[Federal Register Volume 64, Number 54 (Monday, March 22, 1999)]
[Proposed Rules]
[Pages 13753-13756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6899]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE011/021-1031; FRL-6313-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Reasonably Available Control Technology Requirements for 
Nitrogen Oxide Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing conditional limited approval of a State 
Implementation Plan (SIP) revision submitted by the State of Delaware. 
This revision requires major sources of nitrogen oxides 
(NOX) in the State of Delaware to implement reasonably 
available control technology (RACT). The intended effect of this action 
is to propose conditional limited approval of Delaware regulation for 
imposing RACT on major sources of NOX.

DATES: Comments must be received on or before April 21, 1999.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone & 
Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air Protection 
Division, Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket 
and Information Center, Environmental Protection Agency, 401 M. Street, 
S.W., Washington, D.C. 20460; and Delaware Department of Natural 
Resources & Environmental Control, Richardson & Robins, 89 Kings 
Highway, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, at the 
EPA Region III address above, or via e-mail at [email protected]. 
While information may be requested via e-mail, any comments must be 
submitted in writing to the EPA Region III address in accordance with 
the procedures provided above.

SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department 
of Natural Resources and Environmental Control (DNREC) submitted 
Regulation No. 12 CONTROL OF NITROGEN OXIDE EMISSIONS as a revision to 
its SIP. On November 26, 1993 (58 FR 62307), EPA published a Notice of 
Proposed Rulemaking (NPR) for the State of Delaware. The NPR proposed 
limited approval/limited disapproval of Regulation No. 12 pertaining to 
the control of NOX emissions at major sources in the state. 
On January 20, 1994, DNREC submitted a SIP revision which amended 
Regulation No. 12. EPA is hereby withdrawing the NPR published on 
November 26, 1993 and reproposing conditional limited approval of this 
Delaware SIP revision. This action is being taken under Section 110 of 
the Clean Air Act (CAA).

I. Background

    Pursuant to Part D, Sections 182 and 184 of the CAA, RACT is to be 
implemented at all major NOX sources by no later than May 
31, 1995. A major source of NOX is defined by the 
classification of the ozone nonattainment area in which it is located 
and/or whether it is located in the ozone transport region (OTR) 
established by the CAA. The entire State of Delaware is located in the 
OTR, and RACT applies statewide. New Castle and Kent Counties are part 
of the Philadelphia-Wilmington-Trenton ozone nonattainment area which 
is classified as severe. For New Castle and Kent Counties, CAA Section 
182 defines all stationary sources with the potential to emit 25 tons 
per year (TPY) or more of NOX as major and requires that 
RACT be implemented at such sources by no later than May 31, 1995. For 
Sussex County, CAA Section 184 defines all stationary sources with the 
potential to emit 100 TPY or more of NOX as major and 
requires that RACT be implemented at such sources by no later than May 
31, 1995.

II. Description of the Delaware Regulation No. 12 Imposing RACT on 
Major Sources of NOX

NOX Emission Standards Requirements

    Delaware Regulation No. 12, Section 3.2 contains specific emission 
limits for fuel burning equipment with a rated heat capacity of 100 
million BTU (MMBTU) per hour or greater. Gas fired face and tangential 
units are required to meet an emission limit of 0.20 lbs of 
NOX/MMBTU input. Oil or gas fired face and tangential units 
are required to meet an emission limit of 0.25 lbs of NOX/
MMBTU input. Oil or gas fired cyclones are required to meet an emission 
limit of 0.43 lbs of NOX/MMBTU input. Dry bottom coal fired 
face and tangential units are required to meet an emission limit of 
0.38 lbs of NOX/MMBTU input. Dry bottom coal fired stokers 
are required to meet an emission limit of 0.40 lbs of NOX/
MMBTU input. These numerical emission limits are supported by data 
gathered by the State and Territorial Air Pollution Program 
Administrators (STAPPA) and Association of Local Air Pollution Control 
Officials (ALAPCO).
    All emission limits are required to be met on a 24-hour rolling 
averaging period. For sources with a rated heat input capacity of 250 
MMBTU/hr or more compliance shall be determined using continuous 
emission monitoring systems (CEMs) approved by DNREC. For sources with 
a rated heat input of greater than 150 MMBTU/hr but less than 250 
MMBTU/hr compliance shall be determined using continuous emission 
monitoring systems (CEMs) approved by DNREC, or by an enhanced 
monitoring program approved by DNREC which identifies and correlates 
various operating parameters with NOX emission levels 
thorough source testing. These parameters will be used as surrogates to 
monitor NOX emissions.

[[Page 13754]]

Periodic source testing will be required to verify the validity of 
these surrogate parameters.
    Regulation No. 12, Section 3.5 also contains specific emission 
limits for gas turbines. The emission limit for gas fired simple or 
combined cycle gas turbines, corrected to 15% oxygen, is 42 parts per 
million (ppm). The emission limit for liquid fired simple or combined 
cycle gas turbines, corrected to 15% oxygen, is 88 ppm. Both emission 
standards require compliance to be demonstrated using a one hour 
averaging period based on CEM or an alternative method approved by 
DNREC and EPA.

NOX Technology Standards Requirements

    Regulation No. 12, Section 3.2 also includes control technology 
provisions for fuel burning equipment with a rated heat input capacity 
of 100 MMBTU/hr or greater, existing fuel burning equipment shall be 
presumed to be RACT if the owner or operator demonstrates that emission 
limitations specified in Section 3.2 (and described above) can be met. 
If the owner or operator does not make this demonstration, RACT shall 
be installed to meet the specified emission limits of Section 3.2. RACT 
for such sources will consist of combustion modification technology 
including either low NOX burner technology with low excess 
air (including Over Fire Air if technically feasible), or flue gas 
recirculation with low excess air. Regulation No. 12, in Section 3.3, 
requires that emissions from fuel burning equipment with a rated 
capacity of 50 MMBTU/hr or greater shall not exceed those achieved by 
installation of either low NOX burner technology with low 
excess air, or an equivalent control technology approved by DNREC and 
EPA. Section 3.3 requires emissions from fuel burning equipment with a 
rated capacity of less than 50 MMBTU/hr shall not exceed those achieved 
through an annual tune up performed by a qualified personnel. A log 
must be maintained of the tune ups performed on each unit.
    Regulation No. 12, Section 3.4 requires stationary internal 
combustion engines to limit their emissions to no more than those 
emitted using pre-ignition chamber combustion (also referred to as 
clean burn technology) for gas fired units and those emitted when using 
lean burn technology for diesel fired units, or equivalent control 
technology approved by DNREC and EPA.
    In Section 3.6, seasonal fuel switching shall be considered RACT 
for sources opting to switch to a lower NOX emitting fuel. 
Fuel switching is limited to the use of natural gas, liquid petroleum 
gas (LPG), or distillate oil.

Case-by-Case RACT Requirements

    Regulation No. 12, Section 3.8 covers all other major sources of 
NOX (i.e., those not subject to Sections 3.2, 3.3, 3.4, 3.5, 
or 3.6). These sources are to notify DNREC of their subject status, 
submit a proposal as what constitutes RACT, including technical and 
economic support documentation, and provide a schedule acceptable to 
DNREC for implementing RACT. The schedule for implementation of RACT 
must be by no later than May 31, 1995, and must include interim dates 
for the issuance of purchase orders, start and completion of 
modifications, and completion of compliance testing. The notification 
to DNREC, submittal of a RACT proposal and schedule must be made no 
later than November 15, 1993. DNREC will issue permits to these sources 
imposing RACT. Section 5 of Regulation No. 12 entitled, Alternative and 
Equivalent RACT Determination, also applies to these sources covered by 
Section 3.8. It specifies that DNREC will submit the RACT 
determinations made for such sources to EPA for approval as SIP 
revisions.

Exempted Sources

    Under Section 4 of Regulation No. 12, the following source types 
and sizes are exempt from RACT requirements:
    (1) Any fuel burning equipment used exclusively for providing 
residential comfort and hot water.
    (2) Any incinerator or thermal/catalytic oxidizer used exclusively 
for pollution control.
    (3) Any fuel burning equipment with a rated heat input capacity of 
less than 15 MMBTU/hour.
    (4) Any stationary internal combustion engine with a rated capacity 
of less than 450 hp.
    (5) Any source operating during the time period from the month of 
November to the end of March and operating with a capacity factor of 5% 
or less from April 1 to October 31.
    (6) Any fuel burning equipment, gas turbine, or internal combustion 
engine with an annual capacity factor of less than 5%.

Alternative and Equivalent RACT Requirements

    Section 5 of Regulation No. 12 is entitled Alternative and 
Equivalent RACT Determinations. It requires that any RACT 
determinations made under Section 3.8, and any other alternative or 
equivalent RACT measures (emission limits or technology requirements) 
determined under Sections 3.2, 3.3, 3.4, or 3.5, must be submitted by 
DNREC to EPA and approved as a SIP revisions. Section 5 also includes a 
specific provision to allow an owner or operator with more than one 
installation subject to Regulation No. 12 to use an alternative method 
of achieving an overall source-wide NOX emission reduction 
that is equivalent to the NOX emission reduction which would 
be achieved if each individual unit complied with the RACT standards in 
Section 3.

Compliance Certification, Record Keeping and Reporting Requirements

    Section 7 specifies the compliance certification, record keeping 
and reporting requirements for NOX sources subject to 
Regulation No. 12. Section 7.4 requires that applicable CEMS and 
associated data collection meet 40 CFR, Part 60, Appendix F. It also 
requires that source stack testing be conducted in accordance with test 
methods approved by DNREC and EPA.

III. EPA's Evaluation of Regulation No. 12 Imposing RACT for Major 
Sources of NOX

    EPA is proposing to approve the emission and control technology 
standards required by Delaware Regulation No. 12 as RACT for fuel 
burning sources. In the November 26, 1993 limited/limited disapproval 
of Regulation No. 12, EPA specifically disapproved the exemptions 
listed at Section 4. Since proposing limited approval/limited 
disapproval of Regulation No. 12, EPA has reevaluated its position 
since control requirements at very small units, such as those exempted 
by Section 4, are generally not reasonable considering technological 
and economic feasibility. A fuller explanation of this decision is 
given in the TSD for this proposed rulemaking. In light of this 
reevaluation, EPA no longer has the basis to propose disapproval of 
Regulation No. 12 based on the Section 4 exemptions.
    However, Regulation No. 12 does not include specific emission 
limitations or control technology requirements as RACT for other major 
sources of NOX in Delaware. Rather, Regulation No. 12 
contains procedures for RACT to be imposed on non-fuel burning sources 
on a case-by-case basis as alternative RACT determinations from the 
specific RACT requirements for fuel burning sources. These sources are 
not subject to specific, ``up-front'' (i.e. immediately ascertainable) 
emission limitations. Instead, the regulations establish a process for 
the State to review and approve individual RACT emission

[[Page 13755]]

limitations proposed by the sources, which are then to be submitted to 
EPA as SIP revisions.
    The CAA requires states to implement RACT on all major stationary 
sources. Process-oriented generic regulations, such as this, which do 
not include specific and ascertainable emission limitations for all 
major sources, do not by themselves provide standards for EPA to 
approve or disapprove as satisfying the definition of RACT. Therefore, 
the CAA's RACT requirements are satisfied only after the specific 
limitations imposed by the State on its major sources has been 
submitted to EPA as SIP revisions and approved by EPA as RACT for the 
subject sources.
    In a November 7, 1996 policy memo from Sally Shaver, Director, Air 
Quality Strategies and Standards Division of OAQPS, EPA issued a 
guidance for approving state generic RACT regulations, like Delaware's, 
provided certain criteria are met. This guidance does not exempt any 
major source from RACT requirements but instead provides a de minimis 
deferral of RACT only for the purposes of approving the state's generic 
RACT regulation. The de minimis deferral level is determined by using 
the 1990 NOX emissions, excluding the utility boiler 
NOX emissions. The remaining 1990 non-utility boiler 
emissions are then compared with the amount of non-utility 
NOX emissions that have yet to have RACT approved into the 
SIP. Generally, EPA expects that all utility boiler RACTs will be 
approved prior to application of this de minimis deferral policy and 
possible conversion of the generic RACT conditional approval to full 
approval. EPA does not expect to defer more than 5% of the emissions 
calculated in this manner in order to fully approve Delaware's generic 
NOX RACT regulation. In accordance with the November 1996 
policy, EPA is requiring that all utility boiler RACT determinations be 
approved into the SIP before the limited approval can be converted to 
full approval. Full approval of a generic RACT regulation under this 
policy does not change the State's statutory obligation to implement 
RACT for all major sources. No major NOX source is being 
exempted from RACT requirements through this policy or today's 
rulemaking.
    Because EPA has not received SIP revisions of source-specific RACT 
determinations for all major sources of NOX subject to RACT 
under the CAA, EPA can at best, according to the November 7, 1996 
policy memorandum, propose conditional limited approval of the 
NOX generic rule. In support of this proposed rulemaking, 
the State committed in a letter dated August 18, 1998 to submit, as SIP 
revisions, the case-by-case RACT determinations made under Section 5 of 
Regulation No. 12 within 12 months of EPA's final conditional approval 
of the generic rule. For this reason, EPA is proposing conditional 
limited approval of Regulation No. 12 as explained below.

Conditional Approval

    EPA is proposing conditional limited approval of Delaware's 
NOX RACT regulation. The proposed conditional approval is 
based upon DNREC's commitment to submit all the source-specific RACT 
determinations made under Section 5 of Regulation No. 12 as SIP 
revisions by a date certain that is no later than 12 months after the 
effective date of EPA's final conditional approval of Regulation No. 
12. Therefore, to fulfill the condition of this approval, DNREC must, 
by no later than 12 months after the effective date of EPA's final 
conditional approval of this NOX RACT regulation, certify 
that it has submitted all required case-by-case RACT determinations for 
all currently known subject sources. Once EPA has determined that 
Delaware has satisfied this condition, EPA shall remove the conditional 
nature of its approval and Regulation No. 12 will at that time retain 
limited approval status. Should Delaware fail to meet the condition as 
specified above, the final conditional limited approval of the Delaware 
Regulation No. 12 shall convert to a disapproval.

Limited Approval

    EPA is also proposing limited approval of Regulation No. 12 on the 
basis that it strengthens the Delaware SIP. Once EPA has approved all 
of the case-by-case RACT determinations submitted by DNREC in 
fulfillment of the conditional approval described above, the limited 
approval will convert to a full approval.
    EPA is soliciting public comments on the issues discussed in this 
notice. 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 document. A more detailed description of the 
state submittal and EPA's evaluation are included in a Technical 
Support Document (TSD) prepared in support of this rulemaking action. A 
copy of the TSD is available, upon request, from the EPA Regional 
office listed in the ADDRESSES section of this document.

Proposed Action

    EPA is proposing conditional limited approval of Delaware 
Regulation No. 12 imposing RACT on major sources of NOX , 
submitted on January 11, 1993 and January 20, 1994. EPA is proposing 
conditional limited approval of this SIP revision based upon the 
commitment made by DNREC to submit of all the case-by-case RACT 
determinations made under Section 5 of Regulation No. 12 for all 
subject within one year of the effective date of the final conditional 
limited approval of Regulation No. 12. Within one year of the effective 
date of the final conditional limited approval of Regulation No. 12, 
DNREC must provide a written statement certifying to EPA that to the 
best of its knowledge, it has submitted all of the SIP revisions 
described above.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, E.O. 12875 requires EPA to 
provide to OMB a description of the extent of EPA's prior consultation 
with representatives of affected state, local, and tribal governments, 
the nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997),

[[Page 13756]]

applies to any rule that EPA determines (1) is ``economically 
significant,'' as defined under Executive Order 12866, and (2) the 
environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
and safest risk that would have a disproportionate effect on children.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If EPA complies by 
consulting, E.O. 13084 requires EPA to provide to OMB, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, E. 
O. 13084 requires EPA to develop an effective process permitting 
elected and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.'' Today's rule does not significantly or uniquely affect 
the communities of Indian tribal governments. This action does not 
involve or impose any requirements that affect Indian Tribes. 
Accordingly, the requirements of section 3(b) of E.O. 13084 do not 
apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any subject to notice 
and comment rulemaking requirements unless the agency certifies 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 small governmental jurisdictions. 
This proposed rule will not have a significant impact on substantial 
number of small entities because SIP approvals under section 110 and 
301, 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 this action will not have a 
significant impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, 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). If conditional approval is converted to disapproval under 
section 110(k), based on the state's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new federal requirement. Therefore, EPA certifies 
that this proposed disapproval action does not have a significant 
impact on a substantial number of small entities because it does not 
remove existing requirements nor does it substitute a new federal 
requirement.

F. 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 to propose conditional limited approval of Delaware 
Regulation No. 12 for NOX RACT proposes to approve 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

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

    Dated: March 11, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 99-6899 Filed 3-19-99; 8:45 am]
BILLING CODE 6560-50-P