issue-1995-11-07•Federal Register proposed rules — 1995-11-07
Federal Register proposed rules — 1995-11-07
issue-1995-11-07Federal Register proposed rules — 1995-11-07Proposed Regulation
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FR Doc. 95-27568 National Emission Standards for Hazardous Air Pollutants for Source Categories: Gasoline Distribution (Stage 1)
[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Proposed Rules]
[Pages 56133-56136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27568]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5325-6]
RIN 2060-AD93
National Emission Standards for Hazardous Air Pollutants for
Source Categories: Gasoline Distribution (Stage 1)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed amendments.
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SUMMARY: Today's action provided in this document proposes to amend the
rule, ``National Emission Standards for Hazardous Air Pollutants for
Source Categories: Gasoline Distribution (Stage I)'' (the ``Gasoline
Distribution NESHAP''), promulgated on December 14, 1994. The proposal
would amend the initial compliance date for the equipment leak
provisions applicable to existing sources from no later than December
14, 1995 to no later than December 15, 1997, and would amend the date
by which an existing facility must provide an initial notification to
December 16, 1996 or 1 year after a facility becomes subject to the
Gasoline Distribution NESHAP, whichever is later. These modifications
are being proposed because the compliance date for these provisions is
approaching and the EPA believes that, under current circumstances,
additional time will allow sources a better opportunity to establish
major or area source status without foregoing quantifiable emissions
reductions. The EPA is requesting comments for the next 30 days only on
the proposed changes discussed in this document.
DATES: Comments. Comments must be received on or before December 7,
1995 unless a hearing is requested by November 17, 1995. If a hearing
is requested, written comments must be received by December 22, 1995.
Public Hearing. Anyone requesting a public hearing must contact the
EPA no later than November 21, 1995. If a hearing is held, it will take
place on November 21, 1995, beginning at 9:00 a.m.
ADDRESSES: Comments. Comments should be submitted (in duplicate, if
possible) to: Air Docket (6102), Attention Docket Number A-92-38 (see
docket section below), room M1500, U.S. Environmental Protection
Agency, 401 M St., S.W., Washington, D.C. 20460. The EPA requests that
a separate copy also be sent to the contact person listed below.
Public Hearing. If a public hearing is held, it will be held at the
EPA's Office of Administration Auditorium, Research Triangle Park,
North Carolina. Persons interested in attending the hearing or wishing
to present oral testimony should notify Ms. JoLynn Collins, U.S.
Environmental Protection Agency, Research Triangle Park, N.C. 27711,
telephone (919) 541-5671.
Docket. Docket No. A-92-38, Categories VI Reconsideration and VII
Amendments, contains information considered by the EPA in developing
this proposal document and is available for public inspection and
copying between 8:00 a.m. and 4:00 p.m., Monday through Friday,
including all non-Government holidays, at the EPA's Air and Radiation
Docket and Information Center, room M1500, U.S. Environmental
Protection Agency, 401 M Street, SW., Washington, D.C. 20460; telephone
(202) 260-7548. A reasonable fee may be charged for copying. This
docket also contains information considered by the EPA in proposing and
promulgating the Gasoline Distribution NESHAP.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Shedd at telephone number
(919) 541-5397 or at facsimile number (919) 541-3470, Emission
Standards Division (MD-13), U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
I. Background
On December 14, 1994 (59 FR 64303), the EPA promulgated the
``National Emission Standards for Hazardous Air Pollutants for Source
Categories: Gasoline Distribution (Stage I)'' (the ``Gasoline
Distribution NESHAP''). The Gasoline Distribution NESHAP regulates all
hazardous air pollutants (HAP) emitted from new and existing bulk
gasoline terminals and pipeline breakout stations that are major
sources of HAP emissions or are located at sites that are major sources
of HAP emissions. Among the promulgated requirements for existing
sources under this rule are the requirements that sources institute an
equipment leak prevention program and provide an initial notification
of regulatory status no later than December 14, 1995 (40 CFR
Secs. 63.424(e) and 63.428(a)).
Whether a bulk gasoline terminal or pipeline breakout station is a
major source or at a site that is a major source is determined by a
site's ``potential to emit considering controls'' (Act 112(a), 42
U.S.C. 7412(a)). In the Gasoline Distribution NESHAP, the EPA
promulgated two mechanisms for determining major source status that are
specific to this rule: first, the NESHAP included screening equations
for determining potential emissions from terminals and breakout
stations based on the HAP content of gasoline, gasoline throughput, and
emission rates from equipment used to handle gasoline; and second, the
NESHAP allowed for case-by-case review or ``emissions inventory'' of a
site's emissions (40 CFR Sec. 63.420). The equations could be used only
by bulk terminals and pipeline breakout stations that were at sites
that had no other sources of HAP. Other sources would be able to
establish potential to emit either by an emissions inventory or by
using other means (outside the rule) that are generally available to
sources under Subpart A of part 63, the General Provisions, and related
guidance.
When the EPA promulgated the Gasoline Distribution NESHAP, the EPA
anticipated that about 75 percent of all gasoline bulk terminals and
pipeline breakout stations would be able to establish area source
status. However, the EPA recognizes that several developments since
promulgation of the rule have affected the number of sources that will
establish area source status.
First, through a petition for reconsideration filed by the American
Petroleum Institute (API), the EPA has learned that virtually all bulk
terminals and pipeline breakout stations have HAP containing fluids
such as distillates (e.g., diesel fuel and heating fuel oil) that are
handled in equipment outside of the source category. According to API,
this limits the utility of the emissions screening equation as a method
for establishing potential to emit.
Second, the EPA has issued two guidance memoranda on options for
and timing of establishing potential to emit limits. See memorandum
from John S. Seitz, Director, Office of Air Quality Planning and
Standards, and Robert I. Van Heuvelen, Director, Office of Regulatory
Enforcement, ``Options for Limiting the Potential to Emit (PTE) of
[[Page 56134]]
a Stationary Source under Section 112 and Title V of the Clean Air Act
(Act)'' (January 25, 1995); and memorandum from John S. Seitz,
``Potential to Emit for MACT Standards--Guidance on Timing Issues''
(May 16, 1995). These memoranda are available in the docket (see
ADDRESSES section). The first memorandum identified a number of ways
States and sources could establish federally enforceable limits for
potential to emit. In addition, the memorandum created a 2-year
transition period (until January 1997) under which sources could be
treated as area sources if (1) the source actually emits less than 50
percent of the major source threshold and keeps adequate records, or
(2) the source emits between 50 and 100 percent of the major source
threshold, and is limited to this level by State limitations that are
enforceable as a practical matter.
The second memorandum addressed timing issues related to the
applicability of NESHAP that affect only major sources. Major sources
can reduce their potential emissions by obtaining federally enforceable
limitations on their potential to emit, and as a result can achieve
area source status. Before the memorandum was released, it was not
clear whether there was a deadline for achieving area source status,
and whether a source that reduced its potential emissions after the
deadline could avoid being subject to the standard. The memorandum
explained that, in the absence of rulemaking, the best reading of
section 112 would require area source status to be achieved by the
first substantive compliance date of a NESHAP. Additionally, the
memorandum explained that unless area source status is achieved by this
deadline, it will be permanently treated as a major source for purposes
of that NESHAP.
Applying these two guidances to the Gasoline Distribution NESHAP
would mean that, in order to avoid being permanently treated as a major
source subject to the NESHAP, gasoline distribution facilities would
need to achieve area source status before December 15, 1995, the
compliance date for the equipment leaks provision. Industry reports
there are a number of sources emitting less than the major source
threshold that do not have what the EPA believes are practicably
enforceable limitations on their potential to emit. Under the
transition policy discussed above, sources emitting more than 50
percent of major source threshold and lacking practicably enforceable
limits, are currently treated as major sources. The mechanisms for
establishing practicably enforceable limitations on ``throughput'' (the
amount of gasoline, distillate, and other HAP emitting liquids handled
at the terminal or breakout station) generally exist. Those mechanisms,
however, require time to process to put into place for sources. Given
the proximity of the date of the May 16 policy guidance to the December
15, 1995 deadline, the EPA believes that some sources emitting more
than 50 percent of the major source threshold may not have a reasonable
time period to establish practical limitations on their potential to
emit.
II. Summary of and Rationale for the Amendments
Because the developments since promulgation of the Gasoline
Distribution NESHAP have led the EPA to believe that fewer sources will
be able to achieve area source status than had been anticipated, the
EPA has considered ways to modify policy or rule provisions so that the
applicability of the NESHAP will reflect the EPA's intent at the time
of promulgation. After considering revising one or both of the
guidances as they would apply to this source category, and after
considering the amendment of the emissions screening equation, the EPA
believes the most appropriate way to allow sources a better opportunity
to establish major or area source status without foregoing quantifiable
emission reductions would be to defer the compliance date for the
equipment leak provisions for existing sources until December 15, 1997.
Furthermore, for the reasons discussed below, the EPA proposes amending
the initial notification provisions so that notice is not required
until December 16, 1996.
Deferral of the existing source compliance dates for equipment leak
programs and initial notifications is consistent with the deadlines for
compliance under the Act section 112(i), which requires existing major
sources to be in compliance with a rule within 3 years of promulgation.
The deferral of the equipment leak provisions will give facilities
significant additional time to obtain appropriate limits on potential
to emit hazardous air pollutants. The deferral of the initial
notification for existing sources will give cargo truck operators more
accurate notice of the regulatory status of the terminals that they use
and provide adequate lead time for any necessary truck vapor tightness
testing to be performed during normal testing schedules. Additionally,
the notices will provide Federal, State, and local air pollution
control agencies an opportunity to plan for the implementation of this
rule prior to the first compliance date for existing sources. The
initial notifications will be considered non-binding in the case of
sources that are major sources on December 16, 1996, but become area
sources prior to December 15, 1997. Sources that cannot limit their
potential to emit before December 15, 1997, must comply with the
requirements for major sources under the Gasoline Distribution NESHAP
by that date.
Emissions of HAP associated with equipment leaks at bulk terminals
and pipeline breakout stations were estimated to be less than 2 percent
of baseline HAP emissions for the source category. An industry survey
indicated that 80 percent of bulk terminals were already performing
some type of periodic visual leak detection program; therefore,
deferring the compliance date of the Gasoline Distribution NESHAP
provisions on leak detection would not forego significant emission
reductions.
Deferring the compliance date for the equipment leak provisions for
existing sources is preferable to the other available options. The
other options are: (1) to deem the January 25 or May 16 guidance
memoranda inapplicable to the Gasoline Distribution NESHAP; (2) to
adopt a temporary certification scheme similar to that adopted for the
Hazardous Organic NESHAP (HON); and (3) to modify the emission
screening equations based on data currently before the EPA. While the
guidances do not have the legal status of a rule, the EPA continues to
believe that the analysis expressed in the timing guidance is the best
reading of the Act section 112. Addressing the timing issues by
allowing a site to temporarily be a major source and then subsequently
an area source would mean that many sources would be temporarily
subject to the equipment leak provisions. Not only would this pose
difficulties in assuring compliance but it would also produce little,
if any, emission reduction benefits.
If the EPA were to allow an owner or operator of a source to make a
temporary certification that the source is not at a major source, in a
manner similar to the HON amendments promulgated on April 10, 1995 (60
FR 18020), then potentially hundreds of temporary certifications would
be required. Unlike the source category subject to the HON, which is
estimated to have 20 to 40 eligible plant sites, air pollution control
agencies would have little practical opportunity for oversight of these
numerous temporary certifications. Therefore, because of the temporary
nature of the HON certifications and the vast difference in
[[Page 56135]]
the numbers of potential certifications, the EPA is not proposing to
condition an extension of the compliance date on the filing of a
certification that actual emissions are below major source levels.
At this time, the EPA does not have sufficient analyzed data and
information to propose modification to the emission screening equation
in the rule. The EPA is considering data submitted by the API as part
of its petition for reconsideration (available in the docket) and may
propose modification of the equation and request comment at a later
date. The EPA is not requesting comments at this time on the petition
for reconsideration or potential changes to the emission screening
equation.
III. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated NESHAP were submitted to and approved by the Office of
Management and Budget (OMB). A copy of this Information Collection
Request (ICR) document (OMB control number 2060-0325) may be obtained
from Ms. Sandy Farmer, Information Policy Branch, Environmental
Protection Agency, 401 M St., S.W. (mail code 2136), Washington, D.C.
20460, or by calling (202) 260-2740.
Today's proposed changes to the Gasoline Distribution NESHAP have
no impact on the information collection burden estimates made
previously. No additional certifications or filings are proposed.
Therefore, the ICR has not been revised.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether a regulation is ``significant'' and therefore
subject to OMB review and the requirements of the Executive Order. The
criteria set forth in section 1 of the Order for determining whether a
regulation is a significant rule are as follows:
(1) Is likely to have an annual effect on the economy of $100
million or more, or adversely and materially affect a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal government communities;
(2) Is likely to create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency;
(3) Is likely to materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or
(4) Is likely to raise novel or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Gasoline Distribution NESHAP promulgated on December 14, 1994,
was treated as a ``significant regulatory action'' within the meaning
of the Executive Order. An estimate of the cost and benefits of the
NESHAP was prepared at proposal as part of the Background Information
Document (BID) and was updated in the BID for the final rule to reflect
comments and changes to the final rule. The amendments proposed today
would have no impact on the estimates in the BID. The EPA's earlier
estimates of costs and emission reductions were based on the Gasoline
Distribution NESHAP affecting only major sources and did not quantify
the emissions reductions associated with the visual equipment leak
detection program; in any event, these emission reductions are small
relative to the total reduction for the source category.
Pursuant to the terms of Executive Order 12866, it has been
determined that this action is a ``non-significant regulatory action''
within the meaning of the Executive Order. As such, this action was not
submitted to OMB for review.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
EPA to consider potential impacts of regulations on small business
entities. The Act specifically requires the preparation of a Regulatory
Flexibility Analysis in those instances where small business impacts
are possible. When the EPA promulgated the Gasoline Distribution
NESHAP, it analyzed the potential impacts on small businesses,
discussed the results of this analysis in the Federal Register, and
concluded that the promulgated regulation would not result in financial
impacts that significantly or differentially stress affected small
companies. Because today's proposal imposes no additional impacts, a
Regulatory Flexibility Analysis has not been prepared.
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this rule will not have a significant economic impact on a
substantial number of small business entities.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(Unfunded Mandates Act), signed into law on March 22, 1995, the 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, the 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 the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the action proposed today 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. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Petroleum bulk stations and terminals, Reporting and
recordkeeping requirements.
Dated: November 1, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 63 of chapter I of
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 63.424 is amended by revising paragraph (e) to read as
follows:
Sec. 63.424 Standards: Equipment leaks.
* * * * *
(e) Initial compliance with the requirements in paragraphs (a)
through (d) of this section shall be achieved by existing sources as
expeditiously as practicable, but no later than December 15, 1997. For
new sources, initial compliance shall be achieved upon startup.
* * * * *
3. Section 63.428 is amended by revising paragraphs (a) and the
first sentence of paragraph (f)(1) to read as follows:
Sec. 63.428 Reporting and recordkeeping.
(a) The initial notifications required for existing affected
sources under
[[Page 56136]]
Sec. 63.9(b)(2) shall be submitted by 1 year after an affected source
becomes subject to the provisions of this subpart or by December 16,
1996, whichever is later. Affected sources that are major sources on
December 16, 1996 and plan to be area sources by December 15, 1997
shall include in this notification a brief, non-binding description of
and schedule for the action(s) that are planned to achieve area source
status.
* * * * *
(f) * * *
(1) In the case of an existing source or a new source that has an
initial startup date before the effective date, the report shall be
submitted with the notification of compliance status required under
Sec. 63.9(h), unless an extension of compliance is granted under
Sec. 63.6(i). * * *
* * * * *
4. Table 1 to subpart R is amended by revising the entry
``63.9(b)(2)'' to read as follows:
* * * * *
Table 1 to Subpart R.--General Provisions Applicability to Subpart R
------------------------------------------------------------------------
Applies to subpart
Reference R Comment
------------------------------------------------------------------------
* * * *
* * *
63.9(b)(2)............. Yes................ Subpart R allows addition
time for existing sources
to submit initial
notification. Sec.
63.428(a) specifies
submittal by 1-year after
being subject to rule or
December 16, 1997,
whichever is later.
* * * *
* * *
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[FR Doc. 95-27568 Filed 11-6-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-27567 Approval and Promulgation of State Implementation Plans; Washington
[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Proposed Rules]
[Pages 56129-56133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27567]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA9-1-5540, WA28-1-6613, WA34-1-6937; FRL-5326-3]
Approval and Promulgation of State Implementation Plans;
Washington
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency (EPA) proposes limited
approval and limited disapproval of the State Implementation Plan (SIP)
submitted by the State of Washington for the purpose of bringing about
the attainment of the national ambient air quality standards (NAAQS)
for particulate matter with an aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM10). The implementation plan was
submitted by the State to satisfy certain Federal requirements for a
moderate nonattainment area PM10 SIP for Yakima, Washington.
DATES: Comments must be postmarked on or before December 7, 1995.
ADDRESSES: Written comments should by addressed to: Montel Livingston,
EPA, Office of Air (AT-082), 1200 Sixth Avenue, Seattle, Washington
98101.
Copies of the State's request and other information are available
for inspection during normal business hours at the following locations:
EPA, Office of Air, Docket #'s WA9-1-5540 WA28-1-6613 and WA34-1-6937,
1200 Sixth Avenue (AT-082), Seattle, WA 98101, and the Washington State
Department of Ecology, P.O. Box 47600, Olympia, WA 98504.
FOR FURTHER INFORMATION CONTACT: Kelly Huynh, Office of Air (AT-082),
EPA, Seattle, Washington 98101, (206) 553-1059.
SUPPLEMENTARY INFORMATION:
I. Background
The Yakima, Washington area was designated nonattainment for
PM10 and classified as moderate under sections 107(d)(4)(B) and
188(a) of the Clean Air Act (CAA) upon enactment of the Amendments of
1990 on November 15, 1990. This Yakima nonattainment designation was
announced in a March 15, 1990 Federal Register notice (See 56 FR
11101). The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of Title I of the
CAA. EPA has issued a ``General Preamble'' describing EPA's views on
how EPA intends to review SIP's and SIP revisions submitted under Title
I of the CAA, including those State submittals containing moderate
PM10 nonattainment area SIP requirements [See generally 57 FR
13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)]. Because EPA
is describing its interpretations here in broad terms, the reader
should refer to the General Preamble for a more detailed discussion of
the interpretations of Title I advanced in this proposal and the
supporting rationale. In this rulemaking action on the Yakima,
Washington moderate PM10 SIP, EPA is proposing to apply its
interpretations taking into consideration the specific factual issues
presented. Thus, EPA will consider any timely submitted comments before
taking final action on this proposal.
Those States containing initial moderate PM10 nonattainment
areas were required to submit, among other things, the following
provisions by November 15, 1991:
1. Provisions to assure that reasonably available control measures
(RACM) (including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of
reasonably available control technology--RACT) shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously as practicable but no
later than December 31, 1994 or a demonstration that attainment by that
date is impracticable;
3. Quantitative milestones which are to be achieved every three
years and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM10 also apply to major stationary
sources of PM10 precursors except where the Administrator
determines that such sources do not contribute significantly to
PM10 levels which exceed the NAAQS in the area. See sections
172(c), 188, and 189 of the CAA.
States with initial moderate PM10 nonattainment areas were
also required to submit a permit program for the construction and
operation of new and modified major stationary sources of PM10 by
June 30, 1992 (see section 189(a)). Such States also must submit
contingency measures by November 15, 1993 which become effective
without further action by the State or EPA, upon a determination by EPA
that the area has failed to achieve RFP or to attain the PM10
NAAQS by the applicable statutory deadline. See section 172(c)(9) and
57 FR 13543-44.
II. This Action
Section 110(k) of the CAA sets out provisions governing EPA's
review of SIP submittals (See 57 FR 13565-66). In this action, EPA is
proposing to grant limited approval of the Yakima PM10
nonattainment plan as submitted on March 24, 1989; May 1, 1992; August
19, 1992; February 3, 1994; March 1, 1995; March 10, 1995; June 27,
1995; and August 17, 1995. EPA may grant a limited approval of this
nonattainment plan under section 110(k)(3) of the CAA, in light of
EPA's authority under section 301(a) of the CAA to adopt regulations
necessary to further air quality by strengthening the SIP. EPA is
proposing a limited approval because the nonattainment plan serves the
purpose of improving air quality within the Yakima area and is
providing Reasonable Further Progress (RFP)
[[Page 56130]]
toward attainment. The proposed approval of this implementation is
limited, however, in that EPA is not proposing that this plan satisfies
the specific requirements of section 172(c)(1) and 189(a)(1)(C) of the
CAA to implement RACM, including RACT, in moderate nonattainment areas.
EPA also is not proposing that this plan satisfies the specific
requirements of section 189(c) of the CAA to show quantitative
milestones which demonstrate attainment until the area is redesignated
as well as the 1994 attainment demonstration. EPA believes, however,
that the control measures adopted and submitted as of this date will
achieve PM10 emission reductions in the Yakima nonattainment area.
The submittals as a whole contain inseparable portions the cannot be
approved. Thus, EPA is proposing to approve the control measures of the
complete SIP for the limited purpose of strengthening the SIP and
making them enforceable.
However, because the Washington Department of Ecology (WDOE) and
Yakima County Clean Air Authority (YCCAA) have not yet adopted into the
SIP and submitted to EPA certain control measures necessary for full
approval of the SIP, EPA is proposing to disapprove the RACM (including
RACT) element. In addition, because the attainment demonstration for
1994 was not submitted as well as the maintenance demonstration, which
demonstrates attainment until the area is redesignated, EPA is
proposing to disapprove these elements of the SIP. Detailed discussions
of the plan deficiencies are included below and are further discussed
in the Technical Support Document (TSD). If this proposed disapproval
becomes final, it will begin the period for the imposition of
discretionary sanctions under section 110(m) of the CAA and the 18-
month sanctions clock for the imposition of mandatory sanctions under
section 179 of the CAA. If finalized, this disapproval will also
authorize EPA to issue a Federal implementation plan as provided in
section 110(c)(1) of the CAA.
If, however, prior to EPA's final action on this proposal the State
submits a plan to EPA that adequately addresses the outstanding
deficiencies, EPA will withdraw this limited approval/disapproval and
will instead finalize a full approval of the PM10 plan for Yakima.
EPA invites public comment on this proposed action.
A. Analysis of State Submission
1. Procedural Background
The CAA requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the CAA provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.1 Section 110(l) of the CAA similarly provides that
each revision to an implementation plan submitted by a State under the
CAA must be adopted by such State after reasonable notice and public
hearing.
\1\ Also Section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
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EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (See section 110(k)(1)
and 57 FR 13565). EPA's completeness criteria for SIP submittals are
set out at 40 CFR part 51, Appendix V (1991), as amended by 57 FR 42216
(August 26, 1991). EPA attempts to make completeness determinations
within 60 days of receiving a submission. However, a submittal is
deemed complete by operation of law if a completeness determination is
not made by EPA six months after receipt of the submission.
The WDOE held a public hearing on the original plan on December 7,
1988. When this was superceeded by the May 1992 supplement and the
August 1992 supplement additional public hearings were held on November
30, and December 9, 1991 to entertain public comment on the Yakima
implementation plan. Adequate public hearings were also held for the
Yakima contingency measures (submitted on February 3, 1994) and the
Yakima County Clean Air Authority (YCCAA) regulations (submitted on
February 21, 1995). Following the public hearings the submittals were
adopted by the State and signed by the Governor's designee as a
proposed revision to the SIP.
The SIP revisions were reviewed by EPA to determine completeness
shortly after their submittal, in accordance with the completeness
criteria set out at 40 CFR part 51, appendix V (1991), as amended by 57
FR 42216 (August 26, 1991). The submittals were found to be complete,
and letters were forwarded to the WDOE indicating the completeness of
the submittals and the next steps to be taken in the review process.
2. Accurate Emissions Inventory
It is a requirement that each nonattainment plan include a
comprehensive, accurate, current inventory of allowable emissions from
major point sources and actual emissions from all other sources of the
relevant pollutant (PM10) in the area. Because the submission of
such inventories are necessary to an area's attainment demonstration
(or demonstration that the area cannot practicably attain), the
emissions inventories must be received with the submission (See 57 FR
13539).
Yakima originally submitted an emissions inventory for a 1985 base
year with the inventory projected out to 1991. When the area did not
attain the PM10 NAAQS by 1991, the base year was replaced by 1990
in the August 1992 submittal and a new emissions inventory was
submitted. These emissions were again projected out, this time to the
attainment year (1994). The 1990 inventory identified residential wood
combustion as the primary nonattainment source, contributing
approximately 57% of the total area emissions. Additional contributing
sources included resuspended road dust at 17.2%, point sources at 9.8%,
vehicle exhaust at 7% and other area sources at 9%. However, the
emissions inventory did not include allowable point source emissions
and thus supplements were needed to provide a sufficient basis for
determining the adequacy of the attainment demonstration for the area
consistent with the requirements of sections 172(c)(3) and 110(a)(2)(K)
of the CAA.2
\2\ The EPA issued guidance on PM-10 emissions inventories prior
to the enactment of the Clean Air Act Amendments in the form of the
1987 PM-10 SIP Development Guideline. The guidance provided in this
document appears to be consistent with the Act.
---------------------------------------------------------------------------
The Yakima emissions inventory became comprehensive, and EPA
approvable, in terms of allowable point source emissions when WDOE
submitted a March 10, 1995 and August 17, 1995 supplement. Further
details are found in the TSD on the emissions inventory.
3. RACM (Including RACT)
As noted, the initial moderate PM10 nonattainment areas must
submit provisions to assure that RACM (including RACT) are implemented
no later than December 10, 1993 [See sections 172(c)(1) and
189(a)(1)(C)]. The General Preamble contains a detailed discussion of
EPA's interpretation of the RACM (including RACT) requirement (see 57
FR 13539-45 and 13560-61).
Residential wood combustion emissions were identified as the main
contributing source to the PM10 nonattainment problem in Yakima
and
[[Page 56131]]
are being controlled through a mandatory woodsmoke curtailment program
as the area's sole control measure. The original submittal indicates
that a mandatory woodsmoke curtailment program was to have been
implemented by the 1988-1989 heating season. It turns out the
curtailment program was not fully functioning until the 1991-1992
heating season. The SIP indicates that the control of indoor solid fuel
burning devices are expected to result in an emission reduction of
66.5% of woodstove PM10 emissions in the area. A more detailed
discussion of the individual source contributions and their associated
control measures (including available control technology) can be found
in the TSD. EPA has reviewed the State's explanation and associated
documentation and concluded that it adequately justifies the control
measures to be implemented. The implementation of Washington's
PM10 nonattainment plan control strategy has resulted in
attainment of the PM10 NAAQS by December 31, 1994, and thus is
approved.
4. Demonstration
As noted, the initial moderate PM10 nonattainment areas must
submit a demonstration (including air quality modeling) showing that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994 (see section 189(a)(1)(B) of the
CAA). Alternatively, the State must show that attainment by December
31, 1994 is impracticable. WDOE and YCCAA conducted attainment
demonstrations using Regional Air Modeling (RAM), a dispersion modeling
program, for the Yakima area. However, WDOE and YCCAA have not
submitted a demonstration that indicates the 24 hour NAAQS for
PM10 will be attained by 1994 in the Yakima area with the new
allowable major source emissions. The 24-hour PM10 NAAQS is 150
micrograms/cubic meter (g/m\3\), and the standard is attained
when the expected number of days per calendar year with a 24-hour
average concentration above 150 g/m\3\ is equal to or less
than one (see 40 CFR section 50.6). The annual PM10 NAAQS is 50
g/m\3\, and the standard is attained when the expected annual
arithmetic mean concentration is less than or equal to 50 g/
m\3\. A quantitative milestone demonstration has not yet been submitted
showing that the PM10 NAAQS will be maintained for the three years
following the attainment date (December 31, 1997) and thus a limited
disapproval action is being taken for the plan. The control strategy
used to attain the PM10 standard is summarized in the section
titled ``RACM (including RACT)''. A more detailed description of the
attainment demonstration and the control strategy used can be found in
the TSD.
5. PM10 Precursors
The control requirements which are applicable to major stationary
sources of PM10, also apply to major stationary sources of
PM10 precursors unless EPA determines such sources do not
contribute significantly to PM10 levels in excess of the NAAQS in
that area (see section 189(e) of the CAA). Even if precursors are
controlled, available data showing the contribution of precursors
should be provided by the State and placed in the SIP rulemaking record
in the event that sources of precursors assert that they should be
granted an exclusion from control under section 189(e).
An analysis of air quality and emissions data for the Yakima
nonattainment area indicates that exceedances of the NAAQS are
attributed chiefly to particulate matter emissions from solid fuel
combustion and that sources of particulate matter precursor emissions
of sulfur dioxide (SO2) and nitrogen oxides (NOX) contribute
an insignificant amount. Even with WDOE assuming worst case conditions,
the Yakima area precursor sources would only total 7.9% of the
emissions inventory. The consequences of this finding are to exclude
these sources from the applicability of PM10 nonattainment area
control requirements. Note that while EPA is making a general finding
of approval for this area, this finding is based on the current
character of the area including, for example, the existing mix of
sources in the area. It is possible, therefore, that future growth
could change the significance of precursors in the area. EPA intends to
issue future guidance addressing such potential changes in the
significance of precursor emissions in an area.
6. Quantitative Milestones and Reasonable Further Progress
The PM10 nonattainment area plan revisions demonstrating
attainment must contain quantitative milestones which are to be
achieved every three years until the area is redesignated to attainment
and which demonstrate Reasonable Further Progress (RFP), as defined in
section 171(1), toward attainment by December 31, 1994 (see section
189(c) of the CAA). RFP is defined in section 171(1) as such annual
incremental reductions in emissions of the relevant air pollutant as
are required by Part D or may reasonably be required by the
Administrator for the purpose of ensuring attainment of the applicable
NAAQS by the applicable date.
In implementing RFP for this initial moderate area, EPA has
reviewed the attainment demonstration and control strategy for the area
to determine whether annual incremental reductions different from those
provided in the SIP should be required in order to ensure attainment of
the PM10 NAAQS by December 31, 1994 (see section 171(1)). The
Yakima PM10 SIP does not adequately demonstrate attainment for
1994 and does not contain a 1997 quantitative milestone report to
demonstrate the area's maintenance of air quality until redesignation
to attainment is granted. For full approval, WDOE and YCCAA must submit
a plan which demonstrates RFP towards attainment through December 31,
1997.
7. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (See sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556). EPA criteria addressing the enforceability of SIP's and SIP
revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions
must also contain a program that provides for enforcement of the
control measures and other elements in the SIP (See section
110(a)(2)(C)).
Yakima's SIP control measure is addressed above under the section
headed ``RACM (including RACT).'' The control measure applies to
curtailing residential woodsmoke activities during impaired air quality
conditions. The SIP provides that all non-certified solid fuel burning
devices are subject to curtailment under Stage I calls, and all
woodheating devices are banned during a Stage II call. The curtailment
calls are not applicable to those residences that have no other source
of heat available.
The attached TSD contains further information on enforceability
requirements including enforceable emission limitations, a description
of the rules contained in the SIP and the source types subject to them,
test methods with averaging times, malfunction provisions, correctly
cited references of incorporated methods/rules, and reporting and
recordkeeping requirements.
Because YCCAA is authorized by WDOE to enforce the woodsmoke
curtailment program, as well as the other RACM measures contained
within
[[Page 56132]]
the SIP such as source emission limitations and 20% opacity
restrictions, the YCCAA regulations must be enforceable in order to
approve the Yakima nonattainment plan. Under section 110(a)(2)(E)(iii)
of the CAA the State must provide necessary assurances that the State
has responsibility for ensuring adequate implementation of plan
provisions. WDOE would have responsibility where, for example, they
have the authority and resources to implement provisions where the
local entity fails to do so. State law requires local agency regulation
to be as stringent or more stringent than the state's regulations. At
this time several of the YCCAA regulations are less stringent than the
state's regulations and thus are not legally enforceable, and need to
be corrected before full plan approval. Details describing the YCCAA
regulation deficiencies are contained in the TSD supporting this
notice.
8. Contingency Measures
As provided in section 172(c)(9) of the CAA, all moderate
nonattainment area SIP's that demonstrate attainment must include
contingency measures (See generally 57 FR 13543-13544). These measures
must be submitted by November 15, 1993 for the initial moderate
nonattainment areas. Contingency measures should consist of other
available measures that are not part of the area's control strategy.
These measures must take effect without further action by the State or
EPA, upon a determination by EPA that the area has failed to make RFP
or attain the PM10 NAAQS by the applicable statutory deadline. The
Yakima SIP contains a Woodstove Buy Back Program (WSBBP) as its primary
contingency measure. The WSBBP is being implemented as a 100%
overcontrol measure. The program has been in effect since July 1, 1993,
when EPA funding was secured, and has replaced approximately 70
uncertified woodstoves to cleaner forms of heat such as certified
woodstoves, electricity, or gas. The WSBBP provides overcontrol for the
area by creating a reduction in overall emissions regardless of whether
a PM10 NAAQS violation occurs, and thus is being approved as
Yakima's contingency measure.
III. Implications of This Action
EPA is proposing limited approval and limited disapproval of the
plan revisions submitted to EPA for the Yakima nonattainment area on
March 24, 1989; May 1, 1992; August 19, 1992; February 3, 1994; and
March 1, 1995.
In order to fully approve the Yakima moderate PM10
nonattainment SIP submitted by the WDOE and the YCCAA, some corrections
and supplements need to be submitted to and approved by EPA. The plan
deficiencies are described above and more completely in the TSD.
Several YCCAA regulations need to be corrected to become at least as
stringent as WDOE's corresponding regulations, a new 1994 attainment
demonstration needs to be submitted using worst case allowable
emissions, and a quantitative milestone report needs to be submitted
demonstrating attainment of the area until December 31, 1997. If
finalized without correcting these deficiencies, this limited approval/
disapproval would constitute a disapproval under section 179(a)(2) of
the CAA (See generally 57 FR 13566-67). As provided under section
179(a) of the CAA, the State of Washington would have up to 18 months
after a final SIP disapproval to correct the deficiencies that are the
subject of the disapproval before EPA is required to impose either the
highway funding sanction or the requirement to provide two-to-one new
source review offsets. If the State has not corrected its deficiency
within 24 months after the disapproval, EPA must impose the second
sanction. Any sanction EPA imposes must remain in place until EPA
determines that the State has corrected these deficiencies. If EPA
ultimately disapproves the SIP submittal for the Yakima nonattainment
area and the State of Washington fails to correct the deficiencies
within 18 months of such disapprovals, EPA anticipates that the first
sanction it would impose would be the two-to-one offset requirement.
Note also that any final disapproval would trigger the requirement for
EPA to impose a federal implementation plan as provided under section
110(c)(1) of the CAA.
IV. Request for Public Comments
EPA is requesting comments on all aspects of this proposal. As
indicated at the beginning of this notice, EPA will consider any
comments postmarked by December 7, 1995.
V. Administrative Review
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 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 CAA,
preparation of a regulatory 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.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
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
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 proposed 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
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2224), as revised by a July 10, 1995
memorandum
[[Page 56133]]
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 24, 1995.
Chuck Clarke,
Regional Administrator.
[FR Doc. 95-27567 Filed 11-6-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-27566 Approval and Promulgation of Implementation Plans North Carolina: Approval of Revisions to the Raleigh/Durham Carbon Monoxide (CO) Maintenance Plan
[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Proposed Rules]
[Pages 56127-56129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27566]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC79-1-9606; FRL-5326-1]
Approval and Promulgation of Implementation Plans North Carolina:
Approval of Revisions to the Raleigh/Durham Carbon Monoxide (CO)
Maintenance Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the North Carolina CO
Maintenance plan for the Raleigh/ Durham area. On October 18, 1995, the
State of North Carolina submitted a revision to the Raleigh/Durham CO
Maintenance plan, and requested EPA to parallel process the above
referenced
[[Page 56128]]
revision. This revision changes the projected emission inventory
previously published in the Federal Register by EPA on August 2, 1995.
Because the revised projections show the oxygenated fuels regulation is
not needed for maintenance of the CO standard, North Carolina is in the
process of removing regulations that require the use of oxygenated
fuels in the Raleigh/Durham area. The State has scheduled a public
hearing on November 20, 1995.
DATES: Comments on this proposed action must be received in writing by
December 7, 1995.
ADDRESSES: Written comments on this action should be addressed to
Benjamin Franco, at the EPA Regional Office listed below. Copies of the
documents relative to this action are available for public inspection
during normal business hours at the following locations:
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street NE., Atlanta, Georgia 30365.
Department of Environment, Health and Natural Resources, P.O. Box
29535, Raleigh, North Carolina 27626-0535.
FOR FURTHER INFORMATION CONTACT: Interested persons wanting to examine
documents relative to this action should make an appointment with the
Region 4 Air Programs Branch at least 24 hours before the visiting day.
To schedule the appointment or to request additional information,
contact Benjamin Franco, Regulatory Planning and Development Section,
Air Programs Branch, Air, Pesticides & Toxics Management Division, EPA
Region 4, 345 Courtland Street NE., Atlanta, Georgia 30365. The
telephone number is 404/347-3555, extension 4211. Reference file NC79-
1-9606.
SUPPLEMENTARY INFORMATION: Section 175A of the CAA sets forth the
elements of a maintenance plan for areas seeking redesignation from
nonattainment to attainment. The plan must demonstrate continued
attainment of the applicable National Ambient Air Quality Standard
(NAAQS) for at least ten years after the Administrator approves a
redesignation to attainment. To provide for the possibility of future
NAAQS violations, the maintenance plan must contain contingency
measures, with a schedule for implementation adequate to assure prompt
correction of any air quality problems.
On October 7, 1994, the North Carolina Department of Environmental
Management (NCDEM) submitted a redesignation request and maintenance
plan for the Raleigh/Durham CO nonattainment area. On August 2, 1995,
EPA published in the Federal Register a final rule making effective on
September 18, 1995, a maintenance plan and redesignation of Raleigh/
Durham to attainment for CO. The above approved maintenance required
the use of a 2.0% oxygenated fuel program.
Subsequently, on October 18, 1995, NCDEM submitted a request to
parallel process a proposed revision to the Raleigh/Durham CO
maintenance plan. This revision requested the removal of the Oxygenated
Fuel program from the maintenance plan. Due to a change in the
methodology used to calculate this projection, NCDEM has revised their
projected vehicle miles travelled (VMT) in Wake and Durham Counties.
The conclusion that oxygenated fuel was necessary to maintain the CO
standard was based on a VMT projection methodology that segregated the
road types into rural and urban categories. This methodology resulted
in an annual growth rate for urban road types of 5.5 to 6.5 percent in
Wake and Durham Counties. A major concern with this methodology, not
recognized at the time the original maintenance plan was developed, was
the reassignment of rural roads to urban roads. During the six year
window of VMT data, a significant amount of rural road mileage was
reassigned by the North Carolina Department of Transportation to urban
road mileage as the urban boundaries of Raleigh and Durham were
expanded. The result from this analysis was an apparent higher urban
VMT growth rate than was actually occurring.
A revised analysis has been performed using a projection
methodology that projects VMT on a county total basis. The resulting
annual VMT growth rate for both counties is approximately 3.5 percent.
Due to lower projected highway mobile CO emissions, the CO standard can
be maintained without the continued use of oxygenated gasoline in the
Raleigh/Durham area. Therefore, EPA is allowing the removal of the
Oxygenated Fuel program starting in the 95-96 winter season. The State
has moved the program to the contingency plan. In addition, NCDEM made
changes to the contingency plan requiring an analysis of necessary
control measures prior to implementation of any pre-adopted control
measures.
Demonstration of Maintenance--Projected Inventories
Total CO emissions were projected from 1991 out to 2005 for the
Raleigh/Durham area. These projected inventories were prepared in
accordance with EPA guidance. In this notice, EPA is proposing to
approve the revised emission budget. This budget is based on the best
available information, and shows attainment for 10 years.
Raleigh/Durham Nonattainment Area, CO Emissions Summary
[Tons per day]
----------------------------------------------------------------------------------------------------------------
Year Area Nonroad Mobile Point Total
----------------------------------------------------------------------------------------------------------------
1991........................................... 57.12 5.22 569.82 1.00 633.16
1993 *......................................... 57.60 5.58 434.87 1.01 499.06
1996........................................... 60.01 6.25 538.09 1.08 605.43
1999........................................... 63.45 7.18 522.31 1.13 594.07
2002........................................... 65.90 8.08 526.55 1.16 601.69
2005........................................... 67.87 8.98 543.84 1.20 621.89
----------------------------------------------------------------------------------------------------------------
* Oxygenated Fuel program in place (2.7% Oxygen by weight).
Proposed Action
In this document, EPA is proposing approval of revisions to the
State of North Carolina's CO maintenance plan for the Raleigh/Durham
area.
Under the Regulatory Flexibility Act, 5 U.S.C. 601 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, and in
fact is expected to decrease compliance costs and decrease costs to
consumers in the affected areas. Small entities include small
businesses,
[[Page 56129]]
small not-for-profit enterprises, and government entities with
jurisdiction over populations of less than 50,000.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
These rules may bind State, local and tribal governments to perform
certain actions and also require the private sector to perform certain
duties. EPA has examined whether the rules being proposed for approval
by this action would impose no new requirements, since such sources are
already subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action, and therefore there will be no
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: October 27, 1995.
Michael V. Payton,
Acting Regional Administrator.
[FR Doc. 95-27566 Filed 11-6-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-27554 Federal Acquisition Regulation; Employee Stock Ownership Plans
[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Proposed Rules]
[Pages 56216-56217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27554]
[[Page 56215]]
_______________________________________________________________________
Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 31
Federal Acquisition Regulation; Employee Stock Ownership Plans;
Proposed Rule
Federal Register / Vol. 60, No. 215 / Tuesday, November 7, 1995 /
Proposed Rules
[[Page 56216]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAR Case 92-24]
RIN 9000-AG53
Federal Acquisition Regulation; Employee Stock Ownership Plans
agencies: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
action: Proposed rule.
-----------------------------------------------------------------------
summary: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing changes to the cost
principles in the Federal Acquisition Regulation (FAR) to address
employee stock ownership plans (ESOPs). The purpose is to ensure
uniform treatment on the allowability of costs of all ESOP's
irrespective of whether the ESOP is structured as a pension plan or as
deferred compensation, including making the interest costs of leveraged
ESOPs expressly unallowable. This regulatory action was subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
dates: Comments should be submitted on or before January 8, 1996 to be
considered in the formulation of a final rule.
addresses: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets NW., Room 4037, Washington, DC 20405.
Please cite FAR case 92-24 in all correspondence related to this
case.
for further information contact: Mr. Jeremy Olson at (202) 501-3221 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAR case 92-24.
SUPPLEMENTARY INFORMATION:
A. Background
By moving the current language on ESOP's from FAR 31.205-6(j)(8) to
a new 31.205-6(p), the proposed rule recognizes that ESOPs may be
governed by either the cost principle at 31.205-6(j), Pension plans, or
31.205-6(k), deferred compensation. The rule also makes the interest
costs on borrowings of leveraged ESOP's expressely unallowable in
accordance with FAR 31.205-20, thus placing leveraged ESOP's on the
same basis as non-leveraged ESOP's; limits the allowability of noncash
contributions to the Employee Stock Ownership Trust (ESOT) to the fair
market value on the date that the contractor effectively loses control
of the asset to the ESOT or pledges the asset to lender as loan
collateral; and proposes a ceiling of 15 percent on payroll-related
contributions, which is in consonance with limits on similar
supplemental retirement plans under the Internal Revenue Code.
B. Regulatory Flexibility Act
This proposed rule broadens a condition of allowability of costs
upon contractors who wish to be reimbursed under Government contracts.
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies, but the
rule is not expected to have a significant economic impact on a
substantial number of small entities because most contracts awarded to
small entities are awarded on a competitive, fixed-price basis and the
cost principles do not apply. An Initial Regulatory Flexibility
Analysis has therefore not been performed. Comments from small entities
concerning the affected FAR subpart will also be considered in
accordance with section 610 of the Act. Such comments must be submitted
separately and cite FAR case 92-24 in correspondence.
C. Paperwork Reduction Act
This proposed rule is a broader application of an existing cost
principle but does not affect how contractors account for costs of
ESOPs. The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: October 26, 1995.
C. Allen Olson,
Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 31 be amended as set
forth below:
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
2. Section 31.205-6 is amended by removing paragraph (j)(8) and
adding paragraph (p) to read as follows:
31.205-6 Compensation for personal services.
* * * * *
(p) Employee stock ownership plans (ESOPs). An ESOP is an
individual stock bonus plan designed specifically to invest in the
stock of the employer corporation. The contractor's contributions to a
trust of an ESOP may be in the form of cash, stock, or noncash assets.
In addition to specifically applicable pension and deferred
compensation cost principles in paragraphs (j) and (k), respectively,
of this subsection, ESOP costs are allowable subject to the following
provisions:
(1) Any portion of an ESOP cost assigned to a year which is not
paid to the Employee Stock Ownership Trust (ESOT) by the time set for
filing of the Federal income tax return for that year, or any extension
thereof, shall not be allowable.
(2) The contractor shall provide the contracting officer or
designated representative access to the books and records of the ESOT
and to any independent analysis of the fair market value of the stock
in the ESOT made for purposes of the ESOP. This includes analyses made
either for the ESOT or for the contractor.
(3) The contractor shall furnish evidence satisfactory to the
contracting officer demonstrating that acquisitions of stock or noncash
assets by the ESOT are made at the stock's or noncash asset's fair
market value. Any amount in excess of the fair market value is
unallowable.
(i) For purposes of applying the allowability criteria under
paragraph (p)(6) of this subsection, the fair market value of the stock
or noncash assets shall be determined as of the close of business on
the next business day after the transaction date.
(ii) For contractor contributions of stock or noncash assets, the
transaction date is the date on which the contractor sells, assigns, or
otherwise transfers control of the stock or noncash asset to the ESOT
or to a financial institution.
(4) When the stock used by the ESOT to satisfy the plan
requirements of an ESOP is not publicly traded or the contracting
officer determines that the stock was not publicly traded in sufficient
quantities to establish the fair market value, the fair market value of
the stock in paragraph (p)(3) of this
[[Page 56217]]
subsection shall be determined on a case-by-case basis by the
contracting officer, taking into consideration the guidelines for
valuation used by the IRS.
There is no presumption of allowability for the valuations claimed
by the contractor for such stock. Any amount determined to be
attributable to excess stock valuations is unallowable.
(5) Contractor contributions to an ESOT are unallowable to the
extent they are used by the ESOT to pay interest on borrowings, however
represented.
(6) the allowable amount of ESOP cost for a given year shall not
exceed the lesser of--
(i) The fair market value, as determined in paragraphs (p)(3) and
(p)(4) of this subsection, of stock shares credited to the accounts of
individual ESOP participants during that year reduced by--
(A) The fair market value of any forfeitures that are reallocated
to plan participants; and
(B) Dividends applicable to shares credited to plan participants;
or
(ii) 15 percent of the salaries and wages of the employees
participating in the ESOP for that year.
(7) In addition to paragraph (p)(6) of this subsection, the costs
to administer an ESOP are allowable, if reasonable in amount. These
allowable costs do not include costs which are otherwise unallowable
under part 31.
(8) Any increased costs resulting from conversion of the ESOP from
a pension to a non-pension plan or from a non-pension to a pension plan
are unallowable.
[FR Doc. 95-27554 Filed 11-6-95; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 95-27498 Respiratory Protection
[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Proposed Rules]
[Page 56127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27498]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 60, No. 215 / Tuesday, November 7, 1995 /
Proposed Rules
[[Page 56127]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, and 1926
[Docket No. H-049]
RIN 1218-0099
Respiratory Protection
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Reopening the record for comments on a report by M. Nicas.
-----------------------------------------------------------------------
SUMMARY: OSHA is reopening the record for the Respiratory Protection
standard for the purpose of receiving public comment on the Nicas
Report. Several specific areas for comment have been identified.
DATES: Written comments must be postmarked on or before January 8,
1996.
ADDRESSES: Comments must be submitted in quadruplicate or 1 original
(hardcopy) and 1 disk (5\1/4\ or 3\1/2\ inch) in WordPerfect 5.0, 5.1,
6.0, 6.1, or ASCII to: Docket Office, Docket H-049, U.S. Department of
Labor, Occupational Safety and Health Administration, Room N-2625, 200
Constitution Avenue, N.W., Washington, D.C. 20210; telephone: (202)
219-7894. Any information not contained on disk (e.g., studies,
articles) must be submitted in quadruplicate. Written comments limited
to 10 pages or less in length may also be transmitted by facsimile to
(202) 219-5046, provided that the original and 3 copies are sent to the
Docket Office thereafter.
FOR FURTHER INFORMATION CONTACT: Ms. Anne C. Cyr, Office of Information
and Consumer Affairs, Occupational Safety and Health Administration,
U.S. Department of Labor, Room N-3647, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. Telephone (202) 219-8148. A copy of the
referenced report is available for inspection and copying in the Docket
Office and will be mailed to persons who request a copy by telephoning
Mr. John Steelnack at (202) 219-7151. For an electronic copy of the
Federal Register notice, contact the Labor News Bulletin Board (202)
219-4748; or OSHA's WebPage on the Internet at http://www.OSHA.gov/.
For news releases, fact sheets and other short documents, contact OSHA
FAX at (900) 555-3400 at $1.50 per minute.
SUPPLEMENTARY INFORMATION:
Background
On November 15, 1994, OSHA published proposed revisions to 29 CFR
1910.134, the Respiratory Protection standard (59 FR 58884). After
announcing an extended comment period on the proposal, OSHA held public
hearings on the proposal from June 6-20, 1995 (60 FR 15263). One of the
issues discussed extensively during this rulemaking is setting assigned
protection factors (APFs) for the various respirator classes. To assist
OSHA and the public in evaluating the record on this issue, OSHA
contracted with Dr. Mark Nicas to prepare recommendations for
evaluating protection factor studies and combining information across
studies for use in setting APF values. Dr. Nicas submitted a report
titled ``The Analysis of Workplace Protection Factor Data and the
Derivation of Assigned Protection Factors'' (hereafter, the ``Nicas
Report'') which was timely entered as a post-hearing comment into the
Respiratory Protection Docket H-049 as Exhibit #156. OSHA is
contemplating using the recommendations presented in the Nicas Report
as an aid in setting APFs for the final Respiratory Protection
standard.
Request for Review and Comments
The post-hearing briefing period recently ended on October 20,
1995. OSHA is interested in giving the public an additional opportunity
to comment on the Nicas Report. Accordingly, OSHA is reopening the
record for the Respiratory Protection standard solely to provide a
further opportunity to review the Nicas Report and to submit such
comments on the recommendations proposed. The Nicas Report recommends
approaches to resolving key science-policy issues related to setting
APFs. These issues include deciding which workplace protection factor
studies should be evaluated; accounting for particle size effects,
respiratory deposition, and below-detection-limit values; and requiring
specific statistical analyses to account for between-wearer variability
in respirator performance, within-wearer variability, between-study
variations, and parameter uncertainty.
OSHA requests that reviewers comment on the appropriateness and
completeness of the issues identified, the statistical methodology
recommended, and the solutions offered for the other issues. OSHA also
would appreciate any additional opinions or information that reviewers
may want to submit regarding statistical methodologies and evaluation
criteria for APF studies.
Authority and Signature
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C.
20210. It is issued pursuant to section 6(b) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 655).
Signed at Washington, D.C. this 1st day of November, 1995.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 95-27498 Filed 11-6-95; 8:45 am]
BILLING CODE 4510-26-P
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