[Federal Register Volume 64, Number 86 (Wednesday, May 5, 1999)]
[Proposed Rules]
[Pages 24119-24122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11274]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 083-4-0122a; FRL -6336-3]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; El Dorado County Air Pollution 
Control District (EDCAPCD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
a revision to the California State Implementation Plan (SIP). The El 
Dorado County Air Pollution Control District (EDCAPCD), Rule 229 
concerns control of emissions of oxides of nitrogen (NOX) 
from industrial, institutional, and commercial boilers, steam 
generators, and process heaters.
    The intended effect of proposing limited approval and limited 
disapproval of this rule is to regulate emissions of Oxides of Nitrogen 
in accordance with the requirements of the Clean Air Act, as amended in 
1990

[[Page 24120]]

(CAA or the Act). EPA's final action on this proposed rule will 
incorporate this rule into the federally approved SIP. EPA has 
evaluated the rule and is proposing a simultaneous limited approval and 
limited disapproval under provisions of the CAA regarding EPA action on 
SIP submittals and general rulemaking authority because these 
revisions, while strengthening the SIP, do not fully meet the CAA 
provisions regarding plan submissions and requirements for 
nonattainment areas.

DATES: Comments must be received on or before June 4, 1999.

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, 
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 `L' Street, Sacramento, CA 95812
El Dorado County Environmental Management Department, Air Pollution 
Control District, 2850 Fairlane Court, Placerville, CA 95667

FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office, AIR-4, 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1160.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for limited approval and limited 
disapproval into the California SIP is EDCAPCD's Rule 229, Industrial, 
Institutional, and Commercial Boilers, Steam Generators, and Process 
Heaters. Rule 229 was submitted by the State of California to EPA on 
October 20, 1994.

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.
    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. 
EDCAPCD is classified as severe; 1 therefore this area is 
subject to the RACT requirements of section 182(b)(2) and the November 
15, 1992 deadline cited below.
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    \1\ EDCAPCD 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 El Dorado County 
Air Pollution Control District (EDCAPCD) Rule 229, Industrial, 
Institutional, and Commercial Boilers, Steam Generators, and Process 
Heaters. EDCAPCD adopted Rule 229 on September 27, 1994. The State of 
California submitted this Rule 229 to EPA on October 20, 1994. The rule 
was found to be complete on October 21, 1994, 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. EDCAPCD Rule 229 specifies exhaust emission 
standards for NOX, carbon monoxide (CO), and VOCs, and was 
originally adopted as part of EDCAPCD's effort to achieve the National 
Ambient Air Quality Standard (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). The EPA interpretation of these requirements, 
which forms the basis for today's action, appears in the NOX 
Supplement (57 FR 55620) and various other EPA policy guidance 
documents 3. Among those 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 Deviation, 
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

[[Page 24121]]

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 
Institutional, Industrial and Commercial Boilers, Steam Generators and 
Process Heaters (July 1991). EPA has found the guidance consistent with 
the CAA and used the CARB guidance document in evaluating Rule 229 for 
consistency with the CAA's RACT requirements.
    There is currently no version of El Dorado County Air Pollution 
Control District (EDCAPCD) Rule 229, Industrial, Institutional, and 
Commercial 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), volatile organic compounds (VOCs) and carbon 
monoxide (CO).
     Administrative and monitoring requirements including 
compliance schedule, reporting requirements, monitoring and record 
keeping, 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 229 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 229 
into the SIP would decrease the NOX emissions allowed by the 
SIP.
    EPA has evaluated EDCAPCD Rule 229 for consistency with the CAA, 
EPA regulations, and EPA policy and has found that, although EDCAPCD 
Rule 229 will strengthen the SIP, this rule contains the following 
deficiencies which must be corrected pursuant to the section 
182(a)(2)(A) requirement of Part D of the CAA.
     Section 229.3 (D): Alternate Emission Control Plan (AECP): 
Provisions must be consistent with the EPA Emissions Trading Policy 
Statement (ETPS) published on December 4, 1986 (51 FR 43814), the 
Economic Incentive Program Rules (EIP) promulgated April 7, 1994 (59 FR 
16690), and EPA policies regarding equivalency provisions, AECPs, 
cross-line averaging, and other bubbles as described in the document 
entitled, ``Issues Relating to VOC Regulation Cutpoints, deficiencies, 
and deviations: Clarification to Appendix D of November 24, 1987 
Federal Register.'' The EIP and EPA policies required AECP provisions 
to meet, among other things, a 10 percent (%) or greater reduction in 
emissions beyond the established baseline.
     The nomenclature regarding ``emissions factors'' is 
unclear: The words ``daily NOX emission factor'' should be 
defined relative to the NOX emissions level as stated in 
Section 229.3 (A).
     Section 229.3 (D) (1) (c): The ``overall average emission 
factor'' should be defined and the method of calculating described in 
the rule.
     Section 229.3 (D) (4) (b) (2): The ``Permitted emissions 
factors'' should be defined.
     Section 229.3 (D) (4) (b): Provisions 3), 4), and 5) 
should be defined and the method of determining emissions/emission 
factors should be included in the rule.
     Section 229.3 (D) (5) (c) and (d): ``The daily overall 
average pounds of NOX/MMBTU'' should be defined.
     Section 229.3 (D) and Section 229.3 (D) (6):
     Reduction of the daily NOX emissions in the 
AECP should be to less than 90 percent of the NOX emissions 
that would result if each unit in operation were individually in 
compliance with Section 229.3 (A).
     Section 229.3 (D) (6): Language should be modified to: ''* 
* * the emission factor calculated in Section 229.3 D.5.d. exceeds 90 % 
of the emission factor calculated in section 229.3 D.5.c., the excess 
emissions shall be considered a violation of the rule.''
     Section 229.3 (D) and Section 229.5 (B) (2): Executive 
Officer's discretion language should be expanded to include ``as 
approved by the Air Pollution Control Officer utilizing methods 
approved by the California Air Resources Board and the U.S. EPA.''
     Provisions should include notification language for 
exceedances.
    Regarding other sections of the Rule:
     Section 229.3 (A): Annual Heat Inputs: To be consistent 
with the CARB Determination the language should be modified to: 
``greater than or equal to 90,000 therms for any of the three previous 
calender years,''.
     Section 229.3 (C): Equipment requirements: Flow rate 
meters should be specified as ``non-resettable, totalizing meters'' for 
both mass flow and volumetric flow meters.
     Section 229.4 (A): Compliance schedule: A date for 
facilities to achieve full compliance should be specified.
    A more detailed discussion of these rule deficiencies can be found 
in the Technical Support Document for Rule 229, dated January 29, 1999, 
which is available from the U.S. EPA, Region IX office.
    Because of these deficiencies, 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 EDCAPCD's submitted Rule 229 under sections 110(k)(3) and 301(a) of 
the CAA. 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), of 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 rule covered by this document has been 
adopted by the El Dorado County Air Pollution Control District and is 
currently in effect in the El Dorado County Air Pollution Control 
District. EPA's final limited disapproval action will not prevent the 
El Dorado County Air Pollution Control District or EPA from enforcing 
this rule.

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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, Regulatory 
Planning and Review.

B. Executive Order 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, 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, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to 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 any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 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 does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
nitrogen Ozone, Reporting and record keeping requirements, Volatile 
organic compounds.

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

    Dated: April 16, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-11274 Filed 5-4-99; 8:45 am]
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