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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-11275

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 5, 1999
- **Citation:** 64 FR 24117

## Text

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 105-3-0123; FRL-6336-4]

Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision; El Dorado 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). The
revision concerns Rule 232, which regulates oxides of nitrogen
(NOX) emissions from Biomass Boilers.
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 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 El Dorado County Air Pollution
Control District (EDCAPCD) Rule 232, Biomass Boilers. Rule 232 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 232, Biomass Boilers.
EDCAPCD adopted Rule 232 on October 18, 1994. The State of California
submitted this Rule 232 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 232 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

[[Page 24118]]

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 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 this guidance document to be
consistent with the CAA's RACT requirements and has used it in
evaluating EDCAPCD Rule 232.
There is currently no version of El Dorado County Air Pollution
Control District (EDCAPCD) Rule 232, Biomass Boilers, 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 232 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 232 into the SIP would decrease the
NOX emissions allowed by the SIP.
EPA has evaluated EDCAPCD Rule 232 for consistency with the CAA,
EPA regulations, and EPA policy and has found that, although EDCAPCD
Rule 232 will strengthen the SIP, this rule contains the following
deficiency which must be corrected pursuant to the section 182(a)(2)(A)
requirement of Part D of the CAA.
Section 232.4 (A) regarding the compliance schedule of the
Rule, must be modified to include a compliance schedule for facilities
requiring emissions control equipment to achieve emissions limits, as
defined in the Clean Air Act. The compliance schedule for facilities
requiring emissions control equipment should specify a final compliance
schedule to be achieved no later than two years after the determination
is made that emissions control equipment is required.
A detailed discussion of this rule deficiency can be found in the
Technical Support Document for Rule 232, dated December 2, 1998, which
is available from the U.S. EPA, Region IX office. 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 EDCAPCD's
submitted Rule 232 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 a deficiency 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.

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

[[Page 24119]]

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 is
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 21, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-11275 Filed 5-4-99; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-11275. Public record. Not legal advice.