[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55834-55838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26658]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 76

[FRL-6455-4]


Acid Rain Program--Nitrogen Oxides Emission Reduction Program, 
Rule Revision in Response to Court Remand

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to revise the regulations for the Acid Rain Nitrogen 
Oxides Emission Reduction Program under title IV of the Clean Air Act 
in response to a remand by the U.S. Court of Appeals for the District 
of Columbia Circuit. In December 1996, EPA issued regulations setting 
nitrogen oxides (NOX) emission limits for specified types of 
existing, coal-fired boilers, including cell burner boilers, that are 
subject to such limits starting in 2000. In February 1998, the Court 
upheld the regulations except for one provision addressing what boilers 
qualify as cell burner boilers. The Court vacated and remanded that 
provision. EPA is revising the regulations, consistent with the Court's 
decision, to treat, as a cell burner boiler, any boiler subject to the 
limits starting in 2000, constructed as a cell burner boiler, and 
converted to the burner configuration of a wall-fired boiler. Under the 
regulations, a cell burner boiler must meet an annual average 
NOX emission limit of 0.68 lb/mmBtu. The NOX 
emission limits under title IV will reduce the serious, adverse effects 
of NOX emissions on human health, visibility, ecosystems, 
and materials.

DATES: This rule is effective on December 14, 1999 without further 
notice, unless EPA receives adverse comment by November 29, 1999. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Comments: Commenters must identify all written comments with 
the appropriate docket number (Docket No. A-95-28) and must submit them 
in duplicate to EPA Air Docket Section (6102), Waterside Mall, Room 
M1500, 1st Floor, 401 M Street, SW, Washington, DC 20460.
    Docket. Docket No. A-95-28, containing supporting information used 
in developing the proposed rule, is available for public inspection and 
copying between 8:30 a.m. and 3:30 p.m., Monday through Friday, at 
EPA's Air Docket Section, Waterside Mall, Room 1500, 1st Floor, 401 M 
Street, SW, Washington, DC 20460. EPA may charge a reasonable fee for 
copying.

FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, at (202) 564-9151,

[[Page 55835]]

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460; or the Acid Rain Hotline at (202) 564-9089.

SUPPLEMENTARY INFORMATION: EPA is publishing this rule revision as a 
direct final rule because we view this as noncontroversial and 
anticipate no adverse comment. The rule revision is consistent with a 
remand by the U.S. Court of Appeals for the District of Columbia 
Circuit. Further, EPA projects that the rule revision will affect only 
one boiler, by increasing the boiler's NOX emission limit 
under title IV. However, in the ``Proposed Rules'' section of today's 
Federal Register, we are publishing a separate document that will serve 
as the proposed rule revision if we receive any timely, adverse 
comments. Today's direct final rule will be effective on December 14, 
1999 without further notice unless we receive adverse comment by 
November 29, 1999. If we receive such adverse comment, we will publish 
a timely withdrawal in the Federal Register informing the public that 
the rule will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so at this time.
    The information in this preamble is organized as follows:

I. Regulated Entities
II. Background and Revisions
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Executive Order 12875: Enhancing Intergovernmental 
Partnerships
    C. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    D. Unfunded Mandates Act
    E. Paperwork Reduction Act
    F. Regulatory Flexibility
    G. Applicability of Executive Order 13045: Children's Health 
Protection
    H. National Technology Transfer and Advancement Act
    I. Submission to Congress and the General Accounting Office

I. Regulated Entities

    Entities potentially regulated by this action are fossil-fuel fired 
boilers that burn coal and that serve generators producing electricity 
for sale. Regulated categories and entities include:

------------------------------------------------------------------------
                                                Examples of regulated
                 Category                             entities
------------------------------------------------------------------------
NAICS Code: 22112, Fossil Fuel Electric     Electric service providers,
 Power Production.                           boilers that burn coal.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. This action could also 
regulate other types of entities not listed in the table. To determine 
whether your facility is regulated by this action, you should carefully 
examine the applicability criteria in Secs. 72.6 and 76.1 and the 
exemption in Sec. 72.8 of title 40 of the Code of Federal Regulations. 
If you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

II. Background and Revisions

    Under title IV of the Act, utility units are subject to sulfur 
dioxide (SO2) emission limits (as required in sections 404, 
405, 408,and 409) and must monitor SO2, NOX, 
carbon dioxide (CO2), and opacity (as required in section 
412). Further, under section 407(a), NOX emission limits 
established under section 407(b) apply to any existing ``coal-fired 
utility unit,'' generally when the unit is subject to SO2 
emission limits. 40 U.S.C. 7651f(a). Section 407(b)(1) requires EPA to 
set NOX emission limits for tangentially fired boilers and 
dry bottom, wall-fired boilers. Section 407(b)(2) authorizes EPA to 
establish more stringent emission limits for these types of boilers 
effective starting in 2000. In addition, section 407(b)(2) requires EPA 
to set NOX emission limits for all other types of existing 
coal-fired boilers, including ``units applying cell burner 
technologies.'' 40 CFR 7651f(b)(2). However, title IV does not define 
the phrase ``units applying cell burner technology.'' EPA therefore 
interpreted the phrase in the regulations setting the applicable 
limits.
    Cell burner boilers have closely spaced clusters of 2 or 3 burners 
(i.e., cells) that together result in a single flame. In addition, the 
boilers are, like many wall-fired boilers, relatively compactly 
designed with small furnaces. Two types of combustion control systems 
are available for cell burner boilers. First, the boiler owner or 
operator can retain the cell configuration of the burners by replacing 
each burner in each cell with a low NOX burner (referred to 
as ``plug-in combustion controls''). Second, the owner or operator can 
replace the sections of the boiler walls containing the cells with wall 
sections that reconfigure and replace the burners and that contain low 
NOX burners more widely spaced in a row (referred to as 
``non-plug-in combustion controls''), like those in wall-fired boilers. 
Either type of combustion controls may or may not include additional 
ports for the injection of air above the low NOX burners.
    In interpreting section 407 for purposes of setting emission limits 
under sections 407(b)(1) and (2), EPA had to decide how to apply the 
boiler categories to boilers to which the owner or operator made 
physical changes after original construction. Some of these changes 
could arguably put the boilers in a different boiler category. EPA 
first addressed this issue in the rulemaking under section 407(b)(1) 
where EPA issued the April 13, 1995 rule setting the initial limits for 
tangentially fired boilers and dry bottom, wall-fired boilers. The rule 
provided that a cell burner boiler that is subject to SO2 
limits during 1995 through 1999 (i.e., Phase I of the Acid Rain 
Program) and that converted to the conventional burner configuration of 
a wall-fired boiler (i.e., through retrofitting with non-plug-in 
combustion controls) on or before January 1, 1995 is classified as a 
wall-fired boiler. 40 CFR 76.5(d).
    EPA also addressed this issue in the rulemaking under section 
407(b)(2) where EPA issued the December 19, 1996 rule that, among other 
things, set an emission limit for cell burner boilers. In the preamble 
of the proposed rule in that rulemaking, EPA stated that the 
replacement of the cells in a cell burner boiler by conventionally 
spaced burners ``essentially convert[s] the cell burner boiler to a 
conventional wall-fired boiler''. 61 FR 1442,1465 (1996). EPA proposed 
treating, as a cell burner boiler, any cell burner boiler (other than a 
Phase I boiler) that replaced its cells on or before the commencement 
of Phase II of the Acid Rain Program (i.e., January 1, 2000). 61 FR 
1480. One commenter submitted comments on this matter.
    Noting that the Agency was also considering an alternative that 
would classify, as wall-fired boilers, any cell burner boilers that 
converted their cells on or before November 15, 1990, the commenter 
opposed that alternative. The commenter noted that it originally 
constructed two of its units as cell burner boilers and that it 
installed non-plug-in combustion controls at the first unit in 1989 and 
at the second unit in 1991. The commenter argued that the two units 
are, as a technical matter, still cell burner boilers after conversion 
of their cells to conventionally spaced low NOX burners. 
According to the commenter, the two units should therefore be subject 
to the NOX emission

[[Page 55836]]

limit for cell burner boilers, not the more stringent NOX 
emission limit for wall fired boilers. The commenter urged that, for 
purposes of determining how to classify cell burner boilers that 
convert to conventionally spaced burners, EPA adopt a ``case-by-case 
policy wherein each installation is evaluated on its own merits.'' 
Docket Item IV-D-051 at 4.
    In response to these comments, the December 19, 1996 rule 
established the date of enactment of title IV (November 15, 1990) as 
the cutoff date for classifying converted cell burners as wall-fired 
boilers. Section 407 does not specifically address how to categorize 
cell burners that are converted so that they are no longer applying 
cell burner technology. EPA took the approach of applying the statutory 
boiler category of ``units applying cell burner technology'' as of the 
date of enactment of title IV. Under the December 19, 1996 rule, the 
commenter's unit with non-plug-in combustion controls installed in 1989 
is a wall-fired boiler with NOX limit of 0.46 lb/mmBtu, and 
the unit with non-plug-in combustion controls installed in 1991 is cell 
burner boiler with NOX limit of 0.68 lb/mmBtu.
    In response to petitions for review of the December 19, 1996 rule, 
the U.S. Court of Appeals for D.C. upheld all provisions of the rule 
except for the provision addressing the treatment of cell burner 
boilers with non-plug-in combustion controls as wall-fired boilers. 
Appalachian Power v. EPA, 135 F.3d 791, 822 (D.C. Cir. 1998). The Court 
vacated, and remanded that rule provision to EPA. Id. The Court 
explained that:

the fact that no retrofitted cell burner [i.e., no cell burner with 
non-plug-in combustion controls] can achieve the * * * emission 
limit [for wall-fired boilers] using only the technology Congress 
authorized for setting that limit (low NOX burner 
technology) is evidence that retrofitted cell burners are not the 
functional equivalent of wall-fired boilers, as measured by 
congressional concerns. 135 F.3d at 821.

    In today's action, EPA is revising the December 17, 1996 rule to 
remove the provision vacated by the Court in Appalachian Power and, in 
light of the Court's opinion, has decided to take no further action on 
this matter. As a result, boilers subject to the NOX limit 
starting in 2000 and originally constructed as cell burner boilers will 
be subject to the NOX limit for cell burner boilers, 
regardless of whether or when they are modified through the 
installation of non-plug-in combustion controls. Today's rule revision 
does not address or change in any respect the compliance dates, which 
are in the existing regulations and which the Court upheld in 
Appalachian Power, for any units subject to the NOX limits 
under the Acid Rain Program.

IV. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the 
Administrator must determine whether the regulatory action is 
``significant'' and therefore subject to Office of Management and 
Budget (OMB) review and the requirements of the Executive Order. The 
Order defines ``significant regulatory action'' as one that is likely 
to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, OMB has determined 
that today's final rule is not a ``significant regulatory action'' and 
therefore is not subject to OMB review.

B. Executive Order 12875: Enhancing Intergovernmental Partnerships

    Under Executive Order 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 or unless EPA consults with those governments. If EPA 
complies by consulting, Executive Order 12875 requires EPA 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 final rule does not create a mandate on State, local or 
tribal governments and does not impose any enforceable duties on these 
entities. EPA projects that the rule will affect only one boiler, by 
increasing the level of the boiler's NOX emission limit 
under title IV. Moreover, the boiler is not owned or operated by a 
State, local, and tribal government. Accordingly, the requirements of 
section 1(a) of Executive Order 12875 do not apply to this rule.

C. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, 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 unless EPA consults with 
those governments. If EPA complies by consulting, 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, Executive Order 13084 
requires EPA to develop an effective process permitting elected 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 final rule does not significantly or uniquely effect, or 
impose any substantial direct compliance costs on, the communities of 
Indian tribal governments. The rule does not impose any enforceable 
duties on these entities. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

D. Unfunded Mandates Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private

[[Page 55837]]

sector. Under section 202 of UMRA, EPA generally must prepare a written 
statement, including a cost-benefit analysis, before promulgating a 
proposed or final rule that includes a federal mandate that may result 
in expenditure by State, local, and tribal governments, in aggregate, 
or by the private sector, of $100 million or more in any one year. 
Section 205 generally requires that, before promulgating a rule for 
which a written statement must be prepared, EPA must identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator explains why that alternative was not adopted. Finally, 
section 203 requires that, before establishing any regulatory 
requirements that may significantly or uniquely affect small 
governments, EPA must have developed a small government agency plan. 
The plan must provide for notifying any potentially affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    Because today's rule is estimated to result in the expenditure by 
State, local, and tribal governments or the private sector of less than 
$100 million in any one year, the Agency has not prepared a budgetary 
impact statement or specifically addressed the selection of the least 
costly, most cost-effective, or least burdensome alternative. Because 
small governments will not be significantly or uniquely affected by 
this rule, the Agency is not required to develop a plan with regard to 
small governments.
    As discussed above, EPA projects that today's final rule will 
affect only one boiler, by increasing the level of the boiler's 
NOX emission limit under title IV. Moreover, the boiler is 
not owned or operated by a State, local, and tribal government.

E. Paperwork Reduction Act

    Today's final revisions to parts 72 and 73 will not impose any new 
information collection burden subject to the Paperwork Reduction Act 
(44 U.S.C. 3501, et seq.). OMB has previously approved the information 
collection requirements contained in the Acid Rain Nitrogen Oxides 
Emission Reduction Program regulations, 40 CFR part 76, under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. See 
OMB Control Number 2060-0258.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    Copies of the previously approved ICR may be obtained from the 
Director, Regulatory Information Division; EPA; 401 M St. SW (mail code 
2137); Washington, DC 20460 or by calling (202) 564-2740. Include the 
ICR and/or OMB number in any correspondence.

F. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq., 
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 government jurisdictions.
    As discussed above, EPA projects that today's final rule will 
affect only one boiler, by increasing the level of the boiler's 
NOX emission limit under title IV. Moreover, the boiler is 
not owned or operated by a small entity. For these reasons, EPA has 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities.

G. Applicability of Executive Order 13045: Children's Health Protection

    Executive Order 13045 (62 FR 19885, April 29, 1997) applies to any 
rule if EPA determines (1) that the rule is economically significant as 
defined under Executive Order 12866, and (2) that the environmental 
health or safety risk addressed by the rule has a disproportionate 
effect on children. If the regulatory action meets both criteria, EPA 
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 EPA.
    Today's final rule is not subject to Executive Order 13045, because 
the action is not economically significant and does not address an 
environmental health or safety risk that may disproportionately affect 
children.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub L. 104-113, Sec. 12(d) (15 U.S.C. 272 note), 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, or business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA requires EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    Today's final rule does not involve any technical standards that 
would require Agency consideration of voluntary consensus standards 
pursuant to section 12(d) of the NTTAA.

I. Submission to Congress and the General Accounting Office

    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 States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. Today's final rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 76

    Environmental protection, Acid rain program, Air pollution control, 
Electric utilities, Nitrogen oxides.


[[Page 55838]]


    Dated: October 5, 1999.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 76--[AMENDED]

    1. The authority citation for part 76 continues to read as follows:

    Authority: 42 U.S.C. 7601 and 7651, et seq.

    2. Section 76.6 is amended by removing from paragraph (a)(1) the 
words ``after November 15, 1990'' and the entire last sentence.

[FR Doc. 99-26658 Filed 10-14-99; 8:45 am]
BILLING CODE 6560-50-P