[Federal Register Volume 64, Number 208 (Thursday, October 28, 1999)]
[Proposed Rules]
[Pages 58008-58011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28216]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 217-148; FRL-6465-9]


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 
a revision to the California State Implementation Plan (SIP) for the 
San Joaquin Valley Unified Air Pollution Control District 
(``SJVUAPCD''). This revision concerns SJVUAPCD Rule 4354, which 
controls oxides of nitrogen (NOX) emissions from glass 
melting furnaces.
    The intended effect of proposing limited approval and limited 
disapproval of this rule is to regulate emissions of NOX in 
accordance with the requirements of the Clean Air Act, as amended in 
1990 (CAA or the Act). EPA's final action on this proposed rule will 
incorporate this rule into the federally approved SIP. EPA has 
evaluated 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 the revision, 
while strengthening the SIP, does not fully meet the CAA provisions 
regarding plan submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before November 29, 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.
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg Ave., Fresno, CA 93726.

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 approval into the California SIP is San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 
4354, Glass Melting Furnaces. Rule 4354 was submitted by the State of 
California to EPA on September 29, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted. Public Law 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. 
SJVUAPCD is classified as severe 1; therefore this area is 
subject to the RACT requirements of

[[Page 58009]]

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 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 4354, 
Glass Melting Furnaces, adopted by the SJVUAPCD on April 16, 1998. The 
State of California submitted this amended version of Rule 4354 to EPA 
on September 29, 1998. The rule was found to be complete on January 26, 
1999, 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 Rule 4354 specifies exhaust emission 
standards for NOX, carbon monoxide (CO), and VOCs, and was 
originally adopted as part of SJVUAPCD'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 purpose of assisting State and local agencies in developing 
NOX RACT rules, EPA prepared the NOX Supplement 
to the General Preamble. In the NOX Supplement, EPA provides 
preliminary guidance on how RACT will be determined for stationary 
sources of NOX emissions. While most of the guidance issued 
by EPA on what constitutes RACT for stationary sources has been 
directed towards application for VOC sources, much of the guidance is 
also applicable to RACT for stationary sources of NOX (see 
section 4.5 of the NOX Supplement). In addition, pursuant to 
section 183(c), EPA is issuing alternative control technique documents 
(ACTs), that identify alternative controls for all categories of 
stationary sources of NOX. The ACT documents will provide 
information on control technology for stationary sources that emit or 
have the potential to emit 25 tons per year or more of NOX. 
However, the ACTs will not establish a presumptive norm for what is 
considered RACT for stationary sources of NOX. In general, 
the guidance documents cited above, as well as other relevant and 
applicable guidance documents, have been set forth to ensure that 
submitted NOX RACT rules meet Federal RACT requirements and 
are fully enforceable and strengthen or maintain the SIP.
    The California Air Resources Board (CARB) has developed a guidance 
document entitled, ``Suggested Control Measure for the control of 
Nitrogen Emissions from Glass Melting Furnaces.'' EPA has used CARB's 
RACT Determination, dated September 5, 1980, in evaluating Rule 4354 
for consistency with the CAA's RACT requirements.
    There is currently a September 14, 1994 version of San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4354, 
Glass Melting Furnaces in the SIP. The 1994 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).
     Compliance and monitoring requirements including 
compliance schedule, reporting requirements, monitoring and record 
keeping, and test methods.
    The version of the rule submitted in 1998 contains the following 
significant modifications from the 1994 version:
     A new Tier 2 emissions limit reduces NOX 
emission levels for flat glass, container glass, and fiberglass 
furnaces and adds controls for CO and VOCs.
     A Bubbling option, CEMS (or alternate emissions monitoring 
with daily recordkeeping), and five year record retention requirements.
     Exemptions from emission control requirements on start-up 
have been increased for all furnaces with innovative controls to allow 
180 days from first glass pull, or 30 days after achieving 60% of 
capacity, whichever is later.
     Exemptions from emission control requirements have also 
been added for unlimited periods of time from the ``start of a change 
to initiate'' a start-up, shutdown, or idling.
     New ``Tier 2 controls'' compliance deadline at the first 
furnace rebuild after January 1, 1999.
     Source testing for each furnace, or furnace battery, shall 
occur each calender year, not more than every 18 months, but not sooner 
than every 6 months.
    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 4354 strengthens the SIP 
through the addition of enforceable measures such as record keeping, 
test methods, definitions, and more stringent compliance testing. The 
SJVUAPCD has projected that incorporation of Rule 4354 into the SIP 
would decrease the NOX emissions allowed by the SIP.
    EPA has evaluated San Joaquin Valley Unified Air Pollution Control 
District Rule 4354 for consistency with the CAA, EPA regulations, and 
EPA policy and has found that although SJVUAPCD Rule 4354 will 
strengthen the SIP, this rule contains deficiencies which must be 
corrected pursuant to the section 182(a)(2)(A) requirement of part D of 
the CAA.
     Section 3.17.3: Start-up definition: states: ``180 days 
following initial glass pull, or 30 days after the glass pull rate 
reaches 60 percent of the furnace's glass production capacity, 
whichever occurs later, for any furnace that uses a NOX 
control technique * * * '' Coupled with section 4.2, this would seem to 
allow for

[[Page 58010]]

an unlimited period of time for operations up to 60% glass production 
while exempt from compliance tests and possibly controls while at 
production temperatures. EPA policy generally does not allow automatic 
exemption from excess emissions during such periods. The District needs 
to demonstrate that RACT limits are to be in place at all possible 
times. Control systems need to be in operation and limits established 
as temperatures are increased to levels where NOX is made 
and before the furnace is at production levels. The time allowed to 
operate with exemption, at less than 60% of rated capacity, must be 
limited. 180 days start-up exemption seems excessive. The district 
should remove this exemption or demonstrate that it complies with CAA 
Sections 110(l) and 182 regarding rule relaxations and RACT.
     Section 4.2: Exemptions: states: (new text in italic) 
``The requirements of Section 5.0 shall not apply during periods of 
start-up, shutdown or idling. The period of exemption shall apply from 
the beginning of operational changes required to initiate idling, 
shutdown, or start-up. The owner shall comply with the requirements of 
Section 6.7 when performing such operations.''
    Initiation of operational changes allow the ``beginning of startup, 
idling and cool down'' exemptions, which could last forever. The 
requirements of section 6.7 do nothing to limit these periods. The 
duration of these periods must have finite limits. Clarifying 
statements are required on two issues: (1) that control systems must be 
in operation during these periods of exemption, and (2) that the 
exemption periods indicate the period of time allowed before a 
compliance test is required. Burner controls operate from the start, a 
SCR unit can start at 650 F., and a SNCR can begin operation at 1800 F. 
There should be stated limits for emission levels considered acceptable 
during the startup, idling and cool down periods. The first glass draw, 
when temperatures approach 2900 degrees F., should be allowed only if 
the system is in compliance with these limits. (See TSD referenced 
Guidance Document: State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown, U.S. EPA, Office 
of Air Quality Planning and Standards, September 20, 1999).
     Section 5.3: Tier 1 NOX emission limit 
Compliance Determination: The first equation should be reformatted to 
clarify that ``CF'' is in the numerator.
     Section 7.1: Compliance schedule: A final date for major 
NOX sources to adopt CEMS or alternate continuous monitoring 
methods should be specified to prevent avoidance of continuous 
monitoring by running forever without an official ``rebuild.''
     Section 7.2.3: Full compliance schedule: A final date for 
facilities to achieve the full Tier 2 compliance should be specified to 
prevent avoidance of controls by running forever without an official 
``rebuild.''
     Sections 9.0, 9.4, and 9.7: Aggregated NOX 
emissions: This is an 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.
    A detailed discussion of these deficiencies can be found in the 
Technical Support Document for Rule 4354, dated October 1, 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 SJVUAPCD's 
submitted Rule 4354 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 San Joaquin 
Valley Unified Air Pollution Control District and is currently in 
effect in the San Joaquin Valley Unified Air Pollution Control 
District. EPA's final limited disapproval action will not prevent the 
San Joaquin Valley Unified Air Pollution Control District or EPA from 
enforcing this 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, 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.

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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 recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: October 18, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-28216 Filed 10-27-99; 8:45 am]
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