[Federal Register Volume 77, Number 39 (Tuesday, February 28, 2012)]
[Proposed Rules]
[Pages 11992-11995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4737]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0089; FRL-9638-5]


Revisions to the California State Implementation Plan, 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 Mojave Desert Air Quality Management District (MDAQMD) 
portion of the California State Implementation Plan (SIP). These 
revisions concern oxides of nitrogen (NOX) emissions from 
stationary gas turbines. 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 March 29, 2012.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0089, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. Email: [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 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 www.regulations.gov or email. 
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 email directly to EPA, your email 
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 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 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.

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

[[Page 11993]]

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?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule deficiencies?
    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 (CARB).

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
            Local agency                  Rule No.            Rule title            Amended         Submitted
----------------------------------------------------------------------------------------------------------------
MDAQMD..............................            1159   Stationary Gas Turbines        09/28/09         05/17/10
----------------------------------------------------------------------------------------------------------------

    On June 8, 2010, the submittal for MDAQMD Rule 1159 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 this rule?

    We approved an earlier version of Rule 1159 into the SIP on April 
9, 1996 (61 FR 15719).

C. What is the purpose of the submitted rule?

    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 1159 regulates emissions of 
NOX and carbon monoxide (CO) from non-utility stationary gas 
turbine systems with ratings equal to or greater than 0.3 megawatts 
(MW). 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, 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 nonattainment areas (see 
sections 182(a)(2) and 182(f)), and must not relax existing 
requirements (see sections 110(l) and 193). In addition, SIP rules must 
implement Reasonably Available Control Measures (RACM), including RACT, 
in moderate PM nonattainment areas, and Best Available Control Measures 
(BACM), including Best Available Control Technology (BACT), in serious 
PM nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)). The 
MDAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so 
Rule 1159 must fulfill RACT. In addition, the MDAQMD regulates a PM 
nonattainment area classified as moderate (see 40 CFR part 81), so Rule 
1159 must implement RACM.
    Guidance and policy documents that we use to evaluate 
enforceability, RACT and RACM 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); 57 FR 18070 (April 28, 1992).
    2. ``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.
    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. ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998, August 
16, 1994.
    6. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
    7. ``Alternative Control Technology Document, NOX 
Emissions from Stationary Gas Turbines,'' U.S. EPA, 453/R-93-007, 
January 1993.
    9. ``Determination of Reasonably Available Control Technology and 
Best Available Retrofit Control Technology for the Control of Oxides of 
Nitrogen from Stationary Gas Turbines,'' California Air Resources 
Board, May 18, 1992.
    10. ``Status Report on NOX Controls for Gas Turbines, 
Cement Kilns, Boilers, and Internal Combustion Engines,'' Northeast 
States for Coordinated Air Use Management, December 2000.

B. Does the rule meet the evaluation criteria?

    Rule 1159 improves the SIP by establishing more stringent emission 
limits and expanding the applicability of the rule to include units in 
the attainment area of the District. The rule is largely consistent 
with the relevant policy and guidance regarding enforceability, RACT 
and SIP relaxations. Rule provisions which do not meet the evaluation 
criteria are summarized below and discussed further in the TSD.

C. What are the rule deficiencies?

    The following provision conflicts with section 110 and part D of 
the Act and prevents full approval of the SIP revision. Section D.3 
exempts the Southern California Gas Company General Electric Model 
Frame 3 turbine located in Kelso, California from testing requirements. 
This undermines enforceability of the rule which contradicts CAA 
requirements for enforceability.

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). Neither sanctions nor 
a Federal Implementation Plan (FIP) would be imposed should EPA 
finalize this limited disapproval. Sanctions would not be imposed under 
CAA 179(b) because the deficiency pertains

[[Page 11994]]

to provisions of Rule 1159 that are discretionary (i.e., not required 
to be included in the SIP), and EPA would not promulgate a FIP in this 
instance under CAA 110(c)(1) because the disapproval does not reveal a 
deficiency in the SIP for the area that such a FIP must correct. 
Specifically, the disapproval pertains to requirements only applicable 
in the portion of the MDAQMD that is classified as attainment for ozone 
and which thus does not have RACT requirements per CAA 182(a)(2) and 
182(f). Accordingly, the failure of the MDAQMD to adopt revisions to 
Rule 1159 would not adversely affect the SIP's compliance with the 
CAA's mandated requirements, such as the requirements for section 182 
ozone RACT, reasonable further progress, and attainment demonstrations.
    Note that the submitted rule has been adopted by the MDAQMD, and 
EPA's final limited disapproval would not prevent the local agency from 
enforcing it. The limited disapproval also would not prevent any 
portion of the rule 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.
    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 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.

[[Page 11995]]

    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 proposes to 
approve 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.

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: February 15, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-4737 Filed 2-27-12; 8:45 am]
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