[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Proposed Rules]
[Pages 49053-49056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24609]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 169-0097; FRL-6160-4]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; San Joaquin Valley Unified Air 
Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the California State Implementation Plan (SIP) for ozone. 
These revisions concern the control of oxides of nitrogen 
(NOX) from internal combustion engines; stationary gas 
turbines; and from boilers, steam generators, and process heaters. The 
intended effect of proposing limited approval and limited disapproval 
of these rules 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 these proposed rules will incorporate 
these rules into the Federally approved SIP. EPA has evaluated these 
rules 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. These revisions, while 
strengthening the SIP, do 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 rules and EPA's evaluation report of the rules are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rules are also available for 
inspection at the following locations:
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
S.W., Washington, D.C. 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
San Joaquin Valley Unified Air Pollution Control District, Tuolumne 
Street, Suite #200, Fresno, CA 93721.

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 94105-3901, Telephone: (415) 
744-1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being proposed for limited approval and limited 
disapproval into the SIP are San Joaquin Valley Unified Air Pollution 
Control District (SJVUAPCD) Rule 4305--Boilers, Steam Generators, and 
Process Heaters; Rule 4351--Boilers, Steam Generators, and

[[Page 49054]]

Process Heaters--Reasonably Available Control Technology; Rule 4701 
Internal Combustion Engines; and Rule 4703 Stationary Gas Turbines. 
Rules 4305 and 4351 were submitted by the State of California to EPA on 
March 3, 1997, and March 26, 1996, respectively. Rules 4701 and 4703 
were both submitted on March 10, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA) 
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 CAA. On November 
25, 1992, EPA published a proposed rule entitled, ``State 
Implementation Plans; Nitrogen Oxides Supplement to the General 
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; 
Proposed Rule,'' (the NOX Supplement) which describes and 
provides preliminary guidance on the requirements of section 182(f). 
The November 25, 1992, action should be referred to for further 
information on the NOX requirements and is incorporated into 
this document by reference.
    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. The 
SJVUAPCD is classified as serious; 1 therefore this area was 
subject to the RACT requirements of section 182(b)(2) and the November 
15, 1992 deadline cited below.
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    \1\ SJVUAPCD 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).
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    Section 182(b)(2) requires submittal of RACT rules for major 
stationary sources of VOC (and NOx) emissions (not covered 
by a pre-enactment control technologies guidelines (CTG) document or a 
post-enactment CTG document) by November 15, 1992. There were no 
NOx CTGs issued before enactment and EPA has not issued a 
CTG document for any NOx sources since enactment of the CAA. 
The 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 San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4305--
Boilers, Steam Generators, and Process Heaters; Rule 4351--Boilers, 
Steam Generators, and Process Heaters--Reasonably Available Control 
Technology; Rule 4701 Internal Combustion Engines; and Rule 4703 
Stationary Gas Turbines. Rule 4305 was adopted by the SJVUAPCD on 
December 19, 1996, and was submitted by the State of California to EPA 
on March 3, 1997. Rule 4351 was adopted on October 19, 1995, and was 
submitted to EPA on March 26, 1996. Rules 4701 and 4703 were adopted on 
December 19, 1996, and October 16, 1997, respectively, and were both 
submitted on March 10, 1998. Rule 4305 was found to be complete on 
August 12, 1997; Rule 4351 on May 15, 1996; and Rules 4701 and 4703 
were found to be complete on May 21, 1998; all pursuant to EPA's 
completeness criteria that are set forth in 40 CFR Part 51 Appendix 
V.2.
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    \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).
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    NOx emissions contribute to the production of ground 
level ozone and smog. SJVUAPCD Rules 4305, 4351, 4701 and 4703 specify 
exhaust emission standards for NOx and carbon monoxide (CO). 
The rules were adopted as part of SJVUAPCD'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 these rules.

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.
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    \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).
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    For the purposes 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) has 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 (July 18, 1991). EPA has used this CARB guidance 
document in evaluating Rules 4305 and 4351 for consistency with the 
CAA's RACT requirements. The CARB also developed a Proposed 
Determination of Reasonably Available Control Technology and Best 
Available Retrofit Control Technology for Stationary Internal 
Combustion Engines (December 3, 1997). EPA has used this CARB guidance 
document in evaluating Rule 4701 for consistency with the CAA's RACT 
requirements. Finally, the CARB developed a Determination of Reasonably 
Available Control Technology and Best Available Retrofit Control 
Technology for the Control of Oxides of Nitrogen from Stationary Gas 
Turbines (May 18, 1992). EPA has used this CARB guidance document in 
evaluating Rule 4703 for consistency with the CAA's RACT requirements.
    There are currently no versions of any of the four rules which are 
the subject of this proposed action in the SIP. The

[[Page 49055]]

submitted rules include 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.
    In evaluating the rules, EPA must determine whether approving the 
rules as SIP revisions would interfere with any applicable requirement 
of the CAA. The SJVUAPCD is classified as a serious nonattainment area 
for PM-10. On the date of enactment of the 1990 Clean Air Act 
Amendments, PM-10 areas (including the SJVUAPCD) meeting the 
qualifications of section 107(d)(4)(B) of the Act were designated 
nonattainment by operation of law. In accordance with section 188(a) of 
the Act, at the time of designation all PM-10 nonattainment areas were 
initially classified as moderate. Effective February 8, 1993, EPA 
reclassified the SJVUAPCD as serious under section 188(b)(1) of the Act 
(see 58 FR 3334).
    Section 189(a)(1)(C) of the Act requires that Reasonably Available 
Control Measures (RACM) for the control of PM-10 be implemented in 
moderate nonattainment areas (including the SJVUAPCD) by December 10, 
1993. Section 189(b)(1)(B) of the Act requires that Best Available 
Control Measures (BACM) for the control of PM-10 be implemented in 
serious nonattainment areas (including the SJVUAPCD) by February 8, 
1997.
    These control requirements also apply to major stationary sources 
of PM-10 precursors (including NOX) under section 189(e) of 
the Act, unless the EPA determines that such sources do not contribute 
significantly to PM-10 levels which exceed the standard in the area. 
EPA has concluded that the PM-10 attainment strategy for the SJVUAPCD 
will rely heavily on the control of precursors to PM-10, including 
nitrogen dioxide (see 58 FR 3337).
    Section 172(c)(1) provides that RACM shall include, at a minimum, 
those reductions in emissions from existing sources as may be obtained 
through the adoption of Reasonably Available Control Technology (RACT). 
The four subject NOX control rules have been adopted by the 
SJVUAPCD, and the control requirements contained therein are applicable 
under state law to facilities throughout the District. EPA therefore 
concludes that these control technologies are reasonably available.
    The rules contain provisions waiving RACT requirements for 
facilities located west of Interstate Highway 5 in Fresno, Kern, and 
King counties (the West Side exemption). This exemption constitutes a 
failure to implement RACM at these facilities as required under section 
189(a)(1)(C) of the Act. Section 110(l) of the Act forbids EPA from 
approving SIP revisions which would interfere with any applicable 
requirement of the Act, including section 189(a)(1)(C). For this reason 
EPA cannot grant full approval of these rules. (Because EPA finds that 
the West Side exemption is inconsistent with section 189(a)(1)(C) of 
the Act, EPA is not making a determination at this time regarding the 
West Side exemption's consistency with section 182(f).)
    Although the emission limits, monitoring, and recordkeeping 
provisions of SJVUAPCD Rules 4305, 4351, 4701, and 4703 will strengthen 
the SIP, these rules contain deficiencies related to the West Side 
exemption, as well as other deficiencies. A more detailed discussion of 
the sources controlled, the controls required, explanation of why these 
controls fail to completely implement RACT and other requirements of 
the CAA, and a description of other rule deficiencies can be found in 
the Technical Support Documents (TSD's) prepared by EPA for each rule. 
All four of these TSD's are dated July 31, 1998.
    Because of the above deficiencies, EPA cannot grant full approval 
of these rules under section 110(k)(3) and part D. Also, because the 
submitted rules are not composed of separable parts which meet all the 
applicable requirements of the CAA, EPA cannot grant partial approval 
of the rules under section 110(k)(3). However, EPA may grant a limited 
approval of the submitted rules 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 SJVUAPCD's submitted Rules 4305, 4351, 4701, and 4703 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 these rules because they contain 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 
under section 110(c). It should be noted that the rules covered by this 
document have been adopted and are currently in effect in the SJVUAPCD. 
EPA's final limited disapproval action will not prevent the SJVUAPCD or 
EPA from enforcing these rules.
    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 rules are not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because they are not ``economically significant'' actions 
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 30l, 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

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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. 98-24609 Filed 9-11-98; 8:45 am]
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