[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Proposed Rules]
[Pages 40303-40306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17262]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0396; FRL-9432-2]


Revisions to the California State Implementation Plan, South 
Coast 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 South Coast Air Quality Management District (SCAQMD) 
portion of the California State Implementation Plan (SIP). These 
revisions concern oxides of nitrogen (NOX) emissions from 
boiler, steam generators and process heaters larger than 2 MMBtu/hour 
that are not subject to RECLAIM. We are proposing action on local rules 
that regulate 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 August 8, 2011.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2011-0396, 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://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://www.regulations.gov or e-mail. http://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: Generally, documents in the docket for this action are 
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 at http://www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps), 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.

[[Page 40304]]

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA Recommendations to further Improve the Rules
    E. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency                   Rule No.                Rule title             Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD..............................  1146                Emissions of Oxides of           09/05/08     07/20/10
                                                           Nitrogen from Industrial,
                                                           Institutional, and
                                                           Commercial Boilers, Steam
                                                           Generators and Process
                                                           Heaters.
SCAQMD..............................  1146.1              Emissions of Oxides of           09/05/08     07/20/10
                                                           Nitrogen from Small
                                                           Industrial, Institutional,
                                                           and Commercial Boilers,
                                                           Steam Generators and
                                                           Process Heaters.
----------------------------------------------------------------------------------------------------------------

    On August 25, 2010, the submittal for SCAQMD Rules 1146 and 1146.1 
was found to meet the completeness criteria in 40 CFR part 51 appendix 
V, which must be met before formal EPA review.

B. Are there other versions of these rules?

    We approved an earlier version of Rule 1146 into the SIP on April 
8, 2008 (67 FR 16640) and of Rule 1146.1 on September 6, 1995 (60 FR 
46220).

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

    NOX helps 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 1146 limits NOX and 
carbon monoxide (CO) emissions from boilers, steam generators and 
process heaters with a total rated heat input larger than 5 MMBtu/hour. 
Rule 1146.1 limits NOX and CO emissions from boilers, steam 
generators and process heaters with a total rated heat input larger 
than 2 MMBtu/hour and less than 5 MMBtu/hour. EPA's technical support 
documents (TSD) have more information about these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
each category of sources covered by a Control Techniques Guidelines 
(CTG) document as well as each major source in certain ozone 
nonattainment areas (see sections 182(b)(2) and 182(f)), must not 
interfere with any applicable requirements concerning attainment and 
reasonable further progress (RFP) or any other applicable requirement 
of the Act (CAA 110(l)) or modify, in a nonattainment area, any SIP-
approved control requirement in effect before November 15, 1990 (CAA 
193). Section 172(c)(1) of the Act also requires implementation of all 
reasonably available control measures (RACM) as expeditiously as 
practicable in nonattainment areas. Because the area regulated by 
SCAQMD is designated nonattainment for the fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS) and designated 
and classified as extreme nonattainment for the ozone NAAQS (see 40 CFR 
81.305), Rules 1146 and 1146.1 must ensure RACT. Additionally, the RACM 
requirement in CAA section 172(c)(1) applies to this area.
    Guidance and policy documents that we use to evaluate 
enforceability, RACT and RACM requirements consistently include the 
following:
    1. ``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), 57 FR 55620, 
November 25, 1992.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``Clean Air Fine Particle Implementation Rule,'' 72 FR 20586, 
April 25, 2007.
    5. ``Credible Evidence Revisions; Final Rule,'' 62 FR 8314, 
February 24, 1997.
    6. ``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.
    7. ``Alternative Control Techniques Document--NOX 
Emissions from Industrial/Commercial/Institutional (ICI) Boilers'', 
U.S. EPA, March 1994.
    8. ``Alternative Control Techniques Document--NOX 
Emissions from Utility Boilers'', U.S. EPA, March 1994.
    9. ``Review of State Implementation Plans and Revisions for 
Enforceability and Legal Sufficiency'', Memorandum from J. Craig 
Potter, Thomas L. Adams Jr., Francis S. Blake, U.S. EPA, September 23, 
1987.
    10. ``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup and Shutdown'', Memorandum from 
Steven A. Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, September 20, 1999.

B. Do the rules meet the evaluation criteria?

    Rules 1146 and 1146.1 improve the SIP by establishing more 
stringent emission limits. The rules are largely consistent with the 
relevant policy and guidance regarding enforceability, RACT and SIP 
relaxations. We believe that in implementing RACT for NOX, 
the submitted rules also satisfy RACM requirements for NOX 
as a PM2.5 precursor. Rule provisions which do not meet the 
evaluation criteria are summarized below and discussed further in the 
TSD.

C. What are the rule deficiencies?

    These provisions in Rule 1146 conflict with section 110 and part D 
of the Act and prevent full approval of the SIP revision. Section 
(d)(8) and Section (d)(10) preclude the use of both source test data 
and portable analyzers test results from being used to prove a 
violation of the emission standard. This

[[Page 40305]]

contradicts CAA requirements for enforceability and the national 
credible evidence rule from 1997 (62 FR 8314).
    These provisions in Rule 1146.1 conflict with section 110 and part 
D of the Act and prevent full approval of the SIP revision. Section 
(d)(7) and Section (d)(9) preclude the use of both source test data and 
portable analyzers test results from being used to prove a violation of 
the emission standard. This contradicts CAA requirements for 
enforceability and the national credible evidence rule from 1997 (62 FR 
8314).

D. EPA Recommendations To Further Improve the Rules

    The TSDs describe additional rule revisions that we recommend for 
the next time the local agency modifies the rules.

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 rules to improve the SIP. 
If finalized, this action would incorporate the submitted rules into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rules under sections 110(k)(3) and 301(a). The South 
Coast AQMD has included these rules in the demonstration, required by 
CAA section 172(c)(1), that its SIP provides for the implementation of 
RACM as necessary to attain the 8-hour ozone and PM2.5 NAAQS 
as expeditiously as practicable. While we are proposing to find that 
the rules provide RACM level controls, we are also proposing to find 
that certain provisions of the rules raise enforcement concerns. 
Because of these concerns and the District's inclusion of these rules 
in its CAA-required RACM demonstration, 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 rules have 
been adopted by the SCAQMD, and EPA's final limited disapproval would 
not prevent the local agency from enforcing them. The limited 
disapproval also would not prevent any portion of the rules from being 
incorporated by reference into the Federally enforceable SIP as 
discussed in a July 9, 1992 EPA memo found at: http://www.epa.gov/nsr/ttnnsr01/gen/pdf/memo-s.pdf.
    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, 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 or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the State is already imposing. Therefore, because the proposed Federal 
SIP limited approval/limited disapproval 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 limited approval/limited disapproval 
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 and disapprove 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.

[[Page 40306]]

    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 proposes to approve or disapprove State rules 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 state 
rules 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.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 21, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-17262 Filed 7-7-11; 8:45 am]
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