[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Rules and Regulations]
[Pages 29567-29570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13026]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA-67-7202a; A-1-FRL-6346-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts and Rhode Island; Nitrogen Oxides Budget and Allowance 
Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the States of Rhode Island (RI) and Massachusetts (MA). 
This action consists of approving regulations in RI and MA which are 
part of a regional nitrogen oxide (NOX) reduction program 
designed to reduce stationary source NOX emissions during 
the ozone season in the Ozone Transport Region (OTR) of the 
northeastern United States. (Section 184(a) of the Clean Air Act 
defines an ozone transport region in the northeastern United States 
comprised of the States of Connecticut, Delaware, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, Vermont, and the Consolidated metropolitan Statistical Area 
that includes the District of Columbia.) Additionally, this action 
involves the approval of a source specific order which establishes 
alternative NOX reasonably available control technology 
(RACT) requirements for four boilers at the Rhode Island Economic 
Development Corporation (RIEDC). These SIP revisions were submitted 
pursuant to section 110 of the Clean Air Act (CAA).

DATES: This direct final rule is effective on August 2, 1999 without 
further notice, unless EPA receives adverse comment by July 2, 1999. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, One Congress Street, Suite 1100, Boston, 
MA 02114-2023. Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office Ecosystem Protection, U.S. Environmental 
Protection Agency, Region I, One Congress Street, 11th floor, Boston, 
MA; at the Division of Air and Hazardous Materials, Rhode Island 
Department of Environmental Management, 291 Promenade Street, 
Providence, RI 02908-5767, and at the Massachusetts Division of Air 
Quality Control, Department of Environmental Protection, One Winter 
Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, (617) 918-1048 or at 
[email protected].

SUPPLEMENTARY INFORMATION: On December 19, 1997, the Massachusetts (MA) 
Department of Environmental Protection (DEP) submitted to EPA a request 
to revise its State Implementation Plan (SIP). The request proposes to 
add 310 CMR 7.27, ``NOX Allowance Program'' to the SIP. 
Similarly, on January 20, 1999, the Rhode Island (RI) Department of 
Environmental Management (DEM) submitted Regulation No. 38, ``Nitrogen 
Oxides Allowance Program,'' and Consent Agreement No. 96-04-AP for the 
Rhode Island Economic Development Corporation (RIEDC) as revisions to 
the Rhode Island SIP. The two regulations are part of a regional 
NOX reduction program designed to reduce stationary source 
NOX emissions during the ozone season in the OTR. The 
consent agreement no. 96-04-AP establishes alternative NOX 
reasonably available control technology (RACT) requirements for four 
boilers at the RIEDC facility in North Kingstown, RI.

I. Summary of SIP Revisions

NOX RACT Consent Agreement No. 96-04-AP for RIEDC

    On September 2, 1997, EPA approved Regulation No. 27, ``Control of 
Nitrogen Oxides Emissions'' as meeting the NOX RACT 
requirements of sections 182(b) and (c) of the Clean Air Act and 
revised the Rhode Island SIP accordingly (see 62 FR 46202). Section 
27.4.8 allows RI DEM to relax the RACT requirements on a case-by-case 
basis, upon approval by EPA. The NOX RACT Consent Agreement 
No. 96-04-AP for RIEDC represents a case-specific alternative RACT 
determination as provided for under section 27.4.8.

Ozone Transport Region Nitrogen Oxides Allowance Program in 
Massachusetts and Rhode Island

    Sections 182(b)(1)(A) and 182(c)(2)(A) of the CAA require States 
with areas classified as ``moderate,'' ``serious,'' and ``severe'' 
ozone nonattainment to submit revisions to their applicable SIPs to 
provide for specific annual reductions in emissions of volatile organic 
compounds (VOCs) and oxides of nitrogen (NOX) as necessary 
to attain the national primary ambient air quality standard for ozone. 
Additionally, section 110 of the Act requires that such plans be 
subject to public notice, comment, and hearing procedures and that the 
States adopt and submit the plans to EPA.
    As part of MA's and RI's efforts to meet these requirements, the 
States have submitted regulations which impose statewide caps on 
NOX emissions from certain industrial sectors (e.g., 
electric utility boilers, industrial boilers, combustion turbines, 
etc.). RI's Regulation No. 38 and MA's Regulation 310 CMR 7.27 are 
based closely on a model rule which was developed using the EPA's 
economic incentive program rules (67 FR 16690, April 7, 1994) as the 
general regulatory framework. This model rule was developed by the 
Northeast States for Coordinated Air Use Management (NESCAUM) and the 
Mid-Atlantic Regional Air Management Association (MARAMA) and is 
entitled, ``NESCAUM/MARAMA NOX Budget Model Rule,'' issued 
on May 1, 1996. The basis for the model rule was a memorandum of 
understanding entitled, ``Memorandum of Understanding Among the States 
of the Ozone Transport Commission on Development of a Regional Strategy 
Concerning the Control of Stationary Source Nitrogen Oxide Emissions,'' 
dated September 27, 1994, otherwise known as the OTC MOU.
    RI's and MA's NOX budget regulations set statewide, five 
month (May 1 through September 30) NOX ``budgets,'' or mass 
emission limits in tons, to reduce the aggregate emissions from large 
fossil fuel fired combustion equipment by as much as 75% from a 1990 
baseline. In order to achieve the aggregate NOX reductions, 
the regulations proportion NOX ``allowances'' (in tons) to 
the facilities with emission units subject to the program. The 
regulations require each owner or operator of each unit to hold, by 
December 31 of each year, at least as many NOX allowances in 
their compliance account as total tons of NOX emitted during 
the previous five month ozone season. Under these regulations, 
NOX allowances may be bought or sold and unused allowances 
may be banked from one year to another in a central registry 
administered by EPA. The program requires NOX emissions to 
be monitored by either a continuous emission monitoring system (CEMS) 
or equivalent, although the use of alternatives is allowed where 
approved

[[Page 29568]]

by the State and EPA. The program will begin on May 1, 1999. Starting 
in 2002 and occurring every three years after, an audit of the program 
will be conducted to ensure that the program is providing the expected 
reductions.
    Additional information concerning EPA's evaluation of the RI and MA 
NOX allowance program regulations is detailed in two 
memoranda: ``Technical Support Document for Massachusetts'' Regulation 
310 CMR 7.27, ``NOX Allowance Program,'' dated December 16, 
1998, and ``Technical Support Document for Rhode Island's Regulation 
No. 38, ``Nitrogen Oxides Allowance Program'' and NOX RACT 
Consent Agreement No. 96-04-AP for Rhode Island Economic Development 
Corporation,'' dated February 2, 1999. Copies of those documents are 
available, upon request, from the EPA Regional Office listed in the 
ADDRESSES section of this document.

II. Issues

    An issue associated with the approval of the Rhode Island and 
Massachusetts regulations is that the regulations currently contain 
NOX emissions budget and allocation schemes only for 1999 
through the ozone season of 2002, i.e., ``phase II'' of the OTC 
NOX Budget program. However, the OTC MOU obliges 
Massachusetts and Rhode Island to require its allowance program sources 
to make specific additional NOX reductions by May 1, 2003 
and continuing thereafter, i.e., ``phase III.'' Additionally, in May 
1998, Massachusetts proposed an attainment demonstration for the 
western MA nonattainment area which relies on the NOX 
reductions associated with the OTC program in 2003 and beyond to 
achieve attainment with the one hour ozone standard.
    Section 7.27 (3)(b) of the MA regulation and section 38.2.1(b) of 
the RI regulation are currently reserved for the purpose of setting the 
statewide allocation for 2003 and beyond. In their current form, 
Regulation No. 38 and 310 CMR 7.27 are approvable for 1999, 2000, 2001, 
and 2002. However, in order to meet the interstate MOU and for MA to 
have a credible attainment demonstration, both MA and RI will need to 
amend their regulations to establish the NOX caps in those 
States during 2003 and beyond.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This action will be effective August 2, 1999 
without further notice unless the Agency receives adverse comments by 
July 2, 1999.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on August 2, 1999, and no 
further action will be taken on the proposed rule.

III. Final Action

    EPA is approving Massachusetts' regulation 310 CMR 7.27, 
``NOX Allowance Program,'' Rhode Island's Regulation No. 38, 
``Nitrogen oxides Allowance Program,'' and Rhode Island's Consent 
Agreement No. 96-04-AP. 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.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget 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

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have 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 rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks and 
is not economically significant under E.O. 12866.

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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other

[[Page 29569]]

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

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule 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 final rule will not have a significant impact on a 
substantial number of small entities because 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 
create any new requirements, I certify that this action will not have a 
significant economic 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 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).

F. Unfunded Mandates

    Under sections 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 approval action promulgated 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.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    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 August 2, 1999. 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).) EPA encourages 
interested parties to comment in response to the proposed rule rather 
than petition for judicial review, unless the objection arises after 
the comment period allowed for in the proposal.

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.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of Massachusetts and Rhode Island was approved by 
the Director of the Federal Register on July 1, 1982.

    Dated: May 6, 1999.
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 et seq.

Subpart W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(118) to read 
as follows:


Sec. 52.1120  Identification of plan

* * * * * *
    (c) * * *
    (118) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on December 19, 
1997.
    (i) Incorporation by reference.
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated December 19, 1997 submitting a revision to the 
Massachusetts State Implementation Plan.
    (B) Regulation 310 CMR 7.27, NOX Allowance Program, 
effective on June 27,1997.
    (ii) Additional materials.
    (A) Letter from the Massachusetts Department of Environmental 
Protection dated March 9, 1998 clarifying the program implementation 
process.
    3. In Sec. 52.1167 Table 52.1167 is amended by adding a new state 
citation for regulation 310 CMR 7.27, ``NOX Allowance 
Program'' to read as follows:


Sec. 52.1167--EPA-approved  Massachusetts State regulations.

* * * * *


Table 52.1167.  EPA-Approved Massachusetts Regulations

[[Page 29570]]



 
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                                      Date                          Federal                         Comments/
State citation    Title/Subject    submitted    Date approved       Register       52.1120(c)      unapproved
                                    by State        by EPA          citation                        sections
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*                  *                  *                  *                  *                  *
                                                *
310 CMR 7.27..  NOX Allowance        12/19/97  6/2/99.........  [Insert FR       (c)(118).....  Approval of NOx
                 Program.                                        citation from                   cap and
                                                                 published                       allowance
                                                                 date].                          trading
                                                                                                 regulations
 
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                                                *
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Subpart OO--Rhode Island

    4. Section 52.2070 is amended by adding paragraph (c)(55) to read 
as follows:


Sec. 52.2070  Identification of plan

* * * * *
    (c) * * *
    (55) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on February 13, 
1998 and January 20, 1999 which define alternative NOX RACT 
requirements and impose seasonal limitations on the emissions of 
nitrogen oxides at certain major stationary sources in Rhode Island.
    (i) Incorporation by reference.
    (A) Letters from the Rhode Island Department of Environmental 
Management, dated February 13, 1998 and January 20, 1999 submitting 
revisions to the Rhode Island State Implementation Plan.
    (B) Regulation number 38, ``Nitrogen Oxides Allowance Program,'' as 
adopted on May 21, 1998, submitted on effective on June 10, 1998.
    (C) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Rhode Island Economic 
Development Corporation, file no. 96-04-AP, adopted and effective on 
September 2, 1997.
    5. In Sec. 52.2081, Table 52.2081 is amended by revising the state 
citation for Regulation No. 27 and by adding a new state citation for 
Regulation No. 38, ``Nitrogen Oxides Allowance Program'' to read as 
follows:


Sec. 52.2081--EPA--approved  Rhode Island state regulations.

* * * * *

                               Table 52.2081.--EPA-Approved Rules and Regulations
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                                     Date                                                           Comments/
State citation    Title/subject   adopted by  Date approved by    FR citation       52.2070        Unapproved
                                     State           EPA                                            sections
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
No. 27........  Control of            9/2/97  6/2/99..........  [Insert FR       (c)(55)......  Establishes
                 Nitrogen Oxides                                 citation from                   alternative NOx
                 Emissions.                                      published                       RACT for Rhode
                                                                 date].                          Island Economic
                                                                                                 Development
                                                                                                 Corporation in
                                                                                                 North
                                                                                                 Kingstown, RI
 
*                  *                  *                  *                  *                  *
                                                        *
No. 38........  Nitrogen Oxides      5/21/98  6/2/99..........  [Insert FR       (c)(55)......  Adds ozone
                 Allowance                                       citation from                   season NOx
                 Program.                                        published                       emission
                                                                 date].                          limitations at
                                                                                                 certain
                                                                                                 stationary
                                                                                                 sources.
 
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                                                        *
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[FR Doc. 99-13026 Filed 6-1-99; 8:45 am]
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