[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Rules and Regulations]
[Pages 46202-46207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23228]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5883-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Rhode Island; Reasonably Available Control Technology for Nitrogen 
Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Rhode Island. This revision establishes and 
requires Reasonably Available Control Technology (RACT) at stationary 
sources of nitrogen oxides (NO<INF>X</INF>). The intended effect of 
this action is to approve regulatory provisions and source specific 
consent agreements which require major stationary sources of 
NO<INF>X</INF> to reduce their emissions statewide in accordance with 
requirements of the Clean Air Act.

DATES: This action is effective November 3, 1997, unless adverse or 
critical comments are submitted and received by October 2, 1997. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection (mail code CAA), U.S. Environmental 
Protection Agency, Region I, JFK Federal Building, Boston, MA 02203-
2211. Copies of the documents relevant to this action are available for 
public inspection during normal business hours, by appointment at the 
Office of Ecosystem Protection, U.S. Environmental Protection Agency, 
Region I, One Congress Street, 11th floor, Boston, MA; as well as the 
Division of Air and Hazardous Materials, Rhode Island Department of 
Environmental Management, 291 Promenade Street, Providence, RI 02908-
5767.

FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, Environmental 
Engineer, Air Quality Planning Unit (CAQ), U.S. EPA, Region I, JFK 
Federal Building, Boston, MA 02203-2211; (617) 565-2773; 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="82d0e3f2f2acd1f6e7f4e7c2c7d2c3cfc3cbceacc7d2c3acc5cdd4ac">[email protected]</a>

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act (CAA) requires that States develop Reasonably 
Available Control Technology (RACT) regulations for all major 
stationary sources of nitrogen oxides (NO<INF>X</INF>) in areas which 
have been classified as ``moderate,'' ``serious,'' ``severe,'' and 
``extreme'' ozone nonattainment areas, and in all areas of the Ozone 
Transport Region (OTR). EPA has defined RACT as the lowest emission 
limitation that a particular source is capable of meeting by the 
application of control technology that is reasonably available 
considering technological and economic feasibility (44 FR 53762; 
September 17, 1979). This requirement is established by sections 
182(b)(2), 182(f), and 184(b) of the CAA.
    The CAA NO<INF>X</INF> requirements are further described by EPA in 
a notice entitled ``State Implementation Plans; Nitrogen Oxides 
Supplement to the General Preamble; Clean Air Act Amendments of 1990 
Implementation of Title I; Proposed Rule,'' published November 25, 1992 
(57 FR 55620). The November 25, 1992 document (i.e., the NO<INF>X</INF> 
Supplement) should be referred to for more detailed information on 
NO<INF>X</INF> requirements. Additional guidance memoranda which have 
been released by EPA, such as those included in the ``NO<INF>X</INF> 
Policy Document for the Clean Air Act of 1990,'' (EPA-452/R-96-005, 
March 1996), should also be referred to for more information on 
NO<INF>X</INF> requirements.
    CAA section 182(b)(2) requires States to require implementation of 
RACT with respect to all major sources of volatile organic compounds 
(VOC) in moderate ozone nonattainment areas. This RACT requirement also 
applies to all major sources in ozone nonattainment areas with higher 
than moderate nonattainment classifications (i.e., serious, severe, and 
extreme nonattainment areas). See CAA sections 182 (c), (d), and (e). 
Furthermore, CAA section 182(f) states that, ``[t]he plan provisions 
required under this subpart for major stationary sources of volatile 
organic compounds shall also apply to major stationary sources (as 
defined in section 302 of this title and subsections (c), (d), and (e) 
of the section) of oxides of nitrogen.'' These sections of the CAA, 
taken together, require the State of Rhode Island, a serious 
nonattainment area, to submit a NO<INF>X</INF> RACT regulation which 
covers major sources of NO<INF>X</INF> statewide.
    Section 302 of the CAA generally defines ``major stationary 
source'' as a facility or source of air pollution which has the 
potential to emit 100 tons per year or more of air pollution. This 
definition applies unless another provision of the CAA explicitly 
defines major stationary source differently. Therefore, for 
NO<INF>X</INF>, a major source is one with the potential to emit 100 
tons per year or more in marginal and

[[Page 46203]]

moderate areas, as well as in attainment areas in the OTR. However, for 
serious nonattainment areas, a major source is defined by section 
182(c) as a source that has the potential to emit 50 tons per year or 
more. The entire State of Rhode Island has been classified as a serious 
ozone nonattainment area. Therefore, in Rhode Island, a major 
stationary source of NO<INF>X</INF> is a facility which has a potential 
to emit 50 tons per year or more of NO<INF>X</INF>.

II. State Submittal

    The Rhode Island Department of Environmental Management (Rhode 
Island or RI DEM) was notified in a January 23, 1991 letter from Region 
I that ``[t]he CAAAs mandate that within 2 years of enactment, states 
submit a SIP revision which requires the implementation of RACT and NSR 
requirements with respect to oxides of nitrogen (NO<INF>X</INF>) for 
all major stationary sources* * *''
    On October 29, 1992, RI DEM submitted a preliminary draft version 
of Regulation No. 27 to EPA. On November 16, 1992, RI DEM submitted the 
proposed regulation. A public hearing was held in Providence, Rhode 
Island on December 16, 1992. Region I provided written comments on the 
proposed regulation on December 18, 1992. The regulations were filed 
with the Rhode Island Secretary of State on January 12, 1994, and 
became effective on February 1, 1994. Rhode Island submitted the 
adopted Regulation No. 27 as a formal SIP submittal to EPA on May 16, 
1994. After reviewing the regulation for completeness, EPA sent Rhode 
Island a letter on June 14, 1994, stating that Regulation No. 27 had 
been found to be administratively and technically complete.
    Subsequently, on August 30, 1995, RI DEM proposed an amended 
Regulation No. 27. A public hearing was held on October 5, 1995, and 
EPA submitted written comments to the public record on that date. On 
September 17, 1996, RI DEM submitted an amended Regulation No. 27. 
After reviewing the amended regulation, EPA sent a letter to RI DEM on 
November 6, 1996, deeming the new submittal administratively and 
technically complete.
    Additionally, a public hearing had been held on October 11, 1995 
for the proposed NO<INF>X</INF> RACT consent agreements for Algonquin 
Gas Transmission Company, Bradford Dyeing Association, Inc., Hoechst 
Celanese Corporation, Rhode Island Hospital, and the University of 
Rhode Island. EPA sent written comments on these proposed orders on 
October 4, 1995. Similarly, on February 1, 1996, a public hearing was 
held on the proposed NO<INF>X</INF> RACT consent agreements for Naval 
Education Training Center and Osram Sylvania Incorporated. EPA sent 
written comments on those proposed orders on February 2, 1996.
    On September 17, 1996, RI DEM submitted miscellaneous 
NO<INF>X</INF> RACT determinations for Rhode Island Hospital and Osram 
Sylvania Incorporated, as well as alternative NO<INF>X</INF> RACT 
determinations for Algonquin Gas Transmission Company, Bradford Dyeing 
Association, Inc., Hoechst Celanese Corporation, University of Rhode 
Island, and the Naval Education and Training Center. On November 6, 
1996, EPA sent a letter to RI DEM deeming the submittals technically 
and administratively complete.

III. Description of Submittal

    The following is a description of the changes to the Rhode Island 
SIP being approved in this action. For a more detailed discussion of 
Rhode Island's submittals and EPA's proposed action, the reader should 
refer to the Technical Support Document developed as part of this 
action. Copies of the Technical Support Document are found at the 
previously mentioned addresses.

A. Regulation No. 27

    Rhode Island's Regulation No. 27, ``Control of Nitrogen Oxides 
Emissions,'' is divided into six sections. Section 27.1 defines terms 
used in the rule. Sections 27.2 covers applicability and exemptions. 
Applicability is first determined facility-wide and then on a unit-by-
unit basis, depending on equipment type. In other words, an individual 
piece of equipment is subject to the rule if it exceeds a minimum 
capacity rating and is located at a major source. Rhode Island allows 
an exemption for sources where actual emissions have not exceeded the 
major source threshold since 1990. The regulation also exempts 
emergency generators which are operated less than 500 hours per year 
from all of its requirements except record keeping.
    Section 27.3. describes the requirements of RACT plans. This 
section describes the information that must be included in such RACT 
proposals, including specific additional plan requirements for sources 
conducting seasonal fuel-switching, as well as for miscellaneous source 
types, i.e., categories not otherwise covered by emission limits in the 
regulation. This section also requires RI DEM to review the RACT 
proposals and to issue a final approval or disapproval of the proposed 
RACT plan. Additionally, this section describes the process by which 
RACT plans for miscellaneous source categories will be processed as 
case-specific SIP revisions.
    Section 27.4 establishes emission limits which apply as of May 31, 
1995 for utility boilers; industrial, commercial, and institutional 
boilers (ICI boilers); and internal combustion (IC) engines. This 
section also requires that RACT be defined by May 31, 1995 for all 
other sources with the potential to emit 100 tons or more of 
NO<INF>X</INF> per year but which do not have an emission limitation 
specifically defined in the regulation, i.e., miscellaneous source 
categories. However, section 27.4 allows an exemption from these 
emission limits if the equipment has a permit setting BACT or LAER 
since November 15, 1992. Similarly, if a new source permit has been 
issued for combustion turbine facilities since January 6, 1989, IC 
engines since September 28, 1989, or fluidized bed boilers, since March 
11, 1991, the emission limits do not apply.
    Furthermore, section 27.4 allows an exemption from the emission 
limits for utility boilers which committed by October 3, 1994, in an 
enforceable document, to either shut down by May 31, 1995 or be 
replaced by December 31, 1996 as part of a repowering project. 
Additionally, such repowering units must (1) have a permit setting Best 
Available Control Technology (BACT) or Lowest Achievable Emission Rate 
(LAER), (2) comply with the alternative RACT requirements, and (3) have 
the enforceable document and RACT determination submitted to EPA as 
case-specific SIP-revisions. Section 27.4 also describes the 
requirements for sources seeking alternative RACT determinations, 
including the requirement that such determinations be submitted to EPA 
as case-specific SIP revisions; additionally, alternative RACT 
determinations be reviewed every three years by RI DEM until the source 
complies with the otherwise applicable RACT requirements. Finally, 
section 27.4 describes the requirements for fuel-switching facilities, 
including a requirement that such RACT plans be submitted to EPA as 
case-specific SIP revisions.
    Section 27.5 describes compliance testing and emission monitoring 
requirements. These provisions require that compliance be determined by 
continuous emission monitoring systems (CEMS), emissions testing, and/
or by record keeping, depending on the operating capacity and type of 
equipment. The rule requires that utility boilers and fuel-switching 
equipment must, and ICI boilers may, install CEMS. Utility boilers are 
required to

[[Page 46204]]

demonstrate compliance based on a 24-hour average concentration. ICI 
boilers and IC engines are required to demonstrate compliance through 
three 1-hour stack tests. Initial compliance demonstrations were 
required by November 30, 1995. Sources without CEMS are required to 
conduct emission tests annually.
    Section 27.6 describes the record keeping and reporting 
requirements of the regulation. These provisions require sources with 
CEMS to submit quarterly excess emissions reports. Also, this section 
requires that fuel usage by each combustion unit subject to RACT be 
recorded monthly. Oil burning sources must obtain certifications from 
fuel suppliers of, or must themselves determine, the nitrogen content 
of the fuel oil. Section 27.6 requires that all fuel supplier 
certifications or fuel oil analyses be maintained at the source and 
available for inspection by RI DEM and EPA. In addition, ICI boilers 
with operating capacities between 1 and 50 MBtu/hr to maintain records 
verifying that tune-ups have been performed in accordance with Appendix 
A of the regulation.
    Additionally, section 27.6 requires sources subject to emission 
caps to keep records concerning monthly fuel usage, monthly 
NO<INF>X</INF> emissions, etc. This section also requires owners of 
emergency standby engines to provide capacity and fuel information to 
RI DEM, as well as to install, maintain, and keep records of recorded 
hours on an elapsed time meter. Such sources also are required to 
inspect and adjust the timing of engines at least once every three 
years. Finally, section 27.6 requires that all records be maintained at 
the source, and be available to EPA and the State, for a minimum of 
five years.
    A public hearing regarding Regulation No. 27 was held in 
Providence, Rhode Island on December 16, 1992. Region I provided 
written comments on the proposed regulation on December 18, 1992. The 
regulations were filed with the Rhode Island Secretary of State on 
January 12, 1994, and became effective on February 1, 1994. Rhode 
Island submitted the adopted Regulation No. 27 as a formal SIP 
submittal to EPA on May 16, 1994. After reviewing the regulation for 
completeness, EPA sent Rhode Island a letter on June 14, 1994, stating 
that Regulation No. 27 had been found to be administratively and 
technically complete.
    Subsequently, on August 30, 1995, RI DEM proposed an amended 
Regulation No. 27 which changed several provisions of the original 
Regulation No. 27 submitted on May 16, 1994. A public hearing was held 
on the draft amended Regulation No. 27 on October 5, 1995, and EPA 
submitted written comments to the public record on that date. The 
amended regulation was filed with the Rhode Island Secretary of State 
on December 27, 1995, and became effective on January 16, 1996. On 
September 17, 1996, RI DEM submitted the amended Regulation No. 27 to 
EPA. After reviewing the amended regulation, EPA sent a letter to RI 
DEM on November 6, 1996, deeming the new submittal administratively and 
technically complete.

B. Miscellaneous NO<INF>X</INF> RACT--Rhode Island Hospital

    Rhode Island Hospital operates a medical waste incinerator at its 
Providence facility which is subject to the miscellaneous 
NO<INF>X</INF> RACT provisions of section 27.4.4. On September 8, 1995, 
a public notice was published for the proposed miscellaneous 
NO<INF>X</INF> RACT consent agreement for Rhode Island Hospital in 
Providence, Rhode Island. EPA submitted written comments to the public 
record on October 4, 1995 and a public hearing was held on October 11, 
1995. Rhode Island issued the consent agreement, file no. 95-14-AP, to 
Rhode Island Hospital on November 27, 1995, which became effective on 
that date. Rhode Island submitted the final consent agreement as a SIP 
submittal to EPA on September 17, 1996. EPA determined the submittal to 
be administratively and technically complete on November 6, 1996.

C. Miscellaneous NO<INF>X</INF> RACT--Osram Sylvania Inc.

    Osram Sylvania Incorporated (Osram Sylvania) operates two glass 
melting tanks at its Central Falls facility which are subject to the 
miscellaneous NO<INF>X</INF> RACT provisions of section 27.4.4. On 
December 20, 1995, a public notice was published for the proposed 
miscellaneous NO<INF>X</INF> RACT consent agreement for Osram Sylvania 
in Central Falls, Rhode Island. A public hearing was held on February 
1, 1996, and EPA submitted written comments to the public record on 
February 2, 1996. On September 4, 1996, RI DEM issued a consent 
agreement to Osram Sylvania, file no. 96-06-AP, which became effective 
on that date. The consent agreement also references and includes the 
requirements of air pollution permit approval no. 1350, issued by RI 
DEM to Osram Sylvania on May 14, 1996 as a BACT determination for one 
of the glass melting tanks. On September 17, 1996, Rhode Island 
submitted an alternative NO<INF>X</INF> RACT determination for Osram 
Sylvania, including the consent agreement and the permit approval. On 
November 6, 1996, EPA deemed the submittal to be administratively and 
technically complete.

D. Alternative NO<INF>X</INF> RACT--Algonquin Gas Transmission Company

    Algonquin Gas Transmission Company (Algonquin Gas) operates three 
reciprocating internal combustion engines (Units 1, 2, and 3) at its 
Burrillville Compressor Station. The NO<INF>X</INF> emission limitation 
in section 27.4.3 were shown to be technically or economically 
infeasible for these engines. Therefore, on September 8, 1995, a public 
notice was published for a proposed alternative NO<INF>X</INF> RACT 
consent agreement for Algonquin Gas in Burrillville, Rhode Island. EPA 
submitted written comments to the public record on October 11, 1995, 
and a public hearing was held on October 12, 1995. On December 5, 1995, 
RI DEM issued a consent agreement to Algonquin Gas, file no. 95-52-AP, 
which became effective on that date. On September 17, 1996, Rhode 
Island submitted an alternative RACT determination for Algonquin Gas to 
EPA. On November 6, 1996, EPA deemed the submittal to be 
administratively and technically complete.

E. Alternative NO<INF>X</INF> RACT--Bradford Dyeing Association, Inc.

    Bradford Dyeing Association, Inc. (BDA) operates a back-up boiler 
(Boiler #1) at its Westerly facility. The ICI boiler limits imposed by 
section 27.4.2 were shown to be technically or economically infeasible 
for this boiler. Therefore, on September 8, 1995, a public notice was 
published for a proposed alternative NO<INF>X</INF> RACT consent 
agreement for BDA in Westerly, Rhode Island. EPA submitted written 
comments to the public record on October 11, 1995, and a public hearing 
was held on October 12, 1995. On November 17, 1995, RI DEM issued a 
consent agreement to BDA, file no. 95-28-AP, which became effective on 
that date. On September 17, 1996, Rhode Island submitted an alternative 
RACT determination for BDA to EPA. On November 6, 1996, EPA deemed the 
submittal to be administratively and technically complete.

F. Alternative NO<INF>X</INF> RACT--Hoechst Celanese Corporation

    Hoechst Celanese Corporation (Hoechst) operates a back-up boiler 
(Upper Boiler) at its Coventry facility. The ICI boiler limits of 
section 27.4.2 were demonstrated to be technically or

[[Page 46205]]

economically infeasible for this boiler. Therefore, on September 8, 
1995, a public notice was published for a proposed alternative 
NO<INF>X</INF> RACT consent agreement for Hoechst in Coventry, Rhode 
Island. EPA submitted written comments to the public record on October 
11, 1995, and a public hearing was held on October 12, 1995. On 
November 20, 1995, RI DEM issued a consent agreement to Hoechst, file 
no. 95-62-AP, which became effective on that date. On September 17, 
1996, Rhode Island submitted an alternative RACT determination to EPA 
for Hoechst. On November 6, 1996, EPA deemed the submittal to be 
administratively and technically complete.

G. Alternative NO<INF>X</INF> RACT--University of Rhode Island

    The University of Rhode Island (URI) operates a boiler (Boiler #3) 
at the Kingston campus. The ICI boiler emissions limits in section 
27.4.2 were shown to be technically or economically infeasible for this 
boiler. Therefore, on September 8, 1995, a public notice was published 
for a proposed alternative NO<INF>X</INF> RACT consent agreement for 
URI in Kingston, Rhode Island. EPA submitted written comments to the 
public record on October 11, 1995, and a public hearing was held on 
October 12, 1995. On March 12, 1996, RI DEM issued a consent agreement 
to URI, file no. 95-50-AP, which became effective on that date. On 
September 17, 1996, Rhode Island submitted an alternative RACT 
determination for URI to EPA. On November 6, 1996, EPA deemed the 
submittal to be administratively and technically complete.

H. Alternative NO<INF>X</INF> RACT--Naval Education and Training Center

    The Naval Education and Training Center (NETC) operates four 
boilers (boilers #1, #2, #3, and #4) in the Coasters Harbor Island 
Building #86 at its Newport facility. NETC demonstrated that the ICI 
boiler emission limits of section 27.4.2 are not technically or 
economically feasible for these boilers. Therefore, on December 20, 
1995, a public notice was published for a proposed alternative 
NO<INF>X</INF> RACT consent agreement for NETC in Newport, Rhode 
Island. A public hearing was held on February 1, 1996 and on February 
2, 1996, EPA submitted written comments to the public record. On March 
4, 1996, RI DEM issued a consent agreement to NETC, file no. 96-07-AP, 
which became effective on that date. On September 17, 1996, Rhode 
Island submitted an alternative RACT determination for NETC to EPA. On 
November 6, 1996, EPA deemed the submittal to be administratively and 
technically complete.

IV. Issues

    There is one issue associated with this rulemaking. The CAA 
requires that Rhode Island define and require RACT at all major sources 
of NO<INF>X</INF>. Regulation No. 27 contains specific emission limits 
and technology standards for a number of NO<INF>X</INF> emitting 
equipment categories. Additionally, section 27.4.4 of the regulation 
requires any stationary source, equipment, or pollution emitting 
activity that is not covered by one of the explicit emission limits or 
standards to have RACT defined by the Director of RI DEM by May 31, 
1995. These miscellaneous NO<INF>X</INF> RACT determinations must then 
be approved by EPA as revisions to the SIP.
    There are three facilities to which such miscellaneous provisions 
apply: Osram Sylvania in Coventry; Rhode Island Hospital in Providence; 
and, New England Treatment Company (NETCO) in Woonsocket. On September 
17, 1996, RI DEM submitted the final NO<INF>X</INF> RACT consent 
agreements for Osram Sylvania and Rhode Island Hospital. To date, 
however, Rhode Island has not submitted a final RACT consent agreement 
for the sewage sludge incinerator at NETCO.
    Although EPA has not received the final miscellaneous 
NO<INF>X</INF> RACT determination for NETCO, Regulation No. 27 is fully 
approvable at this time for several reasons. First, on November 7, 
1996, EPA issued a policy memorandum entitled ``Approval Options for 
Generic RACT Rules Submitted to Meet the non-CTG VOC RACT Requirements 
and Certain NO<INF>X</INF> RACT Requirements,'' <SUP>2</SUP> which 
applies to Regulation No. 27. Generic RACT provisions are those 
portions of a regulation where the emission limit or technology 
standard is not specified in the rule, rather, the determination of a 
limit is to be made on a case-by-case basis. Under the Act, these case-
specific RACT determinations must be submitted to EPA as revisions to a 
State's SIP. The generic RACT policy allows full approval of a State's 
NO<INF>X</INF> RACT regulation which contains generic provisions if the 
NO<INF>X</INF> emissions from the outstanding RACT determinations are 
not from electric utility sources and an analysis has been completed 
that demonstrates that the remaining case-specific NO<INF>X</INF> RACT 
determinations involve a de minimis level of NO<INF>X</INF> emissions.
---------------------------------------------------------------------------

    \2\ November 7, 1996 memorandum from Sally Shaver, Director, Air 
Quality Strategies and Standards Division, Office of Air Quality 
Planning and Standards, to Air Program Directors, EPA Regional 
Offices.
---------------------------------------------------------------------------

    In the case of Rhode Island's Regulation No. 27, analysis has shown 
that the emissions remaining to be covered by the case-specific RACT 
determinations, i.e., from the NETCO sludge incinerator, constitute 
less than 4% of Rhode Island's baseyear non-utility NO<INF>X</INF> 
emissions. Under the generic RACT policy, such emissions can be 
considered to be de minimis. Additionally, an analysis of the impact of 
Regulation No. 27 shows that the adopted rule and case-specific RACT 
determinations achieve an areawide NO<INF>X</INF> reduction from RACT 
subject sources statewide of almost 60% from a 1990 baseline. EPA's 
March 16, 1994 policy memorandum entitled ``Cost-Effective Nitrogen 
Oxides Reasonably Available Control Technology (RACT)'' contemplates 
that NO<INF>X</INF> RACT will achieve 30% to 50% reduction in actual 
emissions from a 1990 baseline. Given these analyses, Regulation No. 
27, including the generic provisions, is fully approvable.
    It is important to note that approval of this regulation under the 
generic RACT policy does not exempt any remaining miscellaneous sources 
from RACT; rather it is a de minimis deferral of the approval of the 
remaining case-by-case RACT determinations. This means that approval of 
Regulation No. 27 will not relieve the remaining sources of the 
obligation to develop, submit and implement RACT level controls. 
Similarly, approval will not relieve Rhode Island of the obligation to 
ensure that all sources within the State comply with the NO<INF>X</INF> 
RACT requirements of the Act by adopting and implementing emission 
limitations or technology standards. In fact, approval of this 
regulation will serve to reinforce the requirement for the State to 
submit any remaining case-specific RACT determinations. Because 
Regulation No. 27 requires that miscellaneous NO<INF>X</INF> RACT 
determinations be submitted to EPA for approval as SIP revisions, 
approval of the regulation will make the requirement to submit 
remaining NO<INF>X</INF> RACT orders enforceable by EPA, as well as by 
citizens under Section 304 of the Act.

V. Final Action

    Review of the NO<INF>X</INF> RACT SIP submittals, including 
Regulation No. 27, the miscellaneous NO<INF>X</INF> RACT consent 
agreements, and the alternative NO<INF>X</INF> RACT consent agreements, 
indicates that Rhode Island has sufficiently defined the NO<INF>X</INF> 
RACT requirements for the State. Therefore, EPA is fully approving 
Regulation No. 27, as

[[Page 46206]]

amended on December 27, 1995, the miscellaneous NO<INF>X</INF> RACT 
determinations for Rhode Island Hospital and Osram Sylvania 
Incorporated, as well as the alternative NO<INF>X</INF> RACT 
determinations for Algonquin Gas Transmission Company, Bradford Dyeing 
Association, Inc., Hoechst Celanese Corporation, the University of 
Rhode Island, and the Naval Education and Training Center, into the 
Rhode Island SIP.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective November 3, 1997 unless adverse or critical comments are 
received by October 2, 1997.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by simultaneously publishing a subsequent 
document that will withdraw the final action. All public comments 
received will then be addressed in a subsequent final rule based on 
this action serving as a proposed rule. The EPA will not institute a 
second comment period on this action. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective on November 3, 1997.
    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.

VI. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under sections 110 and 301, 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, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAA forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under 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.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. 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 November 3, 1997. 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.

    Dated: August 19, 1997.
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. 7401-7671q.

Subpart OO--Rhode Island

    2. Section 52.2070 is amended by adding paragraphs (c)(48) and 
(c)(49) to read as follows:


Sec. 52.2070  Identification of plan.

* * * * * *

[[Page 46207]]

    (c) * * *
    (48) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on September 17, 
1996, which define and impose reasonably available control technology 
(RACT) to control nitrogen oxides emissions at major stationary sources 
in Rhode Island.
    (i) Incorporation by reference.
    (A) Letter from the Rhode Island Department of Environmental 
Management, dated September 17, 1996, submitting revisions to the Rhode 
Island State Implementation Plan.
    (B) Regulation number 27, ``Control of Nitrogen Oxide Emissions,'' 
as adopted on December 27, 1995, effective January 16, 1996.
    (C) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Rhode Island Hospital, file 
no. 95-14-AP, effective on November 27, 1995.
    (D) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Osram Sylvania Incorporated, 
file no. 96-06-AP, effective on September 4, 1996.
    (E) An air pollution permit approval, no. 1350, for Osram Sylvania 
Incorporated issued by the Rhode Island Department of Environmental 
Management on May 14, 1996 and effective on that date.
    (49) Revisions to the State Implementation Plan submitted by the 
Rhode Island Department of Environmental Management on September 17, 
1996, which define and impose alternative reasonably available control 
technology (RACT) requirements to control nitrogen oxides emissions at 
certain major stationary sources in Rhode Island.
    (i) Incorporation by reference.
    (A) Letter from the Rhode Island Department of Environmental 
Management dated September 17, 1996, submitting revisions to the Rhode 
Island State Implementation Plan.
    (B) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Algonquin Gas Transmission 
Company, file no. 95-52-AP, effective on December 5, 1995.
    (C) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Bradford Dyeing Association, 
Inc., file no. 95-28-AP, effective on November 17, 1995.
    (D) An administrative consent agreement between Rhode Island 
Department of Environmental Management and Hoechst Celanese 
Corporation, file no. 95-62-AP, effective on November 20, 1995.
    (E) An administrative consent agreement between Rhode Island 
Department of Environmental Management and University of Rhode Island, 
file no. 95-50-AP, effective on March 12, 1996.
    (F) An administrative consent agreement between Rhode Island 
Department of Environmental Management and the Naval Education and 
Training Center in Newport, file no. 96-07-AP, effective on March 4, 
1996.
    3. In Sec. 52.2081, Table 52.2081 is amended by adding new state 
citations by date for ``Regulation No. 27,'' to read as follows:
* * * * *


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

* * * * *

                               Table 52.2081.--EPA-Approved Rules and Regulations                               
----------------------------------------------------------------------------------------------------------------
                                      Date                                                          Comments/   
State citation    Title/subject    adopted by   Date approved by     FR citation      52.2070       unapproved  
                                     State            EPA                                            sections   
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                 *            *            *            *            *            *            *                
No. 27........  Control of           12/27/95  Sept. 2, 1997....  [Insert FR            (c)(48)  Adds NO<INF>X RACT  
                 Nitrogen Oxide                                    citation from                  regulations.  
                 Emissions.                                        published date].                             
                ................     11/27/95  Sept. 2, 1997....  [Insert FR            (c)(48)  NO<INF>X RACT for   
                                                                   citation from                  Rhode Island  
                                                                   published date].               Hospital under
                                                                                                  27.4.4.       
                ................       9/4/96  Sept. 2, 1997....  [Insert FR            (c)(48)  NO<INF>X RACT for   
                                                                   citation from                  Osram Sylvania
                                                                   published date].               Incorporated  
                                                                                                  under 27.4.4. 
                                                                                                                
                ................      12/5/95  Sept. 2, 1997....  [Insert FR            (c)(49)  Alternative NO<INF>X
                                                                   citation from                  RACT for      
                                                                   published date].               Algonquin Gas 
                                                                                                  Transmission  
                                                                                                  Company under 
                                                                                                  27.4.8.       
                ................     11/17/95  Sept. 2, 1997....  [Insert FR            (c)(49)  Alternative NO<INF>X
                                                                   citation from                  RACT for      
                                                                   published date].               Bradford      
                                                                                                  Dyeing        
                                                                                                  Association,  
                                                                                                  Inc. under    
                                                                                                  27.4.8.       
                ................     11/20/95  Sept. 2, 1997....  [Insert FR            (c)(49)  Alternative NO<INF>X
                                                                   citation from                  RACT for      
                                                                   published date].               Hoechst       
                                                                                                  Celanese      
                                                                                                  Corporation   
                                                                                                  under 27.4.8. 
                ................      3/12/96  Sept. 2, 1997....  [Insert FR            (c)(49)  Alternative NO<INF>X
                                                                   citation from                  RACT for      
                                                                   published date].               University of 
                                                                                                  Rhode Island  
                                                                                                  under 27.4.8. 
                ................       3/4/96  Sept. 2, 1997....  [Insert FR            (c)(49)  Alternative NO<INF>X
                                                                   citation from                  RACT for Naval
                                                                   published date].               Education and 
                                                                                                  Training      
                                                                                                  Center under  
                                                                                                  27.4.8.       
                                                                                                                
                 *            *            *            *            *            *            *                
----------------------------------------------------------------------------------------------------------------

[FR Doc. 97-23228 Filed 8-29-97; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>