[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Proposed Rules]
[Pages 49056-49058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24608]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 162-0098; FRL-6160-5]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Ventura County Air Pollution 
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing a limited approval and limited disapproval of 
a revision to the California State Implementation Plan (SIP) for ozone. 
This revision concerns the control of oxides of nitrogen (NOx) from 
boilers, steam generators, and process heaters. The intended effect of 
proposing limited approval and limited disapproval of this rule is to 
regulate emissions of NOx in accordance with the requirements of the 
Clean Air Act, as amended in 1990 (CAA or the Act). EPA's final action 
on this proposed rule will incorporate this rule into the Federally 
approved SIP. EPA has evaluated this rule and is proposing a 
simultaneous limited approval and limited disapproval under provisions 
of the CAA regarding EPA actions on SIP submittals and general 
rulemaking authority. This revision, while strengthening the SIP, does 
not fully meet the CAA provisions regarding plan submissions and 
requirements for nonattainment areas.

DATES: Comments on this proposed action must be received in writing on 
or before October 14, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rule and EPA's evaluation report of the rule are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule are also available for 
inspection at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
SW, Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
Ventura County Air Pollution Control District, 669 County Square Drive, 
Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for limited approval and limited 
disapproval into the SIP is Ventura County Air Pollution Control 
District (VCAPCD) Rule 74.15.1, Boilers, Steam Generators, and Process 
Heaters. Rule 74.15.1 was submitted by the State of California to EPA 
on October 13, 1995.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
7671q. The air quality planning requirements for the reduction of 
NOX emissions through reasonably available control 
technology (RACT) are set out in section 182(f) of the Clean Air Act.
    Section 182(f) of the Clean Air Act requires States to apply the 
same requirements to major stationary sources of NOX 
(``major'' as defined in section 302 and sections 182(c), (d), and (e)) 
as are applied to major stationary sources of volatile organic 
compounds (VOCs), in moderate or above ozone nonattainment areas. 
VCAPCD is classified as serious; 1 therefore this area is 
subject to the RACT requirements of section 182(b)(2) and the November 
15, 1992 deadline cited below.
---------------------------------------------------------------------------

    \1\ VCAPCD retained its designation of nonattainment and was 
classified by operation of law pursuant to sections 107(d) and 
181(a) upon the date of enactment of the CAA. See 55 FR 56694 
(November 6, 1991).
---------------------------------------------------------------------------

    Section 182(b)(2) requires submittal of RACT rules for major 
stationary sources of VOC (and NOX) emissions (not covered 
by a pre- or post-enactment control technologies guidelines (CTG) 
document) by November 15, 1992. There are no pre- or post-enactment 
NOX CTG documents. RACT rules covering NOX 
sources and submitted as SIP revisions are expected to require final 
installation of the actual NOX controls as expeditiously as 
practicable, but no later than May 31, 1995.
    This document addresses EPA's proposed action for Ventura County 
Air Pollution Control District (VCAPCD) Rule 74.15.1, Boilers, Steam 
Generators, and Process Heaters. VCAPCD adopted Rule 74.15.1 on June 
13, 1995. The State of California submitted Rule 74.15.1 on October 13, 
1995. The rule was found to be complete on November 28, 1995, pursuant 
to EPA's completeness criteria

[[Page 49057]]

that are set forth in 40 CFR Part 51 Appendix V.2
---------------------------------------------------------------------------

    \2\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, 
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------

    NOX emissions contribute to the production of ground 
level ozone and smog. VCAPCD Rule 74.15.1 specifies exhaust emission 
standards for NOX and carbon monoxide (CO). The rule was 
adopted as part of VCAPCD's efforts to achieve the National Ambient Air 
Quality Standards (NAAQS) for ozone, and in response to the CAA 
requirements cited above. The following is EPA's evaluation and 
proposed action for this rule.

III. EPA Evaluation and Proposed Action

    In determining the approvability of a NOX rule, EPA must 
evaluate the rule for consistency with the requirements of the CAA and 
EPA regulations, as found in section 110 and part D of the CAA and 40 
CFR part 51 (Requirements for Preparation, Adoption and Submittal of 
Implementation Plans). EPA's interpretation of these requirements, 
which forms the basis for this action, appears in the NOX 
Supplement (57 FR 55620) and various other EPA policy guidance 
documents.3 Among these provisions is the requirement that a 
NOX rule must, at a minimum, provide for the implementation 
of RACT for stationary sources of NOX emissions.
---------------------------------------------------------------------------

    \3\ Among other things, the pre-amendment guidance consists of 
those portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues 
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, 
Clarification to Appendix D of November 24, 1987 Federal Register 
Notice'' (Blue Book) (notice of availability was published in the 
Federal Register on May 25, 1988).
---------------------------------------------------------------------------

    For the purpose of assisting State and local agencies in developing 
NOX RACT rules, EPA prepared the NOX Supplement 
to the General Preamble. In the NOX Supplement, EPA provides 
preliminary guidance on how RACT will be determined for stationary 
sources of NOX emissions. While most of the guidance issued 
by EPA on what constitutes RACT for stationary sources has been 
directed towards application for VOC sources, much of the guidance is 
also applicable to RACT for stationary sources of NOX (see 
section 4.5 of the NOX Supplement). In addition, pursuant to 
section 183(c), EPA is issuing alternative control technique documents 
(ACTs), that identify alternative controls for all categories of 
stationary sources of NOX. The ACT documents will provide 
information on control technology for stationary sources that emit or 
have the potential to emit 25 tons per year or more of NOX. 
However, the ACTs will not establish a presumptive norm for what is 
considered RACT for stationary sources of NOX. In general, 
the guidance documents cited above, as well as other relevant and 
applicable guidance documents, have been set forth to ensure that 
submitted NOX RACT rules meet Federal RACT requirements and 
are fully enforceable and strengthen or maintain the SIP.
    The California Air Resources Board (CARB), developed a guidance 
document entitled Determination of Reasonably Available Control 
Technology and Best Available Retrofit Control Technology for 
Industrial, Institutional, and Commercial Boilers, Steam Generators, 
and Process Heaters. EPA has used CARB's guidance document, dated July 
18, 1991, in evaluating Rule 74.15.1 for consistency with the CAA's 
RACT requirements.
    There is currently no version of Ventura County Air Pollution 
Control District (VCAPCD) Rule 74.15.1, Boilers, Steam Generators, and 
Process Heaters in the SIP. The submitted rule includes the following 
provisions:
     General provisions including applicability, exemptions, 
and definitions.
     Exhaust emissions standards for oxides of nitrogen 
(NOX) and carbon monoxide (CO).
     Administrative and monitoring requirements including 
compliance schedule, reporting requirements, monitoring and 
recordkeeping, and test methods.
    Rules submitted to EPA for approval as revisions to the SIP must be 
fully enforceable, must maintain or strengthen the SIP, and must 
conform with EPA policy in order to be approved by EPA. When reviewing 
rules for SIP approvability, EPA evaluates enforceability elements such 
as test methods, record keeping, and compliance testing in addition to 
RACT guidance regarding emission limits. Rule 74.15.1 strengthens the 
SIP through the addition of enforceable measures such as record 
keeping, test methods, definitions, and more stringent compliance 
testing. Because there is no existing SIP rule, the incorporation of 
Rule 74.15.1 into the SIP would decrease the NOX emissions 
allowed by the SIP. However, VCAPCD Rule 74.15.1 provides an automatic 
exemption from compliance for emissions that occur during start-up, 
shutdown, or under breakdown conditions. These conditions are not 
defined in the rule. Such automatic exemptions are not allowed under 
EPA policy as contained in the EPA policy memorandum signed by Kathleen 
M. Bennett, ``Policy on Excess Emissions During Startup, Shutdown, 
Maintenance and Malfunctions'', dated February 15, 1983. In order to be 
consistent with EPA policy, Rule 74.15.1 must be modified to either 
eliminate this exemption, or to define the conditions of its 
applicability to conform with the February 15, 1983 memorandum. A more 
detailed discussion of EPA's evaluation of VCAPCD Rule 74.15.1 can be 
found in the Technical Support Document, dated August 18, 1998, 
prepared by EPA for this rule.
    Although the emission limits, monitoring, and recordkeeping 
provisions of VCAPCD Rule 74.15.1 will strengthen the SIP, this rule is 
deficient with respect to the automatic exemption from compliance for 
emissions that occur during start-up, shutdown, or under breakdown 
conditions. Because of this deficiency, EPA cannot grant full approval 
of this rule under section 110(k)(3) and part D. Also, because the 
submitted rule is not composed of separable parts which meet all the 
applicable requirements of the CAA, EPA cannot grant partial approval 
of the rule under section 110(k)(3). However, EPA may grant a limited 
approval of the submitted rule under section 110(k)(3) in light of 
EPA's authority pursuant to section 301(a) to adopt regulations 
necessary to further air quality by strengthening the SIP. The approval 
is limited because EPA's action also contains a simultaneous limited 
disapproval. In order to strengthen the SIP, EPA is proposing a limited 
approval of VCAPCD's submitted Rule 74.15.1 under sections 110(k)(3) 
and 301(a) of the CAA as meeting the requirements of section 110(a) and 
part D. At the same time, EPA is also proposing a limited disapproval 
of this rule because it contains deficiencies which must be corrected 
in order to fully meet the requirements of sections 182(a)(2), 
182(b)(2), 182(f), and part D of the CAA. 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 two sanctions available to the Administrator: 
highway funding and offsets. The 18 month period referred to in section 
179(a) will begin on the effective date of EPA's final limited 
disapproval. Moreover, the final disapproval triggers the Federal 
implementation plan (FIP) requirement

[[Page 49058]]

under section 110(c). It should be noted that the rule covered by this 
document has been adopted and is currently in effect in Ventura County. 
EPA's final limited disapproval action will not prevent the VCAPCD or 
EPA from enforcing this rule.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic and environmental factors and in 
relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The proposed rule is not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under sections 110 and 301, and subchapter I, part D 
of the CAA do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, 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 flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its action concerning SIPS on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under 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 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: September 2, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 98-24608 Filed 9-11-98; 8:45 am]
BILLING CODE 6560-50-P