Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; El Dorado County Air Pollution Control District (EDCAPCD)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 083-4-0122a; FRL -6336-3]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; El Dorado County Air Pollution

Control District (EDCAPCD)

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). The El

Dorado County Air Pollution Control District (EDCAPCD), Rule 229

concerns control of emissions of oxides of nitrogen (NOX)

from industrial, institutional, and commercial boilers, steam

generators, and process heaters.

The intended effect of proposing limited approval and limited

disapproval of this rule is to regulate emissions of Oxides of Nitrogen

in accordance with the requirements of the Clean Air Act, as amended in

1990

[[Page 24120]]

(CAA or the Act). EPA's final action on this proposed rule will

incorporate this rule into the federally approved SIP. EPA has

evaluated the rule and is proposing a simultaneous limited approval and

limited disapproval under provisions of the CAA regarding EPA action on

SIP submittals and general rulemaking authority because these

revisions, while strengthening the SIP, do not fully meet the CAA

provisions regarding plan submissions and requirements for

nonattainment areas.

DATES: Comments must be received on or before June 4, 1999.

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,

S.W., Washington, D.C. 20460

California Air Resources Board, Stationary Source Division, Rule

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

El Dorado County Environmental Management Department, Air Pollution

Control District, 2850 Fairlane Court, Placerville, CA 95667

FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office, AIR-4,

Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-

1160.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for limited approval and limited

disapproval into the California SIP is EDCAPCD's Rule 229, Industrial,

Institutional, and Commercial Boilers, Steam Generators, and Process

Heaters. Rule 229 was submitted by the State of California to EPA on

October 20, 1994.

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.

On November 25, 1992, EPA published a proposed rule entitled,

``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) which describes and

provides preliminary guidance on the requirements of section 182(f).

The November 25, 1992, action should be referred to for further

information on the NOX requirements and is incorporated into

this document by reference.

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.

EDCAPCD is classified as severe; 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\ EDCAPCD 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-enactment control technologies guidelines (CTG) document or a

post-enactment CTG document) by November 15, 1992. There were no

NOX CTGs issued before enactment and EPA has not issued a

CTG document for any NOX sources since enactment of the CAA.

The 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 El Dorado County

Air Pollution Control District (EDCAPCD) Rule 229, Industrial,

Institutional, and Commercial Boilers, Steam Generators, and Process

Heaters. EDCAPCD adopted Rule 229 on September 27, 1994. The State of

California submitted this Rule 229 to EPA on October 20, 1994. The rule

was found to be complete on October 21, 1994, pursuant to EPA's

completeness criteria 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. EDCAPCD Rule 229 specifies exhaust emission

standards for NOX, carbon monoxide (CO), and VOCs, and was

originally adopted as part of EDCAPCD's effort to achieve the National

Ambient Air Quality Standard (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). The EPA interpretation of these requirements,

which forms the basis for today's action, appears in the NOX

Supplement (57 FR 55620) and various other EPA policy guidance

documents 3. Among those 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 Deviation,

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 purposes 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

[[Page 24121]]

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

Institutional, Industrial and Commercial Boilers, Steam Generators and

Process Heaters (July 1991). EPA has found the guidance consistent with

the CAA and used the CARB guidance document in evaluating Rule 229 for

consistency with the CAA's RACT requirements.

There is currently no version of El Dorado County Air Pollution

Control District (EDCAPCD) Rule 229, Industrial, Institutional, and

Commercial 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), volatile organic compounds (VOCs) and carbon

monoxide (CO).

Administrative and monitoring requirements including

compliance schedule, reporting requirements, monitoring and record

keeping, 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 229 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 229

into the SIP would decrease the NOX emissions allowed by the

SIP.

EPA has evaluated EDCAPCD Rule 229 for consistency with the CAA,

EPA regulations, and EPA policy and has found that, although EDCAPCD

Rule 229 will strengthen the SIP, this rule contains the following

deficiencies which must be corrected pursuant to the section

182(a)(2)(A) requirement of Part D of the CAA.

Section 229.3 (D): Alternate Emission Control Plan (AECP):

Provisions must be consistent with the EPA Emissions Trading Policy

Statement (ETPS) published on December 4, 1986 (51 FR 43814), the

Economic Incentive Program Rules (EIP) promulgated April 7, 1994 (59 FR

16690), and EPA policies regarding equivalency provisions, AECPs,

cross-line averaging, and other bubbles as described in the document

entitled, ``Issues Relating to VOC Regulation Cutpoints, deficiencies,

and deviations: Clarification to Appendix D of November 24, 1987

Federal Register.'' The EIP and EPA policies required AECP provisions

to meet, among other things, a 10 percent (%) or greater reduction in

emissions beyond the established baseline.

The nomenclature regarding ``emissions factors'' is

unclear: The words ``daily NOX emission factor'' should be

defined relative to the NOX emissions level as stated in

Section 229.3 (A).

Section 229.3 (D) (1) (c): The ``overall average emission

factor'' should be defined and the method of calculating described in

the rule.

Section 229.3 (D) (4) (b) (2): The ``Permitted emissions

factors'' should be defined.

Section 229.3 (D) (4) (b): Provisions 3), 4), and 5)

should be defined and the method of determining emissions/emission

factors should be included in the rule.

Section 229.3 (D) (5) (c) and (d): ``The daily overall

average pounds of NOX/MMBTU'' should be defined.

Section 229.3 (D) and Section 229.3 (D) (6):

Reduction of the daily NOX emissions in the

AECP should be to less than 90 percent of the NOX emissions

that would result if each unit in operation were individually in

compliance with Section 229.3 (A).

Section 229.3 (D) (6): Language should be modified to: ''*

* * the emission factor calculated in Section 229.3 D.5.d. exceeds 90 %

of the emission factor calculated in section 229.3 D.5.c., the excess

emissions shall be considered a violation of the rule.''

Section 229.3 (D) and Section 229.5 (B) (2): Executive

Officer's discretion language should be expanded to include ``as

approved by the Air Pollution Control Officer utilizing methods

approved by the California Air Resources Board and the U.S. EPA.''

Provisions should include notification language for

exceedances.

Regarding other sections of the Rule:

Section 229.3 (A): Annual Heat Inputs: To be consistent

with the CARB Determination the language should be modified to:

``greater than or equal to 90,000 therms for any of the three previous

calender years,''.

Section 229.3 (C): Equipment requirements: Flow rate

meters should be specified as ``non-resettable, totalizing meters'' for

both mass flow and volumetric flow meters.

Section 229.4 (A): Compliance schedule: A date for

facilities to achieve full compliance should be specified.

A more detailed discussion of these rule deficiencies can be found

in the Technical Support Document for Rule 229, dated January 29, 1999,

which is available from the U.S. EPA, Region IX office.

Because of these deficiencies, 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 EDCAPCD's submitted Rule 229 under sections 110(k)(3) and 301(a) of

the CAA. 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), of 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 under section 110(c).

It should be noted that the rule covered by this document has been

adopted by the El Dorado County Air Pollution Control District and is

currently in effect in the El Dorado County Air Pollution Control

District. EPA's final limited disapproval action will not prevent the

El Dorado County Air Pollution Control District or EPA from enforcing

this rule.

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IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a State, local or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

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 E.O.

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 E.O. 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

D. 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 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to 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 officials 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

E.O. 13084 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 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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Oxides of

nitrogen Ozone, Reporting and record keeping requirements, Volatile

organic compounds.

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

Dated: April 16, 1999.

Laura Yoshii,

Deputy Regional Administrator, Region IX.

[FR Doc. 99-11274 Filed 5-4-99; 8:45 am]

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