[Federal Register Volume 62, Number 105 (Monday, June 2, 1997)]
[Proposed Rules]
[Pages 29682-29684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14303]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX NO. DC032-2005; FRL-5833-1]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; New Source Review Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the District of Columbia. This revision 
establishes and requires the major new source review (NSR) permit 
program. The intended

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effect of this action is to propose approval of the NSR program which 
requires permitting for the construction of major new or major modified 
sources pursuant to the requirements of the Clean Air Act (CAA). This 
action is being taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before July 2, 1997.

ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permits 
Program Section, Mailcode 3AT23, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; District of Columbia 
Department of Consumer and Regulatory Affairs, 2100 Martin Luther King 
Ave, S.E., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 566-2068, or by e-
mail at [email protected]. (Although additional information 
may be requested via e-mail, comments must be submitted in writing to 
the above EPA address.)

SUPPLEMENTARY INFORMATION: On May 2, 1997, the District of Columbia, 
Department of Consumer and Regulatory Affairs, submitted a revision to 
its State Implementation Plan (SIP) for major new source review (NSR). 
This revision requires major new and modified sources of volatile 
organic compounds (VOCs) and nitrogen oxides (NOX) to meet 
certain new source requirements if they are being located in a 
designated nonattainment area, if they are expected to emit these 
pollutants in quantities that would significantly impact a 
nonattainment area, or if they are being located an the ozone transport 
region. These requirements include installing Lowest Achievable 
Emission Rate (LAER) technology and obtaining emission offsets.

Background

    The SIP revision consists of regulations applicable to new source 
permitting in District of Columbia Municipal Regulations (DCMR) Title 
20, sections 199, 200, 201, 202, 204, 206.1 (pertaining to public 
notice), and 299 (reference to applicability of definitions in section 
199).
    The District of Columbia (the District) is part of the Washington, 
DC ozone nonattainment area, which includes portions of Maryland and 
Virginia. Washington, DC is a nonattainment area classified as serious 
for ozone, and as such, is required under the Clean Air Act to 
implement certain requirements including those pertaining to the 
permitting of major new and major modified sources. Title I, Part D of 
the Clean Air Act (including sections 171, 172, 173, 182, 187, and 189) 
requires that States incorporate into the applicable SIP an acceptable 
permitting program for the preconstruction review of new or modified 
major stationary sources in nonattainment areas. In addition, the 1990 
Amendments create certain new requirements for States. The amended Act 
required that areas such as the District submit adopted regulations 
applying to the permitting of those major sources no later than 
November 15, 1992. In addition, section 184 of the amended Act requires 
that areas located in the ozone transport region (OTR), of which the 
District is a part, submit a NSR program applicable to major new and 
major modified sources. The Act defines major sources in serious ozone 
nonattainment areas as those with the potential to emit greater than or 
equal to 50 tons per year (TPY) of VOC or NOX emissions. 
Therefore, although section 184 requires that areas in the OTR define 
major sources as those with the potential to emit greater than or equal 
to 50 TPY VOC or 100 TPY NOX emissions, the more stringent 
major source threshold of 50 TPY for serious ozone nonattainment areas 
supersedes the OTR requirement.
    On July 6, 1993, EPA made a finding that the District had failed to 
submit the required NSR regulations, which started the 18 month 
sanctions clock under section 179 of the Act. On October 22, 1993, the 
District submitted the required regulations, which were subsequently 
determined by EPA to be complete and the sanctions clock for failure to 
submit were stopped. Due to multiple deficiencies in the submitted 
regulations, EPA disapproved the SIP submittal in a direct final 
rulemaking on March 24, 1995 (Volume 60 FR 15483). This action once 
again started a sanctions clock. On November 23, 1996, the 2:1 emission 
offset sanction, which is the first of two mandatory sanctions, was 
imposed pursuant to Section 179 of the Act. The second mandatory 
sanction clock, the withholding of federal funds for new highway 
projects, will expire on May 24, 1997. An interim rulemaking to stay 
both phases of sanctions, 2:1 emission offsets and restriction of 
highway funds, is being published in the final rules section of this 
Federal Register concurrently with this proposed rule.

Summary of SIP Revision

    The District of Columbia submittal includes regulations for the 
construction permitting program for major new and major modified 
sources required under section 182 of the Act. Although sections 200, 
201, 202, and 204 of the District of Columbia Municipal Regulations 
(DCMR) apply to both major and minor sources and to sources wishing to 
obtain construction or operating permits, it is the intent of this SIP 
submittal to meet only the requirement to submit a major new source 
permitting program under section 182 of the CAA. Therefore, only those 
requirements in sections 200, 201, 202, and 204 applicable to major new 
or major modified construction permitting are being approved into the 
SIP at this time by this rulemaking action. The District of Columbia's 
current SIP regulation for minor sources remain in effect. Section 
206.1 contains public notice and opportunity requirements for NSR 
permitting. Section 299 is an administrative section stating that the 
definitions in section 199 apply to Chapter 2. Section 199 contains the 
definitions applicable to all of the District's regulations. Those 
definitions contained in section 199 that apply to the permitting 
programs and which are the subject of this rulemaking action, are: 
``actual emissions,'' ``allowable emissions,'' ``begin actual 
construction,'' ``commence,'' ``complete,'' ``emissions unit,'' 
``federally enforceable,'' ``major modification,'' ``major stationary 
source,'' ``modification,'' ``necessary preconstruction approvals or 
permits,'' ``net emissions increase,'' ``new source,'' ``potential to 
emit,'' ``shutdown,'' ``significant,'' and ``stationary source.''

EPA Analysis

    Section 182 of the Act requires all States to submit regulations at 
least as stringent as the nonattainment NSR provisions found in 
sections 172 and 173 of the Act and the implementing regulations found 
in 40 CFR part 51. EPA's review of this material indicates that the 
revision corrects the deficiencies discussed in the EPA disapproval, 
(60 FR 15483, March 24, 1995), and meets the criteria for a NSR 
program.
    The two most significant deficiencies cited in the disapproval were 
lack of public comment requirements and the existence of a temporary 
permit provision which might circumvent NSR permitting. The regulations 
were

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amended to correct these deficiencies (District Register, May 9, 1997). 
Public review and comment procedures were added to the DCMR (Title 20, 
section 206.1 and 206.2). The temporary operating permit provision 
(DCMR, Title 20, 200.3) was modified to require that operation of the 
source is in accordance with the requirements of the Chapter; this 
meets the requirements of the Act.
    The 1995 disapproval also cites the requirement to update all state 
regulations to reflect changes in the Clean Air Act by the 1990 
amendments in sections 172 and 173 and other relevant sections. 
Amendments to the DCMR section 204 required for the 1990 amendments 
provisions have been included in this SIP revision. Section 204 of the 
DCMR has also been amended to correct the remaining issues mentioned in 
EPA's March 25, 1995 disapproval. Details of the provisions and 
corrections are found in the Technical Support Document (TSD) for this 
rulemaking. The TSD is available from the EPA Regional Office listed in 
the ADDRESSES section of this notice.
    EPA is proposing to approve the District SIP revision for NSR, 
which was submitted on May 2, 1997. EPA is soliciting public comments 
on the issues discussed in this document or on other relevant matters. 
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 notice.

Proposed Action

    EPA is proposing to approve the NSR program for new major sources 
and major modifications in the District of Columbia. 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.

Administrative Requirements

A. Executive Order 12866

    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.

B. Regulatory Flexibility Act

    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 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, the 
Administrator certifies 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 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).

C. 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 approves 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.
    The Administrator's decision to approve or disapprove the 
District's NSR SIP revision will be based on whether it meets the 
requirements of section 110(a)(2)(A)-(K) and part D of the Clean Air 
Act, as amended, and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

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

    Dated: May 21, 1997.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 97-14303 Filed 5-30-97; 8:45 am]
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