[Federal Register Volume 74, Number 235 (Wednesday, December 9, 2009)]
[Proposed Rules]
[Pages 65042-65044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29351]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0711; FRL-9090-3]


Revisions to the California State Implementation Plan, 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 
revisions to the San Joaquin Valley Unified Air Pollution Control 
District (SJVAPCD) portion of the California State Implementation Plan 
(SIP). These revisions concern oxides of nitrogen (NOX) 
emissions from solid fuel fired boilers, steam generators and process 
heaters. We are proposing action on a local rule that regulates these 
emission sources under the Clean Air Act as amended in 1990 (CAA or the 
Act). We are taking comments on this proposal and plan to follow with a 
final action.

DATES: Any comments must arrive by January 8, 2010.

ADDRESSES: Submit comments, identified by docket number [EPA-R09-OAR-
2009-0711], by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at 
http:[sol][sol]www.regulations.gov, including any personal information 
provided, unless the comment includes Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through 
http:[sol][sol]www.regulations.gov or e-mail. 
http:[sol][sol]www.regulations.gov is an ``anonymous access'' system, 
and EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send e-mail directly to 
EPA, your e-mail address will be automatically captured and included as 
part of the public comment. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Idalia Perez, EPA Region IX, (415) 
972-3248, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revision?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What is the rule deficiency?
    D. EPA Recommendations To Further Improve the Rule
    E. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board.

                                             Table 1--Submitted Rule
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               Local agency                 Rule No.             Rule title               Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVAPCD..................................       4352  Solid Fuel Fired Boilers, Steam      05/18/06     10/05/06
                                                       Generators and Process Heaters.
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    On 10/24/06, EPA determined that the submittal for SJVAPCD Rule 
4352 met the completeness criteria in 40 CFR part 51 Appendix V, which 
must be met before formal EPA review.

B. Are there other versions of this rule?

    We approved an earlier version of Rule 4352 into the SIP on 
February 11,

[[Page 65043]]

1999 (64 FR 6803). We published a direct final approval of revisions to 
this rule, along with a parallel proposal, on May 30, 2007 (72 FR 
29886). We received adverse comments and withdrew the direct final 
approval of Rule 4352 on July 30, 2007 (72 FR 41450). Because we are 
reproposing today an alternative action on Rule 4352, we are not 
addressing comments or taking further action on the parallel proposal 
published on May 30, 2007 (72 FR 29901).

C. What is the purpose of the submitted rule revision?

    NOX emissions help produce ground-level ozone, smog and 
particulate matter, which harm human health and the environment. 
Section 110(a) of the CAA requires States to submit regulations that 
control NOX emissions. Rule 4352 limits NOX and 
carbon monoxide (CO) emissions from solid fuel fired boilers, steam 
generators and process heaters. SJVAPCD amended the rule to broaden its 
applicability and to strengthen the emission limits for NOX. 
EPA's technical support document (TSD) has more information about this 
rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

    Generally, NOX SIP rules must be enforceable (see 
section 110(a) of the Act), must require Reasonably Available Control 
Technology (RACT) for each major source of NOX emissions in 
nonattainment areas classified as moderate or above (see sections 
182(b)(2) and 182(f)), and must not relax existing requirements (see 
sections 110(l) and 193). The SJVAPCD regulates an ozone nonattainment 
area classified as extreme (1-hour standard) and serious (8-hour 
standard) (see 40 CFR part 81), so Rule 4352 must satisfy RACT 
requirements. Rule 4352 must also require the use of advanced control 
technologies to control NOX emission from this source 
category (see section 182(e)(3)).
    Guidance and policy documents that we use to evaluate 
enforceability and RACT requirements consistently include the 
following:
    1. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498, April 16, 1992 (the General Preamble); 57 FR 18070, April 28, 
1992 (Appendices).
    2. ``State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble; Clean Air Act Amendments of 1990 Implementation of 
Title I; Proposed Rule,'' 57 FR 55620, November 25, 1992 (the 
NOX Supplement).
    3. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    4. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    5. ``Determination of Reasonably Available Control Technology and 
Best Available Retrofit Control Technology for Industrial, 
Institutional, and Commercial Boilers, Steam Generators, and Process 
Heaters,'' CARB, July 18, 1991.
    6. ``Alternative Control Techniques Document--NOX 
Emissions from Industrial/Commercial/Institutional (ICI) Boilers,'' US 
EPA, 453/R-94-022, March 1994.
    7. ``Alternative Control Techniques Document--NOX 
Emissions from Utility Boilers,'' U.S. EPA, 453/R-94-023, March 1994.

B. Does the rule meet the evaluation criteria?

    SJVAPCD's revisions to Rule 4352 improve the SIP by expanding the 
rule's applicability provisions and establishing more stringent 
NOX emission limits. The rule is largely consistent with CAA 
requirements and EPA policy regarding enforceability and SIP 
relaxations. Rule 4352 also requires the use of advanced control 
technologies to control NOX emissions from this source 
category. Rule provisions which do not meet the evaluation criteria are 
summarized below and discussed further in the TSD.

C. What is the rule deficiency?

    The following provision does not satisfy the requirements of 
section 110 and part D of the Act and prevents full approval of the SIP 
revision.
    1. Section 5.1 of the Rule establishes the emission limits. With 
the exception of the NOX emission limit for biomass fuel-
fired units, SJVAPCD has not adequately demonstrated that the 
NOX emission limits (i.e., NOX limits for units 
burning municipal solid waste or other solid fuels, such as coal) 
satisfy RACT requirements. As explained further in the TSD for this 
proposed action, EPA's 1994 Alternative Control Techniques Document for 
NOX emissions from ICI Boilers contains lower emission 
ranges for such boilers. Source-specific information from the SJVAPCD 
also indicate that emission limits lower than those in Rule 4352 are 
reasonably achievable.

D. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that we recommend for 
the next time the local agency modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of the submitted rule to improve the SIP. 
If finalized, this action would incorporate the submitted rule into the 
SIP, including those provisions identified as deficient. This approval 
is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will be imposed under section 179 of the Act 
unless EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the disapproval. These sanctions would 
be imposed according to 40 CFR 52.31. A final disapproval would also 
trigger the 2-year clock for the federal implementation plan (FIP) 
requirement under section 110(c). Note that the submitted rule has been 
adopted by the SJVAPCD, and EPA's final limited disapproval would not 
prevent the local agency from enforcing it.
    We will accept comments from the public on the proposed limited 
approval and limited disapproval for the next 30 days.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. 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,

[[Page 65044]]

small not-for-profit enterprises, and small governmental jurisdictions.
    This 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).

D. Unfunded Mandates Reform Act

    Under sections 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action proposes to 
approve 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.

E. Executive Order 13132, Federalism

    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, 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.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. 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.

List of Subjects in 40 CFR Part 52

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

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

    Dated: November 19, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9-29351 Filed 12-8-09; 8:45 am]
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