[Federal Register Volume 64, Number 37 (Thursday, February 25, 1999)]
[Rules and Regulations]
[Pages 9272-9278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4434]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DC017-2013a; FRL-6234-6]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; Reasonably Available Control Technology for
Oxides of Nitrogen
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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[[Page 9273]]
SUMMARY: EPA is conditionally approving a State Implementation Plan
(SIP) revision submitted by the District of Columbia. This revision
requires major sources of nitrogen oxides (NOX) in the
District to implement reasonably available control technology (RACT).
The effect of this action is to approve the SIP revision on the
condition that deficiencies in the regulation are corrected and that
the revised regulation is resubmitted within one year of this approval.
DATES: This direct final rule is effective on April 26, 1999 without
further notice, unless EPA receives adverse comment by March 29, 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: Written comments should be mailed to David L. Arnold, Chief,
Ozone and 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, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and the District of
Columbia Department of Public Health, Air Quality Division, 2100 Martin
Luther King Ave, S.E., Washington, DC 20020.
FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney at (215) 814-2092, or
by 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 above.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to section 182 of the Clean Air Act (CAA), ozone
nonattainment areas classified as serious or above are required to
implement RACT for all major sources of NOX by no later than
May 31, 1995. The major source size is determined by the classification
of the nonattainment area and whether it is located in the Ozone
Transport Region which was established by the CAA. Since the District
of Columbia is classified as a serious ozone nonattainment area, major
stationary sources are defined as those that emit or have the potential
to emit 50 tons or more of NOX per year.
On January 13, 1994, the District of Columbia Department of
Consumer and Regulatory Affairs (DCRA) submitted revisions to its State
Implementation Plan (SIP) that included a new regulation, Section 805,
of the District of Columbia Municipal Regulation (DCMR) No. 20,
Subtitle I entitled ``Reasonably Available Control Technology for Major
Stationary Sources of Oxides of Nitrogen.'' Section 805 requires
sources which emit or have the potential to emit 50 tons or more of
NOX per year to comply with RACT requirements by May 31,
1995. This action is being taken under section 110 of the Clean Air
Act.
II. Summary of the SIP Revision and EPA Evaluation
General Provisions
Subtitle I of 20 DCMR was amended to add a new section 805 that
applies to all sources in the District having the potential to emit
(PTE) 50 tons or more of NOX per year. Exemptions from the
requirements of section 805 are provided for sources that have a permit
from the District limiting the potential to emit to less than 50 tons
per year (TPY) and for emergency stand-by engines operated less than
500 hours per 12 month period. Section 805 contains presumptive
emission limits for certain source categories of NOX
including: stationary combustion turbines, fossil-fuel-fired steam-
generating units and asphalt concrete plants. Individual sources in
these categories with presumptive RACT emission limits may also apply
for alternative emission limits which reflect the application of
source-specific RACT. Approval of alternative determinations are
subject to approval by the District and EPA. All other major source
categories of NOX must have a RACT emission limit approved
by the District and EPA in an emissions control plan. All major sources
of NOX must submit an emissions control plan to the District
that describes the source and demonstrates how RACT will be
implemented. The District will conduct a public hearing for those
sources that apply for alternative emission limits and those not
subject to specific source category emission limits before final
approval is issued.
EPA Evaluation
EPA defines potential to emit in 40 CFR 51.165(a)(1)(iii) as the
maximum capacity of a source to emit unless federally enforceable
restrictions are imposed that would limit emissions. Subsection
805.1(c) in the District's rule exempts sources with a District permit
limiting PTE to less than 50 TPY, but does not also require sources to
have federally enforceable restrictions on PTE. In order to correct
this deficiency, the District must revise section 805.1(c) to allow
exemptions only where there are federally-enforceable restrictions that
limit NOX emissions to less than 50 TPY.
Source Category RACT
RACT for specific categories of NOX sources is
established in subsections 805.4, 805.5, 805.6 and 805.8. of DCMR No.
20, Subtitle 1 as listed in the table below, entitled ``RACT for
NOX Sources'':
RACT for NOX Sources
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Rated heat
Source category Fuel type capacity NOX emission limit Averaging period
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Simple Cycle Turbine............ Oil............... 100 75 ppmvd @ 15% O2 Not specified.
MMBTU/hr *. **.
Combustion Turbine (not Not specified..... 100 Exempt if operated N/A.
otherwise classified). MMBTU/hr. less than 500
hours/year.
Utility Boiler (not otherwise Fossil Fuel....... 20 No limit, RACT is Not specified.
specified). MMBTU/hr. defined as an
<50 MMBTU/hr annual combustion
adjustment.
Utility Boiler--tangential or Oil............... 50 0.3 lbs./MMBTU.... Calendar day.
face-fired. MMBTU/hr.
<100 MMBTU/hr.....
Utility Boiler--dry bottom: Coal.............. 100 0.43 lbs./MMBTU... Calendar day.
--tangential--face-fired-- MMBTU/hr.
stoker
Utility Boiler--tangential or Oil............... 100 0.25 lbs./MMBTU... Calendar day.
face-fired. MMBTU/hr.
[[Page 9274]]
Utility Boiler--tangential or Oil and Natural 100 0.25 lbs./MMBTU... Calendar day.
face-fired. Gas combined. MMBTU/hr.
Utility Boiler--tangential...... Natural Gas only.. 100 0.20 lbs./MMBTU... Calendar day.
MMBTU/hr.
Asphalt Concrete Plants......... N/A............... N/A............... 150 ppmvd NOX and Not specified.
500 ppmvd CO @ 7%
O2.
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* Million British Thermal Units (MMBTU) per hour (hr).
** Parts per million dry volume (ppmvd).
Subsection 805.4 establishes emission limits for stationary
combustion turbines. Subsection 805.4(b)(1) exempts combustion turbines
operated less than 500 hours per calendar year from meeting the
NOX RACT limits in subsection 805.4. Subsection 805.5
establishes presumptive RACT for fossil-fueled steam-generating units.
Utility boilers with a rated heat capacity of 100 MMBTU or greater must
demonstrate compliance with the applicable emission limit using
approved continuous emissions monitoring (CEM) technology pursuant to
40 CFR part 60, appendix B. All other utility boilers and turbines
subject to these source category requirements may choose between CEM
technology or alternative test methods approved by the District and
EPA.
Subsection 805.5(a) requires any fossil fuel fired steam-generating
units with an energy input capacity greater than or equal to 20 MMBTU
per hour must adjust the combustion process on a yearly basis to
minimize the total emissions representing the sum of the NOX
emission rate and one-half the carbon moxide (CO) emission rate
(subsection 805.8). Although sources subject to this requirement must
record the results of the combustion process adjustments, this
requirement will not result in an additional emission limitation. The
combustion process adjustment is the only RACT requirement for sources
with a rated heat capacity equal to or greater than 20 MMBTU but less
than 50 MMBTU.
Subsection 805.6 specifies an emission limit of 150 ppmvd
NOX and 500 ppmvd CO corrected to 7% oxygen for asphalt
concrete plants that emit 50 TPY or greater of NOX. Sources
may choose between CEM or test methods approved by the District and EPA
to demonstrate compliance. However, if a source chooses to use testing,
subsection 805.6(d)(2) requires that testing be conducted at least
annually and demonstrate that the NOX emission rate does not
exceed the rate specified in subsection 805.5.
EPA Evaluation
The emission limits for large utility boilers are supported by data
gathered by the State and Territorial Air Pollution Program
Administrators (STAPPA) and the Association of Local Air Pollution
Control Officials (ALAPCO). EPA has published RACT-level NOX
emission rates for selected types of utility boilers that are to be
applied to groups of boilers on an areawide, BTU-weighted basis
(November 25, 1992, 57 FR 55620, 55625). The District's emission limits
for individual source units are very similar to EPA's areawide averages
and should provide the same level of control recommended by EPA. The
emission limit for oil-fired combustion turbines is supported by data
gathered for existing turbines by the Northeast States for Coordinated
Air Use Management (NESCAUM) and is acceptable. EPA has not issued
guidance on reducing NOX emissions from asphalt concrete
plants. EPA finds that the emission limit established for asphalt
concrete plants in section 805.6 of the District's rule constitutes an
acceptable level of RACT.
The District has defined RACT for combustion sources equal to or
greater than 20 MMBTU/hour but less than 50 MMBTU/hour as combustion
adjustments to minimize the result of the following equation:
NOX emission rate + (0.5 * CO emission rate).
The technical basis for this equation is unsupported, particularly
with respect to the partial addition of the CO emission rate. In some
cases, a NOX emission limit for a combustion source is
accompanied by a CO limit due to the potential for increased CO
emissions from NOX controls. However, EPA cannot determine a
logical basis for considering the sum of the two emissions rates in the
manner required by the District. The District's definition of RACT also
fails to require any measurable degree of control that would
demonstrate that the technology used is technically or economically
appropriate. With respect to the method used to regulate combustion
adjustments, the District must replace the equation with a technically
justifiable method to regulate combustion adjustments. In order to
correct the deficiency in RACT requirements for sources with a heat
input of 20 MMBTU or greater but less than 50 MMBTU the District must
either (1) revise the regulation to provide specific numeric emission
limitations or appropriate and enforceable operating and maintenance
requirements for these sources or (2) revise the regulation to require
specific emission limitation(s) for each source or provide an adequate
justification that it is unreasonable for the source to comply with
RACT considering technological and economic feasibility.
Source-specific (Generic) RACT Provisions
All other NOX sources having the potential to emit 50
tons of NOX per year not listed on the table above must
submit an emission control plan to the District specifying a RACT
emission limit that will be met by May 31, 1995 (subsection 805.7). The
emission control plan must be approved by the District and approved as
a SIP revision by EPA. Sources must demonstrate compliance using either
CEM technology or testing approved by the District and EPA. Testing, if
chosen, must be conducted annually and must demonstrate that the
NOX emission rate does not exceed the emission rate
specified in subsection 805.5 for the applicable fossil fuel steam-
generating unit. Daily records must be maintained and kept for three
years to demonstrate compliance with the applicable emission rate.
Emissions that are subject to any other regulation in subtitle I of 20
DCMR or those that have emission limits approved in a federally
enforceable regulation as meeting Best Available Control Technology
(BACT) or Lowest Achievable Emission Rate (LAER) since January 1, 1990,
are exempt from these requirements.
EPA Evaluation
Under subsection 805.7, major NOX sources that are not
otherwise covered by presumptive emission limits under section 805 are
subject to a process to develop and submit individual source
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RACT determinations for the District's approval and submission to EPA
as SIP revisions. For all other major NOX sources or those
NOX sources electing not to comply with presumptive emission
requirements, the District provides the option of a source-specific
RACT determination through subsections 805.2(b) and 805.7. Subsections
805.2(b) and 805.7 specifically allow sources to have RACT approved via
the SIP revision process. EPA refers to this type of provision as a
``generic RACT'' provision in a state regulation. Specifically,
``generic RACT rules'' are defined as rules that merely require sources
to identify RACT-level controls which the state will later submit
through the SIP process.
EPA has long interpreted the RACT requirements of the Clean Air Act
to mean that states must adopt and submit regulations that include
emission limits as applicable to the subject sources. In other words, a
state would not fully meet the RACT requirement until it establishes
emission limits on all major sources. In a November 7, 1996 EPA policy
memorandum from Sally Shaver, Director, Air Quality Strategies and
Standards Division, to all Regional Air Division Directors, EPA
outlined the necessary prerequisites for approving a state's (or in
this case the District's) generic RACT regulation. In this memo, EPA
recognized that in most instances a generic RACT rule strengthens the
SIP to the extent that it sets dates by which sources must submit RACT
and comply with requirements.
The November 7, 1996 memo recommends that approval should be
granted to a state's generic rule as long as EPA believes that the
state has submitted all the source-specific RACT determinations and has
submitted a declaration that to the best of its knowledge, there are no
remaining unregulated sources. Full approval, however, should not be
granted until EPA has also determined through rulemaking that the
source-specific determinations also meet the RACT requirements.
In a letter dated December 16, 1998, the District of Columbia
Department of Health notified EPA that all major stationary sources of
NOX emissions in the District are subject to the presumptive
source category RACT limits of subsections 805.4, 805.5 or 805.6. In
other words, no major sources in the District have elected to apply for
alternative RACT determinations through the source-specific process.
Furthermore, the December 16, 1998 letter included a ``negative
declaration'' pertaining to the entire universe of all other categories
of major sources of NOX. In other words, the District has no
other major sources of NOX, such as incinerators,
reciprocating internal combustion engines, glass manufacturing, nitric/
adipic acid production, cement manufacturing and iron/steel
manufacturing plants, etc. The District has not and will not be
submitting any source-specific RACT determinations because the entire
of universe of major sources of NOX in the District are
subject to RACT emission limits under section 805. Because all major
sources of NOX in the District are subject to RACT, as
established in section 805, EPA finds that the requirements of sections
182 and 184 of the Clean Air Act have been met regardless of the
generic provisions of section 805.
Exemptions
Subsections 805.7(a)(1) and (2) allow major sources of
NOX that are subject to any other regulation in subtitle I
of 20 DCMR or those that have emission limits approved in a federally
enforceable regulation as meeting Best Available Control Technology
(BACT) or Lowest Achievable Emission Rate (LAER) since January 1, 1990,
to be excluded when calculating potential to emit to determine major
source applicability. Subtitle I embodies all of the District's air
pollution control regulations. Subsections 805.7(a)(1) and (2) allow
all NOX sources subject to any other regulation in subtitle
I of 20 DCMR or sources receiving LAER determinations since January 1,
1990 to be declared RACT without EPA approval via the SIP process.
EPA Evaluation
These provisions are unacceptable because EPA cannot delegate the
responsibility of approving RACT determinations to a state or other
regulatory authority such as the District. The CAA requires that EPA
make a determination as to whether a major source or source category's
requirement constitutes RACT. EPA cannot agree to LAER or any other
determination under subtitle I of 20 DCMR as RACT since those
determinations have not been before the EPA for review. Therefore,
subsections 805.7(a)(1) and (2) are inconsistent with the CAA and the
District must correct this deficiency.
Monitoring, Recordkeeping and Reporting
For sources subject to the presumptive limits found in section 805,
subsection 805.2(a) requires such sources to demonstrate compliance
with the applicable emission limits using continuous emission monitors
according to 40 CFR part 60, appendix B, or through other test methods
approved by the District and EPA. For combustion turbines and utility
boilers, compliance will be determined using an emission monitoring
system to continuously monitor and record the NOX emission
rate and demonstrate that the NOX emission rate does not
exceed the applicable allowable NOX emission rate
(subsections 805.4(d) and 805.5(e)). For sources electing alternative
emission limits as RACT, subsections 805.2(c) and 805.7(d) require all
sources to maintain continuous compliance through installation of a
continuous emissions monitoring system or other methods consistent with
the operational parameters and limits set forth in any permit or
certificate approved by the District and EPA.
EPA Evaluation
Specific recordkeeping requirements necessary to determine
compliance are not contained in the regulation. Subsection 805.3(c)(4)
requires all emission control plans to include recordkeeping procedures
for air pollution control equipment used to reduce NOX
emissions. However, since the emission control plans for sources
subject to source category limits in subsections 805.4 through 805.6
are not required to be submitted as SIP revisions they are not made
federally enforceable through this regulation. EPA believes that this
deficiency is resolved through Chapter 5 of subtitle I of the
District's regulations. This SIP-approved Chapter requires stationary
sources with emissions greater than 25 TPY to conduct testing and
maintain adequate records for compliance with applicable requirements.
Sources subject to the emission limits for asphalt concrete plants
that choose to perform testing, as opposed to CEM, are required to meet
additional emission limits that are unidentifiable and technically
infeasible. Subsection 805.6(c)(2)(C) requires testing to demonstrate
that the emission rate does not exceed the applicable emission rate in
subsection 805.5. The latter section establishes presumptive RACT
technology and specific emission limits for fossil-fuel steam-
generating units. The District's rule should require that asphalt
concrete sources subject to the emission limits in subsection 805.6 to
conduct testing to demonstrate compliance with emission limits for
asphalt concrete sources established in 805.6.
Similarly, in subsection 805.7(d)(2)(C), sources subject to case-
by-case RACT determinations that conduct testing (as opposed to
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continuous emission monitoring) are required to demonstrate compliance
with the NOX emission rate specified in subsection 805.5.
The reference to subsection 805.5 is incorrect in that this section
establishes emission limits specifically for fossil-fuel steam-
generating units. Subsection 805.7(d)(2)(C) should require affected
sources to conduct testing to demonstrate compliance with the limits
contained in an approved emission control plan that has been submitted
and approved by EPA as a SIP revision.
EPA has evaluated section 805 of the District's regulation for
consistency with the CAA and EPA regulations, and has found, as noted
above, certain deficiencies which result in enforceability problems and
in the regulation of a smaller population of sources than required by
the CAA. A more detailed description of the District's submittal and
EPA's evaluation are included in the 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.
III. Final Action
EPA is conditionally approving section 805, subtitle I of 20 DCMR,
the requirements to implement RACT on major sources of NOX,
submitted by the District of Columbia into the District's SIP. In a
letter dated December 16, 1998, the District of Columbia Department of
Health requested EPA to propose conditional approval of the District's
NOX RACT SIP and committed to correct deficiencies
identified in today's rulemaking and resubmit such revisions to EPA as
a SIP submittal.
EPA is conditionally approving section 805 of the District of
Columbia's NOX RACT regulation, pursuant to section
110(k)(4) of the CAA on the basis that section 805 strengthens the SIP
by establishing compliance dates and RACT limits on major categories of
NOX sources. The District must correct the deficiencies
enumerated below within twelve months of the effective date of today's
rulemaking. If the District fails to revise and resubmit the regulation
within one year of this conditional approval the conditional approval
will convert to a disapproval.
1. The District must revise subsection 805.1(c) to allow exemptions
only where there are federally-enforceable restrictions that limit
NOX emissions to less than 50 tons per year.
2. With respect to the method used to regulate combustion
adjustments in subsection 805.8, the District must replace the equation
with a technically justifiable method to regulate combustion
adjustments. In order to correct the deficiency in RACT requirements
for sources with a heat input of 20 MMBTU or greater but less than 50
MMBTU, the District must either (1) revise the regulation to provide
specific numeric emission limits or appropriate and enforceable
operating and maintenance requirements for these sources or (2) revise
the regulation to require specific emission limit(s) for each source or
provide an adequate justification that it is unreasonable for the
source to comply with RACT considering technological and economic
feasibility.
3. The District must remove the exclusions found in subsections
805.7(a)(1) and (2) for the purposes of determining potential
emissions.
4. The District must correct subsection 805.7(d)(2)(C) to require
affected sources to conduct testing to demonstrate compliance with the
limitations contained in an approved emission control plan that has
been submitted and approved by EPA as a SIP revision.
5. The District must correct subsection 805.6(c)(2)(C) to require
that asphalt concrete sources subject to the emission limits in
subsection 805.6 conduct testing to demonstrate compliance with
emission limits for asphalt concrete sources.
If the District fails to meet the conditions of this approval
action, the EPA Regional Administrator will make a finding, by letter,
that the conditional approval is converted to a disapproval and the
clock for imposition of sanctions under section 170(a) of the CAA will
start as of the date of the letter. Subsequently, a document will be
published in the Federal Register announcing that the SIP revision has
been disapproved.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to conditionally approve the District's NOX
RACT SIP revision if adverse comments are filed. This rule will be
effective on April 26, 1999 without further notice unless EPA receives
adverse comment by March 29, 1999. If EPA receives adverse comment, EPA
will publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. EPA will address all public
comments in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
III. 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. 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
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 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 final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined
[[Page 9277]]
by E.O. 12866, and it does not address an environmental health or
safety 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, 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 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 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 conditional approvals of
SIP submittals under section 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 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 the conditional approval is converted to a 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, the EPA certifies
that this 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
annual 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 promulgated does not
include a Federal mandate that may result in estimated annual 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 to conditionally approve the District of
Columbia's NOX RACT regulations in section 805, subtitle I
of 20 DCMR, must be filed in the United States Court of Appeals for the
appropriate circuit by April 26, 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements.
Dated: February 12, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
40 CFR part 52 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 J--District of Columbia
2. Section 52.473 is amended by adding paragraph (c) to read as
follows:
Sec. 52.473 Conditional approval.
* * * * *
(c) The District of Columbia's January 13, 1994 SIP submittal of
section 805 of the District of Columbia Municipal Regulation (DCMR) No.
20, Subtitle I, ``Reasonably Available Control Technology (RACT) for
Major Stationary Sources of Oxides of Nitrogen (NOX),'' is
conditionally approved based on certain contingencies. The condition
for approval is to revise section 805 and resubmit the section as a SIP
revision
[[Page 9278]]
within one year of April 26, 1999, according to the following:
(1) The District must revise subsection 805.1(c) to allow
exemptions only where there are federally-enforceable restrictions that
limit NOX emissions to less than 50 tons per year.
(2) With respect to the method used to regulate combustion
adjustments in subsection 805.8, the District must replace the equation
with a technically justifiable method to regulate combustion
adjustments. In order to correct the deficiency in RACT requirements
for sources with a heat input of 20 MMBTU or greater but less than 50
MMBTU the District must either revise the regulation to provide
specific numeric emission limits or appropriate and enforceable
operating and maintenance requirements for these sources, or revise the
regulation to require specific emission limit(s) for each source or
provide an adequate justification that it is unreasonable for the
source to comply with RACT considering technological and economic
feasibility.
(3) The District must remove the exclusions found in subsections
805.7(a)(1) and (2) for the purposes of determining potential
emissions.
(4) The District must correct subsection 805.7(d)(2)(C) to require
affected sources to conduct testing to demonstrate compliance with the
limits contained in an approved emission control plan that has been
submitted and approved by EPA as a SIP revision.
(5) The District must correct subsection 805.6(c)(2)(C) to require
that asphalt concrete sources subject to the emission limits in
subsection 805.6 conduct testing to demonstrate compliance with
emission limits for asphalt concrete sources.
[FR Doc. 99-4434 Filed 2-24-99; 8:45 am]
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