[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Rules and Regulations]
[Pages 15483-15486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7243]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC 13-1-6552a; FRL-5177-7]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Disapproval of New Source Review Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision 
submitted by the District of Columbia pertaining to the regulation of 
major new and major modified sources in the District of Columbia. The 
intended effect of this action is to disapprove the District of 
Columbia regulations because they do not meet the requirements of the 
Clean Air Act. This action is being taken under section 110 of the 
Clean Air Act.

DATES: This action will become effective May 23, 1995 unless adverse 
comments are received on or before April 24, 1995. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate 
Director, Air Programs (3AT00), U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107 and the 
District of Columbia Department of Consumer and Regulatory Affairs, 
2100 Martin Luther King Ave, SE., Washington, DC 20020.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at 
the EPA Region III address.

SUPPLEMENTARY INFORMATION: On June 21, 1985 and October 22, 1993, the 
District of Columbia submitted a formal revision to its State 
Implementation Plan (SIP). Only the portions of those submittals 
pertaining to the permitting of new sources is being addressed in this 
rulemaking. The SIP submittal being addressed consists of District of 
Columbia Municipal Regulations (DCMR) Title 20, Sections 199 
(definitions--only those pertaining to the permitting of new sources), 
200, 201, 202 and 204 (permitting), and 299 (reference to the 
applicability of definitions in Section 199).
    The District of Columbia (the District) is part of the Washington 
D.C. ozone nonattainment area, which includes portions of Maryland and 
Virginia. Washington D.C. is a nonattainment area classified as serious 
for ozone and moderate for carbon monoxide and, as such, is required to 
implement certain requirements including those pertaining to the 
permitting of major new and major modified sources. The Clean Air Act 
required that areas such as the District submit adopted regulations 
applying to the permitting of these major sources by no later than 
November 15, 1992. In addition, section 184 of the Clean Air Act 
requires that [[Page 15484]] areas located in the ozone transport 
region, of which the District is a part, submit a new source review 
program applicable to major new and major modified sources. The Act 
defines major sources in serious ozone nonattainment areas as those 
with the potential to emit greater than or equal to 50 tons per year of 
VOC or NOx emissions. Therefore, although section 184 requires that 
areas in the ozone transport region (OTR) define major sources as those 
with the potential to emit greater than or equal to 50 TPY VOC or 100 
TPY NOx emissions, the more stringent major source threshold of 50 TPY 
for serious ozone nonattainment areas supersedes the OTR requirement. 
The Act requires that moderate carbon monoxide (CO) nonattainment 
areas, such as the District, control its new CO sources with potential 
emissions greater than or equal to 100 TPY and its major modified 
sources where potential emissions were increasing by greater than 40 
TPY. On July 6, 1993, EPA made a finding that the District failed to 
submit the required new source review regulations and started the 18 
month sanctions clock under section 179 of the Act. On October 22, 
1993, the District submitted the required regulations, which were 
subsequently determined by EPA to be complete and stopped the sanctions 
clock.

Summary of SIP Revision

    The District of Columbia submittals include more than the required 
construction permitting program for major new and major modified 
sources required under section 182 of the Act. Sections 200, 201, 202, 
and 204 of the DCMR regulations apply to both major and minor sources 
and to sources wishing to obtain construction or operating permits. 
Section 299 is an administrative section stating that the definitions 
in Section 199 apply to Chapter 2. Section 199 contains the definitions 
applicable to all of the District's regulations. Those definitions 
contained in Section 199 that apply to the permitting program, and 
which are the subject of this rulemaking action, are: actual emissions, 
allowable emissions, begin actual construction, commence, complete, 
emissions unit, federally enforceable, major modification, major 
stationary source, modification, necessary preconstruction approvals or 
permits, net emissions increase, new source, potential to emit, 
shutdown, significant, and stationary source.
    The DC regulations at Sections 200, 201, 202, and 204 include a 
number of deficiencies that make the submittal unapprovable. The two 
most significant flaws are the lack of public notice and comment 
requirements for proposed new sources, and the existence of a provision 
in the regulation that would allow the Mayor to grant temporary permits 
on a month by month basis, allowing circumvention of the entire NSR 
regulation. The requirement for providing public notice and comment on 
all major new source and major modified source permits is contained in 
40 CFR part 51. The District's regulation does not provide such 
required public notice and comment. These two flaws alone are so 
significant as to warrant disapproval of the District's 1985 and 1993 
NSR SIP submittals. The other deficiencies include the lack of clarity 
in requiring consistency of emission offsets with the RFP baseline, the 
determination of the amount of emission offsets required (separate 
summation of VOC and NO<INF>X emissions for offset purposes), location 
of emission offsets, timing of the enforceability of the emission 
offsets, creditability of emission offsets relative to other Clean Air 
Act requirements, the definition of stationary source as it pertains to 
nonroad engines, a provision that allows circumvention of the offset 
requirement (Section 204.9), and the de minimis provisions of section 
182(c)(6).
    The District's regulations at Section 200.11 also include an 
exemption for fuel-burning equipment, which has a capacity of 5 million 
or less BTU per hour (mmBTU/hr) of heat input and, which uses for fuel 
only gaseous fuels or distillate oils. This exemption is not approvable 
because the Act, as amended in 1990, requires that states with ozone 
nonattainment areas control major sources of nitrogen oxides (NO<INF>X) 
as well as volatile organic compounds (VOCs). In the District, a major 
source of VOC or NO<INF>X is defined as that which has the potential to 
emit 50 tons per year or more. Fuel burning equipment are sources of 
NO<INF>X emissions and while an individual piece of equipment with a 
capacity of 5 mmBTU/hr heat input would likely not generate emissions 
greater than 50 TPY potential emissions, a group of such sources at a 
single facility could generate emissions over the major source size 
threshold. If the District wishes to exempt any group of NO<INF>X 
sources that would be considered major, it must apply for and receive a 
waiver under section 182(f) of the Act. EPA's guidance on the criteria 
for approval of NO<INF>X exemptions under section 182(f) is contained 
in EPA documents including, ``Guideline for Determining the 
Applicability of Nitrogen Oxide Requirements under Section 182(f)'', 
December 1993 and subsequent memoranda. The District has not made a 
petition under section 182(f) but even if it had, EPA could not approve 
the exclusion of major NO<INF>X sources from RACT requirements until 
approval of such petition under section 182(f) were granted.
    Several citations to the Clean Air Act in Section 204 of the DCMR 
regulation are incorrect. Any updated references to the Act, as amended 
in 1990, should reflect the appropriate provisions pertaining to new 
source permitting program requirements in sections 172, 173, and other 
relevant sections of the Act.
    The District regulations applicable to major new and major modified 
sources also do not contain the de minimis and special modification 
provisions of sections 182(c) (6), (7) and (8) of the Act. These 
provisions apply to sources locating in serious and severe ozone 
nonattainment areas. Section 182(c)(6) is a de minimis provision that 
requires that a source undergoing modifications determine whether those 
modifications are major by summing its net emission increases over a 5-
year consecutive period, including the calendar year in which the 
increase occurred. If the sum of the emission increases exceeds 25 TPY 
over that period, the modification is considered major. Sections 182(c) 
(7) and (8) apply to such sources that have exceeded the 25 ton 
threshold but wish to avoid the otherwise applicable new source review 
requirements. Section 182(c)(7) would allow sources with potential 
emissions of less than 100 TPY to obtain 1.3 to 1 internal offsets to 
avoid new source review, or else to install best available control 
technology (BACT) instead of LAER technology. Section 182(c)(8) would 
allow sources with potential emissions of more than 100 TPY to obtain 
1.3 to 1 internal offsets in order to avoid the installation of LAER 
technology. The District must adopt a regulation that reflects the 
requirements of section 182(c)(6) but may choose not to adopt the 
provisions in sections 182(c) (7) and (8). The consequence of simply 
adopting the de minimis provisions of section 182(c)(6) but not (c)(7) 
or (c)(8) is that the overall effect would be to make the District 
requirements more stringent than the Act. Since the Act allows for 
state regulations to be more stringent, this would be acceptable to 
EPA.
    The District regulations pertaining to major new and major modified 
sources also do not clearly require that VOC and NO<INF>X emissions are 
to be summed separately to determine applicability and the required 
amount of emission offsets. In addition, emission offsets are not 
explicitly required to be federally [[Page 15485]] enforceable prior to 
permit issuance. The District must, at a minimum, require that VOC and 
NO<INF>X emission offsets be obtained for the same pollutant and that 
these emission offsets be made federally enforceable prior to permit 
issuance. The separate summation of VOC and NO<INF>X emissions for 
offset purposes is a required clarification. If the District elects not 
to require the separate summation of VOC and NO<INF>X emissions for 
applicability purposes and does not permit the netting of emissions in 
order to determine NSR applicability, this would be more stringent than 
the federal requirements and would be considered acceptable to EPA. If, 
however, the District chooses to allow netting, a separate summation of 
VOC and NO<INF>X emissions for both applicability and offset purposes 
is required. In addition, Section 204.9 of the District's regulation 
appears to provide sources with the ability to circumvent the offset 
requirements in Section 204.4. The District must delete this provision.
    The District regulation is not limited to a major new or major 
modified source construction permit program. The applicability of the 
District regulation (Chapter 2) includes major source operating permits 
and minor source construction and operating permits. This raises 
additional issues that do not pertain to the required submittal under 
section 182 or 184 of the Act. Submittal of a major source operating 
permit program or a minor source construction and operating permit 
program is not a requirement under section 182 or 184 of the Act. 
Therefore, lack or disapproval of such submittals will not result in 
sanctions under section 179 pertaining to failure to submit or adopt 
regulations required under section 182 or 184. Likewise, the District's 
submittal of a major source operating permit program or a minor source 
construction or operating permit does not fulfill the District's 
requirement to submit a NSR program under sections 182 and 184 of the 
Act. It is not and was not the District's intent to submit the Section 
200-299 regulation to meet the requirements of title V of the Act 
pertaining to major source operating permit programs. In fact, the 
District has subsequently submitted a title V operating permit program 
for EPA approval. The submittal being acted on today is being judged as 
to whether it meets the requirements of sections 182 and 184 of title I 
of the Act, pertaining to a major new and major modified source 
construction permitting program, not title V requirements. The title V 
submittal is not the subject of today's rulemaking action. The effect 
of this rulemaking action will be to disapprove, also, the District 
regulation as it pertains to a major source operating permit program as 
the program submitted by the District does not meet the requirements of 
sections 182 and 184 of the Act. EPA cannot approve a title V operating 
permit program in lieu of a new source review (major new and major 
modified source construction) program. EPA, however, encourages the 
submittal of a minor source operating permit program, separate from the 
major source construction permit program, which would establish 
federally enforceable conditions for those sources that wish to remain 
minor sources.
    The effect of this rulemaking action will be to disapprove, also, 
the District regulation as it pertains to minor source construction and 
operating permits because it does not meet the requirements of Part D 
of Subchapter I of the Act. Submittal of a minor source construction or 
operating permit program does not correct the deficiencies in the major 
source construction permit program, required under Part D of the Act. 
The submittal addressed in this rulemaking contains provisions 
pertaining to major and minor source construction permits and major and 
minor source operating permits that are inextricably intertwined. Since 
the District regulation does not meet Part D requirements, pertaining 
to a major source construction permitting program, EPA is proposing to 
disapprove the entire submittal as it pertains to permitting.
    While the District may choose to modify and submit a minor source 
operating permit program (subject to the criteria in the June 28, 1989 
Federal Register notice) for approval into the SIP, such a submittal is 
not required under section 182 or 184 of the Act and the lack of 
submittal or lack of corrections to this operating permit program is 
not considered a deficiency under section 182 or 184 of the Act. Any 
subsequent submittal that the District makes to correct the 
deficiencies in the major source construction permit program, which is 
a required submittal under sections 182 and 184 of the Act, must 
clearly delineate the program requirements applicable to major new or 
major modified sources applying for construction permits versus 
permitting requirements that may be applicable to minor sources or 
sources applying for operating permits.
    The requirements for a new source review construction permitting 
program are contained in 40 CFR parts 51 and 52 and the Clean Air Act 
and are summarized in the accompanying technical support document. Any 
subsequent submittal that the District makes must meet the requirements 
of the Act and 40 CFR parts 51 and 52 in order to be approved into the 
District SIP. EPA is in the process of updating 40 CFR parts 51 and 52 
to reflect the current requirements in the 1990 Clean Air Act 
Amendments. Any future NSR submittals from the District will be judged 
against the federal requirements in existence at the time of the 
submittal.
    EPA is disapproving this SIP revision without prior proposal 
because the District's regulations contain such significant flaws that 
the Agency views this as a clear-cut decision and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to disapprove the SIP revision 
should adverse or critical comments be filed. This action will be 
effective May 23, 1995 unless, by April 24, 1995, adverse or critical 
comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent notice 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. 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 May 23, 1995.

Final Action

    EPA is disapproving the District of Columbia Municipal Regulations 
title 20, sections 200, 201, 202, 204 and 299 and the associated 
definitions in section 199, pertaining to the permitting of sources. 
The accompanying technical support document more fully explains the 
rationale for EPA's action.
    EPA is disapproving the District's permitting regulation because it 
contains deficiencies that do not meet the requirements of section 
182(a)(2)(C) of the CAA, and, as such, the rule does not fully meet the 
requirements of part D of the Act. Under section 179(a)(2), if the 
Administrator disapproves a submission under section 110(k) for an area 
designated nonattainment, based on the submission's failure to meet one 
or more of the elements required by the Act, the Administrator must 
apply one of the sanctions set forth in section 179(b) unless the 
deficiency has been corrected within 18 months of such disapproval. 
Section 179(b) provides [[Page 15486]] two sanctions available to the 
Administrator: highway funding and offsets. The 18 month period 
referred to in section 179(a) will begin at the time EPA publishes 
final notice of this disapproval. Moreover, the final disapproval 
triggers the federal implementation plan (FIP) requirement under 
section 110(c).
    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.
    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.
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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 and impose any new Federal requirements.
    This action has been classified as a Table 2 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 
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. The OMB has exempted this 
regulatory action from E.O. 12866 review.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action, pertaining to the disapproval of the 
District of Columbia Municipal Regulations Title 20, Sections 200, 201, 
202, 204, 299 and associated definitions in Section 199, must be filed 
in the United States Court of Appeals for the appropriate circuit by 
May 23, 1995. 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, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: February 17, 1995.
Stanley Laskowski,
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. 7401-7671q.

Subpart J--District of Columbia

    2. Section 52.472 is amended by adding paragraph (f) to read as 
follows:


Sec. 52.472  Approval status.

* * * * *
    (f) Disapproval of revisions to the District of Columbia State 
Implementation Plan, District of Columbia Municipal Regulations (DCMR) 
Title 20, Sections 200, 201, 202, 204 and 299, pertaining to permitting 
of sources, and associated definitions in Section 199 submitted on June 
21, 1985 and October 22, 1993 by the Mayor of the District of Columbia 
(1985 submittal) and by the Administrator of the District of Columbia 
Environmental Regulation Administration (1993 submittal). The 
disapproved regulations include those applicable to major new and major 
modified sources wishing to locate in the District. A new source review 
program for such major sources is required under sections 182 and 184 
of the Clean Air Act. There are many deficiencies in the DCMR 
permitting regulations. Some of these deficiencies are the lack of 
public notice and comment procedures for new and modified sources 
applying for construction permits, the existence of a provision that 
allows the Mayor to grant indefinite 1-month temporary permits to those 
sources whose permits he/she determines have been delayed because of 
his/her office, the inclusion of a major source operating permit 
program, the inclusion of a minor source operating permit program that 
does not meet Part D requirements of the Act, the exemption of certain 
fuel burning (nitrogen oxide emitting) sources, incorrect citations of 
the Clean Air Act, a provision that allows circumvention of the offset 
requirement, and the lack of the de minimis special modification 
provisions required in serious and severe ozone nonattainment areas 
(section 182(c)(6) of the Clean Air Act).

[FR Doc. 95-7243 Filed 3-23-95; 8:45 am]
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