[Federal Register Volume 64, Number 6 (Monday, January 11, 1999)]
[Rules and Regulations]
[Pages 1517-1521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-80]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 207-0106a; FRL-6211-1]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Mojave Desert Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
California State Implementation Plan (SIP). The revisions concern for 
approval of Mojave Desert Air Quality Management District's (MDAQMD) 
Rules 474, 475, and 476 and recision of MDAQMD Rule 68. These rules 
control oxides of nitrogen (NOX) from fuel burning 
equipment, electric power generating equipment, and steam generating 
equipment. This action will replace the current version of three rules 
now in the SIP and remove one rule from the SIP. The intended effect of 
approving 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 is finalizing the approval of these rules 
into the California SIP under provisions of the CAA regarding EPA 
action on SIP submittals, SIPs for national primary and secondary 
ambient air quality standards and plan requirements for nonattainment 
areas.

DATES: These rules are effective on March 12, 1999 without further 
notice, unless EPA receives adverse comments by February 10, 1999. If 
EPA received such comments, then it will publish a timely withdrawal in 
the Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the 
Region IX office listed below. Copies of the rules and EPA's evaluation 
report for each rule 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:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.
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.

[[Page 1518]]

Mojave Desert Air Quality Management District, 15428 Civic Drive, 
Suite 200, Victorville, CA 92392-2383.

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 
744-1185.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being approved into the California SIP include: MDAQMD's 
Rule 474, Fuel Burning Equipment; Rule 475, Electric Power Generating 
Equipment; and Rule 476, Steam Generating Equipment. The rule being 
removed from the SIP is MDAQMD's Rule 68, Fuel Burning Equipment--Oxide 
of Nitrogen. These rules were submitted by the California Air Resources 
Board (CARB) to EPA on March 10, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or 
the Act) 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 the 
requirements of section 182(f). The November 25, 1992, proposed rule 
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 section 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 
Southeast Desert Air Basin managed by MDAQMD is classified as severe; 
1 therefore this area was subject to the RACT requirements 
of section 182(b)(2), cited below, and the November 15, 1992 deadline.
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    \1\ The Southeast Desert Air Basin 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 56 FR 56694 (November 6, 1991).
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    Section 182(b)(2) requires submittal of RACT rules for major 
stationary sources of VOC emissions (not covered by a pre-enactment 
control techniques 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.
    On March 10, 1998, the State of California submitted to EPA 
MDAQMD's Rule 474, Fuel Burning Equipment; Rule 475, Electric Power 
Generating Equipment; and Rule 476, Steam Generating Equipment; which 
were adopted by MDAQMD on August 25, 1998. These submitted rules were 
found to be complete on May 21, 1998 pursuant to EPA's completeness 
criteria that are set forth in 40 CFR Part 51 Appendix V 2 
and are being finalized for approval into the SIP. This document also 
addresses the State of California's request that Rule 68, Fuel Burning 
Equipment--Oxides of Nitrogen be removed from the SIP. By today's 
document, EPA is taking direct final action to approve this submittal. 
This final action will replace the existing versions of Rules 474, 475, 
and 476 in the SIP and remove Rule 68 from the SIP.
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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. MDAQMD's Rules 474, 475, and 476 control 
emissions of NOX from fuel burning equipment, electric power 
generating equipment, and steam generating equipment. These rules were 
adopted as part of MDAQMD'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 final 
action for this rule.

III. EPA Evaluation and 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). The EPA interpretation of these requirements, 
which forms the basis for this action, appears in various 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, cited above (57 FR 55620). In the 
NOX Supplement, EPA provides 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 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.
    Rule 474 limits NOX emissions from non-mobile, fuel 
burning equipment. The rule applies to new and existing equipment with 
a heat input rate (HIR) of more than 1,775 million Btu per hour (MMBtu/
hr). Equipment burning gaseous fuel must meet a NOX emission 
limit of 125 parts per million (ppm) by volume, and equipment burning 
liquid or solid fuel must meet an emission limit of 225 ppm. All 
emission concentrations are corrected to 3.00 percent by volume stack-
gas oxygen on dry basis.
    The current SIP approved version of Rule 474 applies to any non-
mobile fuel

[[Page 1519]]

burning equipment and specifies NOX emission limits based on 
HIR in million British Thermal Unit per hour (MMBtu/hr) as follows: (1) 
equipment with HIR of 555 or more but less than 1786 MMBtu/hr, the 
emission limits are set at 300 ppm (gas-fired) and 400 ppm (liquid/
solid fuel-fired); (2) equipment with HIR of 1786 or more but less than 
2143 MMBtu/hr, the emission limits are set at 225 ppm (gas-fired) and 
325 ppm (liquid/solid fuel-fired); and (3) equipment with HIR of 2143 
MMBtu/hr or more are set at 125 ppm (gas-fired) and 225 ppm (liquid/
solid fuel-fired).
    The submitted version of Rule 474 specifies NOX emission 
limits at 125 ppm  0.15 lbs/MMBtu (heat input rate basis) 
for gas-fired and 225 ppm  0.28 lbs/MMBtu for liquid-fired 
or solid fuel-fired. These emission limits are within the emission 
limit ranges (0.20 to 0.50 lbs/MMBtu) specified by EPA for utility 
boilers and which were previously determined to meet RACT requirements. 
Further, the rule emission limits are the same emission limits in Rule 
68 which apply to equipment with an HIR over 1775 MMBtu/hr.
    Other provisions of Rule 474 have also changed since the SIP 
revision in 1978. MDAQMD added requirements for emissions when using a 
combination of gaseous fuel and liquid and/or solid fuels. It also 
added provisions for applicability, definitions, exemptions, monitoring 
and records, test methods, and compliance tests. All these provisions 
are more stringent than the SIP version.
    The current SIP approved version of Rule 475 for equipment with a 
HIR of more than 50 MMBtu/hr, sets the NOX emission limits 
at 80 ppm by volume when burning gaseous fuel, 160 ppm when burning 
liquid fuel, and 225 ppm when burning solid fuel. The rule also sets 
emission limits for PM at 5 kilograms per hour (11 lbs/hr) and 23 
milligrams per cubic meter (0.01 grain/scf). Both PM limits must be met 
by all equipment. All limits are referenced at 3 percent stack-gas 
oxygen on dry basis.
    The submitted version of Rule 475 limits NOX emissions 
from non-mobile, electric power generating equipment with a maximum 
rated heat input of more than 50 MMBtu/hr. Rule 475 sets emission limit 
of 42 ppm NOX, 5 kilograms per hour (11 lbs/hr) PM, and 7.60 
milligrams per cubic meter (0.003 grains/scf) PM referenced at 15% 
stack-gas oxygen for gas turbines. All other electric power generating 
equipment must meet existing SIP emission limits for NOX 
using various types of fuels which are set at 80 ppm (gas-fired); 160 
ppm (liquid-fired); 225 ppm (solid fuel-fired); and the weighted 
average when combination fuels are used. These NOX limits 
are within the emission limit ranges (0.20 to 0.50 lb/MMBtu) specified 
by EPA for utility boilers. Rule 475 also incorporates the existing PM 
emission limits of 5 kg per hour (11 lbs/hr) except for the companion 
emission limit (7.6 milligrams per cubic meter (0.003 grains/scf)) for 
gas turbines which is more stringent than what is currently in the SIP. 
Therefore, the submitted Rule 475 is more stringent than the SIP 
version because of the added provisions of more stringent emission 
limits for gas turbines, more stringent PM limits, and addition of 
enforceability measures such as applicability, definitions, exemptions, 
monitoring and records, test methods, and compliance schedule.
    The current SIP approved Rule 476 restricts NOX 
emissions to 125 ppm when burning gaseous fuel and 225 ppm when burning 
liquid or solid fuel from any steam generating equipment having a heat 
input rate of more than 12.5 million kilogram calories (50 MMBtu/hr). 
The PM emission limits are also set at 5 kilograms per hour (ll lbs/hr) 
and 23 milligrams per cubic meter (0.01 grain/scf).
    Rule 476 was significantly changed since the SIP revision in 1978. 
MDAQMD added requirements for determining emissions when using 
combination of gaseous fuel and liquid and/or solid fuels. MDAQMD also 
added provisions for applicability, definitions, exemptions, monitoring 
and records, test methods, and compliance tests.
    The NOX emission limits of 125 ppm  0.15 lbs/
MMBtu (heat input rate basis) for gas-fired and 225  ppm 
0.28 lbs/MMBtu for oil-fired or solid fuel fired are within the 
emission limits ranges (0.20 to 0.50 lbs/MMBtu) specified by EPA for 
utility boilers. The PM emission limits of 5 kilograms per hour (ll 
lbs/hr) and 23 milligrams per cubic meter (0.01 grain/scf) were 
previously determined to meet RACT requirements and are currently in 
the SIP. The revised rule is also more stringent than the SIP approved 
version of the rule because of the addition of enforceability measures 
mentioned above.
    MDAQMD's Rule 68, Fuel Burning Equipment--Oxides of Nitrogen, was 
adopted in January 7, 1972 to control NOX emissions from 
non-mobile fuel burning equipment or other contrivances having heat 
input rate of more than 1775 million Btu per hour (MMBtu/hr) within the 
Southeast Desert Air Basin. Although Rule 68 has been rescinded by 
Southern California APCD, the predecessor of MDAQMD, it has been 
retained in the SIP because EPA previously determined Rule 474 (same 
title), the intended replacement, did not regulate NOX 
emissions from non-steam generating equipment as did previous Rule 68. 
To correct this deficiency, MDAQMD amended Rule 474, Fuel Burning 
Equipment, to cover any equipment rated over 1775 MMBtu/hr; Rule 475, 
Electric Power Generating Equipment, to cover any power generating 
equipment rated over 50 MMBtu/hr; and Rule 476, Steam Generating 
Equipment, to cover any steam generating equipment rated over 500 
MMBtu/hr. Altogether these amended rules cover the scope and emission 
limitations Rule 68 currently has in the SIP. Consequently, MDAQMD is 
rescinding Rule 68 because it no longer serves to control emissions and 
is therefore extraneous. The removal of Rule 68 from the SIP is 
consistent with EPA's policy requirements and removes an extraneous 
rule.
    A more detailed discussion of the sources controlled, the controls 
required, and the justification for why these controls represent RACT 
can be found in the Technical Support Documents (TSDs) for Rules 68, 
474, 475, and 476 dated September 24, 1998.
    EPA has evaluated the submitted rules and has determined that they 
are consistent with the CAA, EPA regulations and EPA policy. Therefore, 
MDAQMD's Rule 474, Fuel Burning Equipment; Rule 475, Electric Power 
Generating Equipment; and Rule 476, Steam Power Generating Equipment 
are being approved under section 110(k)(3) of the CAA as meeting the 
requirements of section 110(a), section 182(b)(2), section 182(f) and 
the NOX Supplement to the General Preamble. Furthermore, EPA 
is removing applicable Rule 68 consistent with the requirements of 
sections 110(l) and 193.
    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.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective March 12, 1999

[[Page 1520]]

without further notice unless the Agency receives adverse comments by 
February 10, 1999.
    If the EPA received such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the rule. Any parties interested 
in commenting on the rule should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on March 12, 1999 and no further action will be taken on the 
proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is does not 
involve decisions intended to mitigate environmental health or safety 
risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, representatives of Indian tribal governments 
``to provide meaningful and timely input in the development of 
regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. 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 
annual 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 promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United

[[Page 1521]]

States prior to publication of the rule in the Federal Register. This 
rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 12, 1999. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compound.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of California was approved by the director of the 
Federal Register on July 1, 1982.

    Dated: December 14, 1998.
Lauren Yoshii,
Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart F--California

    2. Section 52.220 is amended by adding paragraphs (c) (6)(xv)(A) 
and (254)(i)(H)(1) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (6) * * *
    (xv) San Bernardino County Air Pollution Control District.
    (A) Previously approved on December 21, 1975 and now deleted 
without replacement Rule 68.
* * * * *
    (254) * * *
    (i) * * *
    (H) Mojave Desert Air Quality Management District.
    (1) Rules 474, 475, and 476 adopted on August 25, 1997.
* * * * *
[FR Doc. 99-80 Filed 1-8-99; 8:45 am]
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