[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Rules and Regulations]
[Pages 29563-29567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13028]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RI-39-6989a; A-1-FRL-6346-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Rhode Island; Amendments to Air Pollution Control Regulation Number 9

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Rhode Island. This revision makes amendments 
to 3 portions of Rhode Island's Air Pollution Control Regulation No. 9. 
The intended effect of this action is to modify the definition of a 
point source for purposes of new source review pre-construction 
permitting, to eliminate the requirement for monitoring of total 
suspended particulates (TSP) and insert requirements for addressing 
particles with a mean aerodynamic diameter of 10 microns or less 
(PM10), and to clarify the definition of Best Available Control 
Technology (BACT). This action is being taken in accordance with the 
Clean Air Act.

DATES: This direct final rule is effective on August 2, 1999, without 
further notice, unless EPA receives relevant adverse comments 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, U.S. Environmental Protection Agency, 
Region I, One Congress Street, Suite 1100 (CAA), 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; Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, S.W., (LE-131), Washington, D.C. 20460; and the 
Division of Air and Hazardous Materials, Department of Environmental 
Management, 291 Promenade Street, Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT: Ian D. Cohen, (617) 918-1655.

SUPPLEMENTARY INFORMATION: On August 9, 1996, the State of Rhode Island 
submitted a formal revision to its State Implementation Plan (SIP). The 
SIP revision consists of amendments to Rhode Island's Air Pollution 
Control Regulation No. 9, which governs pre-construction new source 
review (NSR) permitting for new and modified sources of air pollution. 
These changes will revise the State Implementation plan to reflect 
revisions in EPA rules and policy.

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I. Background

    The proposed SIP Revision will make changes to 3 portions of Rhode 
Island's Rule: it will remove the ``dual source'' definition for 
stationary sources, and will replace it with the ``plantwide'' 
definition; it will make PM10 the standard for particulate matter; and 
it will include all Federal and State rules in the definition of BACT.

A. Federal Regulatory Framework

Dual Source Definition
    On August 7, 1980 (45 FR 52676), EPA promulgated a rule which 
defined a ``source'' as being a ``building, structure, facility, or 
installation.'' This has become known as the ``dual source'' 
definition. Rhode Island has patterned its current definition of a 
source after this definition. On October 14, 1981 (46 FR 50766), EPA 
revised its NSR regulations to allow adoption of a ``plantwide'' 
definition. This allows the entire installation to be considered a 
single ``source'' under the NSR rules.
Particulates
    On July 1, 1987, (52 FR 24634) EPA promulgated revised National 
Ambient Air Quality Standards (NAAQS) for particulate matter. This 
changed the standard for particulates from TSP to particulates with a 
mean aerodynamic diameter of 10 microns or less, PM10. On June 3, 1993, 
EPA promulgated a further revision (59 FR 31636) which replaced TSP 
with PM10 in the Prevention of Significant Deterioration (PSD) program, 
and the NSR program for attainment area pollutants. The effect of these 
rules was to eliminate the need to measure TSP as a pollutant. With 
these amendments, Rhode Island removes all remaining references to TSP, 
and specifies PM10 as the standard for particulate matter.
BACT
    Best Available Control Technology (BACT) is defined as an emissions 
limitation based on the maximum degree of reduction for each air 
pollutant which would be emitted from a proposed new stationary source 
or modification to an existing stationary source. BACT is decided on a 
case-by-case basis. The federal definition of BACT requires that BACT 
limits be no less stringent than any emission standard promulgated 
under sections 111 and 112 of the Act. Rhode Island will increase the 
number of regulations which will be considered to determine the minimum 
BACT requirement. This change will make BACT more stringent.
Rhode Island's Revision
    Rhode Island's Revision makes several changes to Air Pollution 
Control Regulation Number 9, Air Pollution Control Permits. Revisions 
to sections 9.1.7, 9.1.18, and 9.5.1 delete the word ``installation'' 
from the definition of ``stationary source.'' Revisions to sections 
9.1.23, 9.5.1, and 9.5.2 delete all reference to TSP and make PM10 
emissions the criterion used to evaluate net emissions increases for 
particulate matter. A revision to section 9.1.6 amends the definition 
of BACT. A public hearing was held on July 17, 1996. There were no 
adverse comments.
Dual Source Definition
    Rhode Island's SIP revision will allow all pollutant emitting 
activities at a single facility, under common control, and which belong 
to the same industrial grouping to be counted together when computing 
the changes in emissions for purposes of new source review.
    This action will give sources flexibility by allowing them to make 
modifications which may increase pollution from one emission unit at a 
plant, but result in a decrease in the pollutant on a plantwide basis. 
Through the process of ``netting,'' in which reductions of emissions at 
one site within a plant can be credited against increases in emissions 
at another site, unnecessary new source review actions can be 
eliminated. This change will free time and resources for those actions 
which would result in overall increases of a pollutant, and therefore 
require more careful new source review.
    Pursuant to section 193 of the Clean Air Act, the ``general savings 
clause,'' EPA must determine whether this revision to Rhode Island's 
NSR Program ensures equivalent or greater reductions of nonattainment 
area pollutants. In conducting this analysis, EPA examined the impact 
of all revisions to Rhode Island's SIP since 1990. EPA's analysis found 
that Rhode Island's SIP revision will ensure equivalent or greater 
emissions reductions as compared with the existing Rhode Island SIP.
    To determine the impact of Rhode Island's change from the dual 
source definition to the plantwide definition, EPA considered the 
number of sources effected by the change. Typically, the change in the 
source definition from dual source to plantwide may allow more sources 
to ``net out'' of NSR. However, the NSR rules contain numerous 
applicability provisions that all work together in determining if a new 
source is subject to NSR or if it can ``net out.'' EPA concludes that, 
while the revision may allow more sources to net out of NSR, EPA could 
not determine the number of sources directly effected by the revision.
    In addition, EPA found that from 1990 through 1997, no new sources 
triggered Rhode Island's current NSR applicability requirements for 
major modifications. Considering the small number of sources effected 
by Rhode Island's permitting program, EPA concludes that relaxing one 
element of Rhode Island NSR applicability provisions would result in an 
insignificant increase in emissions, if any.
    To offset the relatively small increase in emissions from the 
revision, EPA considered other revisions submitted by Rhode Island 
since 1990 that strengthen its SIP. EPA notes that as part of the 
plantwide definition revision submittal, Rhode Island is revising its 
BACT rules. The BACT revision clarifies the minimum control standards 
that all new major and minor source must implement. Rhode Island's BACT 
revision will ensure that BACT controls and procedures meet high 
standards of performance and result in greater emission reductions for 
all new sources throughout Rhode Island.
    EPA concludes that the overall effect of Rhode Island's revised SIP 
will ensure reductions equivalent to those obtained in the existing 
SIP. EPA understands that the plantwide definition is a relaxation of 
the SIP that may cause a slight increase in emissions. However, EPA 
believes that Rhode Island's revision clarifying the minimum 
requirements for the State's BACT provisions strengthens the SIP and 
provides emission decreases that more than offset the emission 
increases from the new source definition revision. Therefore, EPA finds 
that approving Rhode Island's nonattainment area NSR revisions is 
consistent with the Act.
Particulates
    Prior to 1987, the NAAQS for particulates was evaluated using TSP. 
States maintained monitoring networks to track levels of TSP. In 1987, 
EPA revised the NAAQS for particulates to measure PM10. This was in 
response to evidence that the smaller particles were responsible for 
the majority of the health problems which had been linked to 
particulates. In 1993, EPA made PM10 the standard for PSD. This 
revision eliminated the need for requirements for TSP monitors. Rhode 
Island still maintained some TSP monitors, since their state 
regulations still required TSP measurements for NSR purposes. The 
changes Rhode Island is making will eliminate those TSP requirements 
and make PM10 the

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sole criterion for particulates. In the future, Rhode Island will have 
to amend these rules to incorporate EPA's recently promulgated standard 
for yet finer particles, so-called PM2.5. This change can be 
accomplished by a future SIP revision.
BACT
    Rhode Island's current regulations define BACT so that it must be 
no less stringent than the emission standards found in 40 CFR parts 60 
and 61. 40 CFR part 60 includes performance standards for new 
stationary sources; 40 CFR part 61 includes requirements from hazardous 
air pollutants. The revised rule will require that BACT be no less 
stringent than all applicable State and Federal standards. This change 
will make BACT more stringent by adding the new post-1990 hazardous air 
pollution requirements from 40 CFR part 63 and any further State 
controls to the floor of BACT. By making BACT more stringent, Rhode 
Island will require sources to consider a wider range of technologies 
and, when BACT is required, utilize the strongest available technology.

II. Final Action

    EPA is approving amendments to Air Pollution Control Regulation 
Number 9. 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 relevant adverse comments be filed. This action will be 
effective August 2, 1999 without further notice unless the Agency 
receives relevant adverse comments by July 2, 1999.
    If the EPA receives such comments, then EPA will publish a notice 
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 on the proposed rule. Any 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.
    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.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 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.

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 
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. 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

[[Page 29566]]

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, Best available control technology, Air 
pollution control, Incorporation by reference, Intergovernmental 
relations, Monitoring requirements, New Source Review, Particulate 
matter, Prevention of significant deterioration, Reporting and 
recordkeeping requirements.

    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: 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 OO--Rhode Island

    2. Section 52.2070 is amended by adding paragraph (c)(54) to read 
as follows:


Sec. 52.2070  Identification of plan

* * * * * *
    (c) * * *
    (54) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on.
    (i) Incorporation by reference.
    (A) Letter from the Rhode Island Department of Environmental 
Management dated 9 August 1996 submitting a revision to the Rhode 
Island State Implementation Plan.
    (B) Changes to Air Pollution Control Regulation Number 9.
    For the State of Rhode Island.
    3. In Sec. 52.2081 Table 52.2081 is amended by adding new entries 
to existing state citations for Air Pollution Control Regulation No 9:


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
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*                  *                  *                  *                  *                  *
                                                        *
No. 9..........  Air Pollution         7/30/96  6/2/99..........  [Insert FR        (c)(54).......             5
                  Control Permits.                                 citation from
                                                                   published date].
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 99-13028 Filed 6-1-99; 8:45 am]
BILLING CODE 6560-50-P