounds per million British Thermal Units (BTU). The State then 
submitted this permit to EPA on September 21, 1989, for approval as a 
revision to the State implementation plan (SIP). Air permit number 
130R11 expired on October 1, 1991, and was subsequently replaced by the 
current Cape Industries air permit number 130R17 on December 29, 1994. 
Upon review of the permit, EPA finds that the designated limit for Cape 
Industries is adequate to protect the ambient standard and approves 
this permit.

DATES: This action is effective November 19, 1996 unless adverse or 
critical comments are received by October 21, 1996. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments on this action should be addressed to Mr. 
Randy Terry at the EPA Regional Office listed below.
    Copies of the documents relative to this action are available for 
public inspection during normal business hours at the following 
locations. The interested persons wanting to examine these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), US 
Environmental Protection Agency, 443, 401 M Street, SW, Washington DC 
20460
Environmental Protection Agency, Region IV Air Programs Branch, 345 
Courtland Street NE, Atlanta, Georgia 30365
North Carolina Department of Environment, Health, and Natural 
Resources, Division of Environmental Management, P.O. Box 29535, 
Raleigh, North Carolina 27626-0535

FOR FURTHER INFORMATION CONTACT: Mr. Randy Terry, Regulatory Planning 
and Development Section, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region IV Environmental Protection Agency, 345 
Courtland Street NE, Atlanta, Georgia 30365. The telephone number is 
404/347-3555, ext. 4212.

SUPPLEMENTARY INFORMATION: On December 7, 1982 (47 FR 54934), EPA 
announced approval of a revised sulfur dioxide (SO2) emission limit for 
most fuel-burning sources in North Carolina. This revision raised the 
emission limit of SO2 from 1.6 pounds per million BTU to 2.3 
pounds per million BTU. Cape Industries, located in Wilmington, New 
Hanover County, North Carolina, was included in this rulemaking, but 
was not allowed to increase it's emission level until such time that 
appropriate conditions could be applied to ensure that the ambient 
standard was not violated. These conditions included the issuance of an 
air permit. On August 17, 1989, North Carolina Environmental Management 
Commission issued air permit no. 130R11 to Cape Industries. On 
September 21, 1989, the State of North Carolina, through the North 
Carolina Department of Environment, Health and Natural Resources 
submitted this permit to EPA for approval as a revision to the North 
Carolina SIP regarding the SO2 emissions limitation for Cape 
Industries. In a letter dated November 25, 1991, EPA responded to the 
Cape Industries submittal with several comments concerning the 
enforceability of the permit. EPA determined North Carolina's emission 
standards did not contain the specific test method, the test run 
duration, and the averaging time for each emission standard, and was 
therefore unenforceable. EPA also stated that the permit should be 
revised to include the opacity limits of each emission point. EPA 
directed North Carolina to address these sections before the permit 
could be approved. On March 2, 1994, North Carolina submitted a letter 
to EPA which effectively responded to all of EPA's concerns and 
demonstrated that the permit contains adequate recordkeeping and 
testing requirements.
    However, in May, 1994, Cape Industries submitted a modeling 
protocol to EPA requesting a permit modification to remove current fuel 
use and boiler firing limitations which were used as permit conditions 
to avoid an earlier PSD applicability issue. Since the proposed 
modifications would affect the previous permit conditions which were 
used as a basis to demonstrate compliance with the Sulfur Dioxide SIP, 
Cape Industries also submitted this protocol as a Sulfur Dioxide SIP 
revision. This Modeling protocol was not approveable and on July 28, 
1994, EPA responded with a letter outlining the areas that must be 
addressed. On March 14, 1996, in response to the July 28, 1994, EPA 
letter, Cape Industries officially withdrew their request for the 
permit modification. During this time the original Cape Industries air 
permit expired and air permit number 130R17 was issued.

Final Action

    EPA is approving Cape Industries' air permit No. 130R17 submitted 
on August 9, 1996, for incorporation into the North Carolina SIP. The 
EPA is publishing this action without prior proposal because the EPA 
views this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, the EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
October 21, 1996 unless, within 30 days of its publication, adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by 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 November 19, 1996.
    The EPA has reviewed this request for revision of the Federally-
approved SIP

[[Page 49414]]

for conformance with the provisions of the 1990 Amendments enacted on 
November 15, 1990. The EPA has determined that this action conforms 
with those requirements irrespective of the fact that the submittal 
preceded the date of enactment.
    Under section 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C. 
7607(b)(1), petitions for judicial review of this action must be filed 
in the United States Court of Appeals for the appropriate circuit by 
November 19, 1996. Filing a petition for reconsideration by the 
Administrator of this final rule does not affect the finality of this 
rule for 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) of the CAA, 42 U.S.C. 7607 (b)(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 E.O. 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any SIP. Each request for revision to the SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    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 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. section 
7410(a)(2).

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. section 804(2).

Unfunded Mandates

    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 duties. To the extent that the rules being approved 
by this action will impose any mandate upon the State, local or tribal 
governments either as the owner or operator of a source or as a 
regulator, or would impose any mandate upon the private sector. EPA's 
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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

    Dated: June 6, 1996.
Michael V. Peyton,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, 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 II--North Carolina

    2. Section 52.1770, is amended by adding paragraph (c)(91) to read 
as follows:


Sec. 52.1770  Identification of plan.

* * * * *
    (91) The North Carolina Department of Environment, Health and 
Natural Resources submitted revisions to the North Carolina State 
Implementation Plan on September 21, 1989. These revisions incorporate 
SO2 limits and permit conditions for Cape Industries.
    (i) Incorporation by reference.
    (A) Permit for Cape Industries (air permit no. 130R17) which was 
issued by the Environmental Management Commission on December 29, 1994.
    (ii) Additional material--none.

[FR Doc. 96-24045 Filed 9-19-96; 8:45 am]
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