[Federal Register Volume 65, Number 42 (Thursday, March 2, 2000)]
[Proposed Rules]
[Pages 11275-11278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5041]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 154-0211; FRL-6544-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the California State Implementation Plan (SIP) for ozone. 
These revisions concern the control of oxides of nitrogen 
(NOX) from cement kilns. 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 this rule and is proposing a 
simultaneous limited approval and limited disapproval under provisions 
of the CAA regarding EPA actions on SIP submittals and general 
rulemaking authority because these revisions, while strengthening the 
SIP, also do not fully meet the CAA provisions regarding plan 
submissions and requirements for nonattainment areas.

[[Page 11276]]


DATES: Comments on this proposed action must be received in writing on 
or before April 3, 2000.

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:

Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite 
200, Victorville, CA 92392-2383
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812

FOR FURTHER INFORMATION CONTACT: Max Fantillo, Rulemaking Office (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1183.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for limited approval and limited 
disapproval into the SIP is Mojave Desert Air Quality Management 
District (MDAQMD) Rule 1161, Portland Cement Kilns. This rule was 
submitted by the California Air Resources Board (CARB) to EPA on June 
29, 1995.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA) 
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 CAA. On November 
25, 1992, EPA published a proposed rule entitled, ``State 
Implementation Plans; Nitrogen Oxides Supplement to the General 
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; 
Proposed Rule,'' (the NOX Supplement) which describes and 
provides preliminary guidance on the requirements of section 182(f). 
The November 25, 1992, action should be referred to for further 
information on the NOX requirements and is incorporated into 
this document by reference.
    Section 182(f) of the Clean Air Act requires States to apply the 
same requirements to major stationary sources of NOX 
(``major'' as defined in section 302 and sections 182(c), (d), and (e)) 
as are applied to major stationary sources of volatile organic 
compounds (VOCs), in moderate or above ozone nonattainment areas. The 
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) and the November 15, 1992 deadline, cited below.
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    \1\Southeast Desert Air Basin managed by MDAQMD 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 MDAQMD, Rule 
1161, Portland Cement Kilns. MDAQMD adopted Rule 1161 on June 28, 1995. 
The State of California submitted this rule on June 29, 1995. Rule 1161 
was found to be complete on July 3, 1995 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. Rule 1161 controls emissions of oxides of 
nitrogen (NOX) from portland cement kilns within MDAQMD 
area. The rule was 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 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). EPA's interpretation of these requirements, 
which forms the basis for this action, appears in the NOX 
Supplement (57 FR 55620) and various other EPA policy guidance 
documents.\3\ Among these provisions is the requirement that a 
NOX rule must, at a minimum, provide for the implementation 
of RACT for stationary sources of NOX emissions.
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    \3\Among other things, the pre-amendment guidance consists of 
those portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues 
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, 
Clarification to Appendix D of November 24, 1987 Federal Register 
document'' (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 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.
    There is currently no version of MDAQMD's Rule 1161, Portland 
Cement Kilns, in the SIP. The submitted rule includes the following 
provisions: applicability, exemptions, emission limits, compliance 
determination, compliance alternative, test methods, monitoring and 
recordkeeping, and compliance schedule.
    With exception of the deficiencies discussed below, EPA has 
determined that the emission limits and other provisions of Rule 1161 
meet the RACT requirement of section 182(b). Although Rule 1161, 
Portland Cement Kilns, will strengthen the SIP, this rule contains the

[[Page 11277]]

following appendix D/RACT deficiencies:
     The Alternative Compliance Strategy (ACS) is not 
approvable as written because it lacks substantive detail. ACS 
provisions must be consistent with the EPA Emissions Trading Policy 
Statement (ETPS), the Economic Incentive Program Rules (EIP), and EPA 
policies regarding alternative control and alternative methods of 
compliance. The EIP and other EPA policies require bubble provisions to 
meet, among other things, a 10 percent (%) or greater reduction in 
emissions beyond the established baseline.
     The rule allows exemption from the emission limits during 
start-up/shutdown(su/sd). EPA policy on excess emissions during su/sd 
generally disallows automatic exemption from emission limits during 
these periods. Automatic exemptions might aggravate ambient air quality 
by excusing excess emissions that cause or contribute to a violation of 
an ambient air quality standard.
     The rule references submitted Rule 430 which is not State 
Implementation Plan (SIP) approved. Referenced rules must be SIP 
approved.
    A more detailed discussion of the sources controlled, the controls 
required, justification for why these controls represent RACT, and the 
rule deficiencies can be found in the Technical Support Document (TSD), 
dated December 29, 1999.
    Because of the above 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 MDAQMD'S submitted Rule 1161 under sections 110(k)(3) and 
301(a) of the CAA as meeting the requirements of section (110)(a) and 
part D. At the same time, EPA is also proposing a limited disapproval 
of 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), and part D of the CAA. Under section 179(a)(2), if 
the Administrator disapproves a submission under section 110(k) for an 
area designated nonattainment, based on the submission's failure to 
meet one or more of the elements required by the Act, the Administrator 
must apply one of the sanctions set forth in section 179(b) unless the 
deficiency has been corrected within 18 months of such disapproval. 
Section 179(b) provides two sanctions available to the Administrator: 
highway funding and offsets. The 18 month period referred to in section 
179(a) will begin on the effective date of EPA's final limited 
disapproval. Moreover, the final disapproval triggers the Federal 
implementation plan (FIP) requirement under section 110(c). It should 
be noted that the rule covered by this document has been adopted by the 
MDAQMD and is currently in effect in the MDAQMD area. EPA's final 
limited disapproval action will not prevent MDAQMD 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 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 Executive 
Order 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 
Executive Order 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 
Executive Order 13045 because it is 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 
Executive Order 13084 do not apply to this rule.

[[Page 11278]]

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, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 17, 2000.
Felicia Marcus,
Regional Administrator Region IX.
[FR Doc. 00-5041 Filed 3-1-00; 8:45 am]
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