[Federal Register Volume 65, Number 171 (Friday, September 1, 2000)]
[Rules and Regulations]
[Pages 53181-53185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22379]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 217-024B; FRL-6852-5]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the San Joaquin Valley Unified Air Pollution Control 
District (SJVUAPCD) portion of the California State Implementation Plan 
(SIP). This action was proposed in the Federal Register on October 28, 
1999 and concerns Oxide of Nitrogen (NOX) emissions from 
glass melting plants. Under authority of the Clean Air Act as amended 
in 1990 (CAA or the Act), this action simultaneously approves local 
rules that regulate these emission sources and directs California to 
correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on October 2, 2000.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted rule revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 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 East 
Gettysburg Ave., Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office (AIR-4), 
U.S. Environmental Protection Agency, Region IX, (415) 744-1160.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

[[Page 53182]]

I. Proposed Action

    On October 28, 1999 (64 FR 58008), EPA proposed a limited approval 
and limited disapproval of the following rule that was submitted for 
incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
                Local agency                    Rule                Title                 Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD....................................     4354  Glass Melting Furnaces.........     04/16/98     09/29/98
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
    1. The broad start-up exemption in section 4.2 and 3.17.
    2. The broad idling exemption in section 4.2 and 3.8.
    3. The broad shut-down exemption in section 4.2 and 3.16.
    4. The first equation in section 5.3.
    5. The lack of final compliance dates in section 7.
    6. The averaging provisions in section 9.
    Our proposed action contains more information on the rule and our 
evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. On 
December 13, 1999 (64 FR 69448) we reopened this comment period for an 
additional 16 days. During the comment period, we received comments 
from the following parties.
    1. David Jones, SJVUAPCD; letter dated December 28, 1999.
    2. James Benney, Primary Glass Manufacturers Council (PGMC); letter 
dated November 24, 1999.
    3. D.K. Green, PPG Industries, Inc. (PPG); letter dated November 
24, 1999.
    4. Phillip Newell, Guardian Industries Corporation (GIC); letter 
dated December 22, 1999.
    5. Peter Okurowski, California Environmental Associates; letter 
dated December 29, 1999 for the Glass Packaging Institute (GPI).
    The comments and our responses are summarized below.
    Comment #1: Most of the commenters in some fashion commented that 
the start-up, idling, and/or shutdown exemptions in section 4.2 are 
necessary and that EPA's concerns with them are ill-founded because 
facilities have incentive to minimize their duration.
    EPA Response: EPA appreciates that some variation in emission or 
operating requirements may be appropriate during these periods. 
However, the Clean Air Act specifically requires that any emissions 
limitations approved into the SIP be enforceable. 42 U.S.C. 37410 
(a)(2)(A). In addition, 40 CFR part 51, appendix V, requires any rules 
approved into a SIP to contain ``Compliance/enforcement strategies, 
including how compliance will be determined in practice.'' EPA has 
interpreted these statutory and regulatory requirements in its excess 
emissions policy. EPA has found that provisions like section 4.2 must 
include enforceable temporal and quantitative limitations tailored to 
minimize emissions from the specific affected sources. Some of the 
comments (e.g., PPG) provided information that may be useful if San 
Joaquin wishes to demonstrate why relatively long excess emission 
periods are appropriate for glass furnaces. None of the comments, 
however, demonstrate that section 4.2 will minimize the time and amount 
of excess emissions. We are particularly, although not solely, 
concerned that section 4.2 could allow some excess emissions to occur 
indefinitely and without requiring any efforts (e.g., operation of 
monitoring and control equipment) to reduce emissions. For these 
reasons, EPA has determined that section 4.2 is a deficiency because it 
is inconsistent with the enforceability requirements of CAA section 
110(a)(2)(A).
    Comment #2: SJVUAPCD commented that the 180-day start-up exemption 
is at least as stringent as similar provisions that EPA has approved in 
New Source Performance Standards (i.e., 40 CFR 60.8a) and various state 
permits.
    EPA Response: 40 CFR 60.8a does not exempt sources from all 
emission requirements during a 180-day start-up period as does Rule 
4354. Exemptions in the referenced state permits should have been 
issued based on demonstrations that any start-up exemptions were 
appropriate for the specific permitted technologies. Thus, for the 
reasons explained in response to Comment #1, EPA disagrees with this 
comment and continues to find the rule deficient because it lacks 
enforceability required by the CAA section 110(a)(2)(A).
    Comment #3: SJVUAPCD commented that Rule 4354's start-up exemption 
complies with the various requirements of EPA's excess emissions 
policy.
    EPA Response: EPA's excess emissions policy contains limited 
exemptions for specific technologies. Rule 4354's start-up exemption, 
however, is not limited to specific technologies because ``innovative 
technologies'' is not defined. In addition, as discussed in response to 
Comment #1, nothing in the rule requires that emissions be minimized 
during start-up (e.g., requiring the control equipment be operational). 
Because these two threshold requirements for enforceability as 
interpreted in EPA's excess emissions policy are clearly not met, we 
are not evaluating the remainder of this comment regarding compliance 
with the other requirements. In summary, EPA disagrees with the comment 
and continues to find the rule deficient because it lacks 
enforceability required by the CAA section 110(a)(2)(A).
    Comment #4: GIC disagreed with EPA's statement that, ``burner 
controls operate from the start, a SCR unit can start at 650 F., and a 
SNCR can begin operation at 1800 F.''
    EPA Response: This statement was part of our explanation for why 
Rule 4354's start-up exemption is overly broad. Regardless of the 
comment, our point remains that the rule does not comply with the 
statutory and regulatory requirements for enforceability because 
sources are not required to minimize emissions, temporally and 
quantitatively, during start-up. While sources may not be able to 
achieve the Rule's Tier II emissions limitations during start-up, we 
believe some quantitative emission limits and/or operation requirements 
are appropriate and that the period for such a condition must be 
limited. Without such limitations, the rule fails to comply with the 
CAA enforceability requirements.
    Comment #5: GPI commented that an annual emission limit can be 
inferred from Rule 4354 and individual facility permits, and that 
emissions during start-up and other exemption periods will not cause 
exceedance of this annual limit.

[[Page 53183]]

    EPA Response: Rule 4354 establishes emission limits averaged over 
three hours. There is no provision in the rule allowing compliance with 
these limits to be averaged over a year, and we would consider any 
attempt to do so as a significant rule relaxation. In addition, there 
is currently nothing in the start-up or other exemptions that would 
restrict emissions to a theoretical annual emission limit or any other 
limit. For the reasons discussed in more detail above, the rule is 
deficient and EPA is finalizing this limited approval and limited 
disapproval.
    Comment #6: GPI commented that RACT control systems are in place at 
all times, presumably including start-up periods.
    EPA Response: Nothing in the rule currently requires operation of 
RACT or any other control systems during start-up. Such a requirement 
would, however, help address EPA's concern with the rule's existing 
start-up exemption.
    Comment #7: GPI commented that facilities using alternatives to 
CEMS will test emissions many times during the first 90 days of 
operation.
    EPA Response: EPA has determined that the rule is deficient because 
it fails to meet enforceability requirements unless the rule contains 
temporal and quantitative emission limits during start-up, regardless 
of how often facilities test emissions.
    Comment #8: GPI would support modifying Rule 4354 to limit the 
period of, ``beginning operational changes'' to 24 hours.
    EPA Response: EPA is not concerned with limiting the duration of 
the period of ``beginning operational changes,'' but with limiting the 
duration of the idling and other exemptions themselves.
    Comment #9: GPI would support modifying Rule 4354 to require some 
degree of additional monitoring during periods of startup and idling to 
further assure EPA and SJVUAPCD that NOX emissions do not 
increase during these periods.
    EPA Response: No changes to EPA's action is recommended, so no 
response required.
    Comment #10: PGMC and PPG commented that the idling exemption is 
only intended to apply when a facility needs to make repairs to their 
furnace.
    EPA Response: Rule 4354 should be revised so that idling is 
expressly limited to those times where there is a sudden and 
unforeseeable breakdown that requires repairs. Also, the rule should be 
revised so that excess emissions that result from a breakdown are not 
exempt. Instead, the revised rule may be approvable if it provides that 
facilities may demonstrate an affirmative defense against penalties as 
recommended in EPA's September 20, 1999 excess emissions policy that 
interprets the enforcibility requirement of CAA section 110(a)(2)(A).
    Comment #11: SJVUAPCD commented that EPA's interpretation of the 
sign ``/'' in the equation of section 5.3 is incorrect, and there is no 
need to reformat the equation to clarify that ``CF'' is a numerator.
    EPA Response: EPA and the District agree on the purpose of this 
equation, and EPA does not intend to withhold approval of the rule on 
this issue alone. However, we think the equation as written could be 
misinterpreted, and we recommend it be reformatted for greater clarity.
    Comment #12: Several commenters provided information to the affect 
that there is no need to establish a final compliance date to prevent 
avoidance of controls by running without a rebuild, because furnaces 
cannot operate forever without a rebuild.
    EPA Response: For purposes of complying with the enforceability 
requirements of CAA section 110(a)(2)(A), we believe the District must 
provide a compliance trigger in the rule that is linked to furnace 
rebuild. However, while it is unlikely that the District and a facility 
will disagree on whether a triggering rebuild has occurred, we 
recommend eliminating this possibility by establishing a final 
compliance date by which the rule will enforceably require all furnaces 
to be rebuilt.
    Comment #13: GPI would support modifying Rule 4354 to mandate 
compliance with the Tier 2 monitoring requirements and standards by a 
specified date.
    EPA Response: No changes to EPA's proposed action recommended, so 
no response required.
    Comment #14: SJVUAPCD commented that the alternative compliance 
option in Rule 4354 should not be treated as an economic incentive 
programs (EIP) and subjected to the requirements of EPA's EIP policies.
    EPA Response: At least since issuance of the Emissions Trading 
Policy Statement (ETPS) on December 4, 1986 (51 FR 43814), EPA has 
consistently required averaging programs such as the alternative 
compliance option provided in Rule 4354, to meet EIP policy and 
guidance. Therefore, EPA disagrees with the comment and has determined 
that the rule language is deficient because it fails to require 
additional environmental benefit in conjunction with an averaging 
program.
    Comment #15: GPI commented that EPA's EIP and related policies 
should not apply to facilities that duct multiple furnaces to a single 
stack for reasons other than averaging.
    EPA Response: Facilities manifolding multiple furnaces and 
monitoring emissions at a single stack are effectively averaging, 
regardless of whether that is their purpose. Such facilities have the 
advantage of being able to offset high emitting units with low ones and 
are, therefore, subject to EIP and related requirements including the 
10% environmental benefit.
    Comment #16: GIC commented that EPA should not object to Rule 4354 
because it meets all federal regulations.
    EPA Response: As discussed in our proposal and further explained in 
our response to the comments on the proposal, several components of the 
rule do not comply with section 110, particularly the enforceability 
requirement in section 110(a)(2)(A), and part D of the federal Clean 
Air Act. The rule, therefore, does not comply with the CAA requirements 
and is not fully approvable.
    Comment #17: GIC commented that EPA's concerns are not constructive 
at this time, and that EPA should have learned about the glass industry 
and raised its concerns during development of Rule 4354 from 1996-1998.
    EPA Response: EPA regrets that the deficiencies raised in our 
proposed limited disapproval were not addressed during rule 
development. However, section 110 of the Clean Air Act prohibits us 
from approving SIP rules that violate federal requirements.
    Comment #18: GPI asked that any revisions made to Rule 4354 as a 
result of this limited disapproval be approved by EPA quickly. GPI 
stated its understanding that all sections of the rule not identified 
as having deficiencies are acceptable to EPA.
    EPA Response: If SJVUAPCD submits a revised rule that adequately 
corrects the deficiencies cited as the basis for our limited 
disapproval, EPA intends to fully approve the rule amendments and to 
discontinue the CAA section 179 sanctions clock expeditiously.

III. EPA Action

    EPA has carefully considered and evaluated all of the comments. For 
the reasons stated above, however, we still consider the provisions of 
the rule cited in our proposal to be deficient, but that the rule 
overall strengthens the SIP. Therefore, as authorized in sections 
110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval 
of the submitted rule. This action incorporates the submitted rule into 
the California

[[Page 53184]]

SIP, including those provisions identified as deficient. As authorized 
under section 110(k)(3), EPA is simultaneously finalizing a limited 
disapproval of the rule. As a result, sanctions will be imposed unless 
CARB submits and EPA approves, amendments to Rule 4354 that correct the 
rule deficiencies within 18 months of the effective date of this 
action. These sanctions will be imposed under section 179 of the Act as 
described in 59 FR 39832 (August 4, 1994). In addition, EPA must 
promulgate a federal implementation plan (FIP) under section 110(c) 
unless we approve subsequent SIP revisions that correct the rule 
deficiencies within 24 months. Note that the submitted rule has been 
adopted by the SJVUAPCD, and EPA's final limited disapproval does not 
prevent the local agency from enforcing it.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13045

    Executive Order 13045, entitled 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 does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. 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 affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, 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 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.

D. Executive Order 13132

    Executive Order 13121, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132 (64 FR 
43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. Thus, the requirements of section 6 of the Executive Order 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

[[Page 53185]]

is consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United 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. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 31, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: August 4, 2000.
John Wise,
Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart F--California

    2. Section 52.220 is amended by adding paragraph (c)(266)(i)(B) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (266) * * *
    (i) * * *
    (B) San Joaquin Valley Unified Air Pollution Control District.
    (2) Rule 4354, adopted on April 16, 1998.
* * * * *
[FR Doc. 00-22379 Filed 8-31-00; 8:45 am]
BILLING CODE 6560-50-P