Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Ventura County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 162-0098; FRL-6160-5]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Ventura County 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

a revision to the California State Implementation Plan (SIP) for ozone.

This revision concerns the control of oxides of nitrogen (NOx) from

boilers, steam generators, and process heaters. 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. This revision, while strengthening the SIP, does

not fully meet the CAA provisions regarding plan submissions and

requirements for nonattainment areas.

DATES: Comments on this proposed action must be received in writing on

or before October 14, 1998.

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:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

SW, Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.

Ventura County Air Pollution Control District, 669 County Square Drive,

Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office

(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for limited approval and limited

disapproval into the SIP is Ventura County Air Pollution Control

District (VCAPCD) Rule 74.15.1, Boilers, Steam Generators, and Process

Heaters. Rule 74.15.1 was submitted by the State of California to EPA

on October 13, 1995.

II. Background

On November 15, 1990, the Clean Air Act Amendments of 1990 were

enacted. Pub. L. 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 Clean Air Act.

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.

VCAPCD is classified as serious; 1 therefore this area is

subject to the RACT requirements of section 182(b)(2) and the November

15, 1992 deadline cited below.

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\1\ VCAPCD 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- or post-enactment control technologies guidelines (CTG)

document) by November 15, 1992. There are no pre- or post-enactment

NOX CTG documents. 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 Ventura County

Air Pollution Control District (VCAPCD) Rule 74.15.1, Boilers, Steam

Generators, and Process Heaters. VCAPCD adopted Rule 74.15.1 on June

13, 1995. The State of California submitted Rule 74.15.1 on October 13,

1995. The rule was found to be complete on November 28, 1995, pursuant

to EPA's completeness criteria

[[Page 49057]]

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. VCAPCD Rule 74.15.1 specifies exhaust emission

standards for NOX and carbon monoxide (CO). The rule was

adopted as part of VCAPCD'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

Notice'' (Blue Book) (notice of availability was published in the

Federal Register on May 25, 1988).

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For the purpose 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 all 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.

The California Air Resources Board (CARB), developed a guidance

document entitled Determination of Reasonably Available Control

Technology and Best Available Retrofit Control Technology for

Industrial, Institutional, and Commercial Boilers, Steam Generators,

and Process Heaters. EPA has used CARB's guidance document, dated July

18, 1991, in evaluating Rule 74.15.1 for consistency with the CAA's

RACT requirements.

There is currently no version of Ventura County Air Pollution

Control District (VCAPCD) Rule 74.15.1, Boilers, Steam Generators, and

Process Heaters in the SIP. The submitted rule includes the following

provisions:

General provisions including applicability, exemptions,

and definitions.

Exhaust emissions standards for oxides of nitrogen

(NOX) and carbon monoxide (CO).

Administrative and monitoring requirements including

compliance schedule, reporting requirements, monitoring and

recordkeeping, and test methods.

Rules submitted to EPA for approval as revisions to the SIP must be

fully enforceable, must maintain or strengthen the SIP, and must

conform with EPA policy in order to be approved by EPA. When reviewing

rules for SIP approvability, EPA evaluates enforceability elements such

as test methods, record keeping, and compliance testing in addition to

RACT guidance regarding emission limits. Rule 74.15.1 strengthens the

SIP through the addition of enforceable measures such as record

keeping, test methods, definitions, and more stringent compliance

testing. Because there is no existing SIP rule, the incorporation of

Rule 74.15.1 into the SIP would decrease the NOX emissions

allowed by the SIP. However, VCAPCD Rule 74.15.1 provides an automatic

exemption from compliance for emissions that occur during start-up,

shutdown, or under breakdown conditions. These conditions are not

defined in the rule. Such automatic exemptions are not allowed under

EPA policy as contained in the EPA policy memorandum signed by Kathleen

M. Bennett, ``Policy on Excess Emissions During Startup, Shutdown,

Maintenance and Malfunctions'', dated February 15, 1983. In order to be

consistent with EPA policy, Rule 74.15.1 must be modified to either

eliminate this exemption, or to define the conditions of its

applicability to conform with the February 15, 1983 memorandum. A more

detailed discussion of EPA's evaluation of VCAPCD Rule 74.15.1 can be

found in the Technical Support Document, dated August 18, 1998,

prepared by EPA for this rule.

Although the emission limits, monitoring, and recordkeeping

provisions of VCAPCD Rule 74.15.1 will strengthen the SIP, this rule is

deficient with respect to the automatic exemption from compliance for

emissions that occur during start-up, shutdown, or under breakdown

conditions. Because of this deficiency, 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 VCAPCD's submitted Rule 74.15.1 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

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under section 110(c). It should be noted that the rule covered by this

document has been adopted and is currently in effect in Ventura County.

EPA's final limited disapproval action will not prevent the VCAPCD or

EPA from enforcing this rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic and environmental factors and in

relation to relevant statutory and regulatory requirements.

V. Administrative Requirements

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

The proposed rule is not subject to E.O. 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

E.O. 12866.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under sections 110 and 301, and subchapter I, part D

of the CAA do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its action 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).

C. 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

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 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 approves pre-

existing requirements under State or local law, and imposes no new

Federal 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. 7401-7671q.

Dated: September 2, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 98-24608 Filed 9-11-98; 8:45 am]

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