Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; San Joaquin Valley Unified Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 217-148; FRL-6465-9]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; San Joaquin Valley Unified 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 the

San Joaquin Valley Unified Air Pollution Control District

(``SJVUAPCD''). This revision concerns SJVUAPCD Rule 4354, which

controls oxides of nitrogen (NOX) emissions from glass

melting furnaces.

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 the revision,

while strengthening the SIP, does not fully meet the CAA provisions

regarding plan submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before November 29, 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.

San Joaquin Valley Unified Air Pollution Control District, 1990 E.

Gettysburg Ave., Fresno, CA 93726.

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 approval into the California SIP is San

Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule

4354, Glass Melting Furnaces. Rule 4354 was submitted by the State of

California to EPA on September 29, 1998.

II. Background

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

enacted. Public Law 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.

SJVUAPCD is classified as severe 1; therefore this area is

subject to the RACT requirements of

[[Page 58009]]

section 182(b)(2) and the November 15, 1992 deadline cited below.

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\1\ SJVUAPCD 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 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 San Joaquin

Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4354,

Glass Melting Furnaces, adopted by the SJVUAPCD on April 16, 1998. The

State of California submitted this amended version of Rule 4354 to EPA

on September 29, 1998. The rule was found to be complete on January 26,

1999, 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. SJVUAPCD Rule 4354 specifies exhaust emission

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

originally adopted as part of SJVUAPCD'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 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) has developed a guidance

document entitled, ``Suggested Control Measure for the control of

Nitrogen Emissions from Glass Melting Furnaces.'' EPA has used CARB's

RACT Determination, dated September 5, 1980, in evaluating Rule 4354

for consistency with the CAA's RACT requirements.

There is currently a September 14, 1994 version of San Joaquin

Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4354,

Glass Melting Furnaces in the SIP. The 1994 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).

Compliance and monitoring requirements including

compliance schedule, reporting requirements, monitoring and record

keeping, and test methods.

The version of the rule submitted in 1998 contains the following

significant modifications from the 1994 version:

A new Tier 2 emissions limit reduces NOX

emission levels for flat glass, container glass, and fiberglass

furnaces and adds controls for CO and VOCs.

A Bubbling option, CEMS (or alternate emissions monitoring

with daily recordkeeping), and five year record retention requirements.

Exemptions from emission control requirements on start-up

have been increased for all furnaces with innovative controls to allow

180 days from first glass pull, or 30 days after achieving 60% of

capacity, whichever is later.

Exemptions from emission control requirements have also

been added for unlimited periods of time from the ``start of a change

to initiate'' a start-up, shutdown, or idling.

New ``Tier 2 controls'' compliance deadline at the first

furnace rebuild after January 1, 1999.

Source testing for each furnace, or furnace battery, shall

occur each calender year, not more than every 18 months, but not sooner

than every 6 months.

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 4354 strengthens the SIP

through the addition of enforceable measures such as record keeping,

test methods, definitions, and more stringent compliance testing. The

SJVUAPCD has projected that incorporation of Rule 4354 into the SIP

would decrease the NOX emissions allowed by the SIP.

EPA has evaluated San Joaquin Valley Unified Air Pollution Control

District Rule 4354 for consistency with the CAA, EPA regulations, and

EPA policy and has found that although SJVUAPCD Rule 4354 will

strengthen the SIP, this rule contains deficiencies which must be

corrected pursuant to the section 182(a)(2)(A) requirement of part D of

the CAA.

Section 3.17.3: Start-up definition: states: ``180 days

following initial glass pull, or 30 days after the glass pull rate

reaches 60 percent of the furnace's glass production capacity,

whichever occurs later, for any furnace that uses a NOX

control technique * * * '' Coupled with section 4.2, this would seem to

allow for

[[Page 58010]]

an unlimited period of time for operations up to 60% glass production

while exempt from compliance tests and possibly controls while at

production temperatures. EPA policy generally does not allow automatic

exemption from excess emissions during such periods. The District needs

to demonstrate that RACT limits are to be in place at all possible

times. Control systems need to be in operation and limits established

as temperatures are increased to levels where NOX is made

and before the furnace is at production levels. The time allowed to

operate with exemption, at less than 60% of rated capacity, must be

limited. 180 days start-up exemption seems excessive. The district

should remove this exemption or demonstrate that it complies with CAA

Sections 110(l) and 182 regarding rule relaxations and RACT.

Section 4.2: Exemptions: states: (new text in italic)

``The requirements of Section 5.0 shall not apply during periods of

start-up, shutdown or idling. The period of exemption shall apply from

the beginning of operational changes required to initiate idling,

shutdown, or start-up. The owner shall comply with the requirements of

Section 6.7 when performing such operations.''

Initiation of operational changes allow the ``beginning of startup,

idling and cool down'' exemptions, which could last forever. The

requirements of section 6.7 do nothing to limit these periods. The

duration of these periods must have finite limits. Clarifying

statements are required on two issues: (1) that control systems must be

in operation during these periods of exemption, and (2) that the

exemption periods indicate the period of time allowed before a

compliance test is required. Burner controls operate from the start, a

SCR unit can start at 650 F., and a SNCR can begin operation at 1800 F.

There should be stated limits for emission levels considered acceptable

during the startup, idling and cool down periods. The first glass draw,

when temperatures approach 2900 degrees F., should be allowed only if

the system is in compliance with these limits. (See TSD referenced

Guidance Document: State Implementation Plans: Policy Regarding Excess

Emissions During Malfunctions, Startup, and Shutdown, U.S. EPA, Office

of Air Quality Planning and Standards, September 20, 1999).

Section 5.3: Tier 1 NOX emission limit

Compliance Determination: The first equation should be reformatted to

clarify that ``CF'' is in the numerator.

Section 7.1: Compliance schedule: A final date for major

NOX sources to adopt CEMS or alternate continuous monitoring

methods should be specified to prevent avoidance of continuous

monitoring by running forever without an official ``rebuild.''

Section 7.2.3: Full compliance schedule: A final date for

facilities to achieve the full Tier 2 compliance should be specified to

prevent avoidance of controls by running forever without an official

``rebuild.''

Sections 9.0, 9.4, and 9.7: Aggregated NOX

emissions: This is an 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.

A detailed discussion of these deficiencies can be found in the

Technical Support Document for Rule 4354, dated October 1, 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 SJVUAPCD's

submitted Rule 4354 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 San Joaquin

Valley Unified Air Pollution Control District and is currently in

effect in the San Joaquin Valley Unified Air Pollution Control

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

San Joaquin Valley Unified 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

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.

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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 recordkeeping requirements, Volatile

organic compounds.

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

Dated: October 18, 1999.

Laura Yoshii,

Deputy Regional Administrator, Region IX.

[FR Doc. 99-28216 Filed 10-27-99; 8:45 am]

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