[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55834-55838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26658]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 76
[FRL-6455-4]
Acid Rain Program--Nitrogen Oxides Emission Reduction Program,
Rule Revision in Response to Court Remand
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to revise the regulations for the Acid Rain Nitrogen
Oxides Emission Reduction Program under title IV of the Clean Air Act
in response to a remand by the U.S. Court of Appeals for the District
of Columbia Circuit. In December 1996, EPA issued regulations setting
nitrogen oxides (NOX) emission limits for specified types of
existing, coal-fired boilers, including cell burner boilers, that are
subject to such limits starting in 2000. In February 1998, the Court
upheld the regulations except for one provision addressing what boilers
qualify as cell burner boilers. The Court vacated and remanded that
provision. EPA is revising the regulations, consistent with the Court's
decision, to treat, as a cell burner boiler, any boiler subject to the
limits starting in 2000, constructed as a cell burner boiler, and
converted to the burner configuration of a wall-fired boiler. Under the
regulations, a cell burner boiler must meet an annual average
NOX emission limit of 0.68 lb/mmBtu. The NOX
emission limits under title IV will reduce the serious, adverse effects
of NOX emissions on human health, visibility, ecosystems,
and materials.
DATES: This rule is effective on December 14, 1999 without further
notice, unless EPA receives adverse comment by November 29, 1999. If we
receive such comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Comments: Commenters must identify all written comments with
the appropriate docket number (Docket No. A-95-28) and must submit them
in duplicate to EPA Air Docket Section (6102), Waterside Mall, Room
M1500, 1st Floor, 401 M Street, SW, Washington, DC 20460.
Docket. Docket No. A-95-28, containing supporting information used
in developing the proposed rule, is available for public inspection and
copying between 8:30 a.m. and 3:30 p.m., Monday through Friday, at
EPA's Air Docket Section, Waterside Mall, Room 1500, 1st Floor, 401 M
Street, SW, Washington, DC 20460. EPA may charge a reasonable fee for
copying.
FOR FURTHER INFORMATION CONTACT: Dwight C. Alpern, at (202) 564-9151,
[[Page 55835]]
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460; or the Acid Rain Hotline at (202) 564-9089.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule revision as a
direct final rule because we view this as noncontroversial and
anticipate no adverse comment. The rule revision is consistent with a
remand by the U.S. Court of Appeals for the District of Columbia
Circuit. Further, EPA projects that the rule revision will affect only
one boiler, by increasing the boiler's NOX emission limit
under title IV. However, in the ``Proposed Rules'' section of today's
Federal Register, we are publishing a separate document that will serve
as the proposed rule revision if we receive any timely, adverse
comments. Today's direct final rule will be effective on December 14,
1999 without further notice unless we receive adverse comment by
November 29, 1999. If we receive such adverse comment, we will publish
a timely withdrawal in the Federal Register informing the public that
the rule will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so at this time.
The information in this preamble is organized as follows:
I. Regulated Entities
II. Background and Revisions
III. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Executive Order 12875: Enhancing Intergovernmental
Partnerships
C. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
D. Unfunded Mandates Act
E. Paperwork Reduction Act
F. Regulatory Flexibility
G. Applicability of Executive Order 13045: Children's Health
Protection
H. National Technology Transfer and Advancement Act
I. Submission to Congress and the General Accounting Office
I. Regulated Entities
Entities potentially regulated by this action are fossil-fuel fired
boilers that burn coal and that serve generators producing electricity
for sale. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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NAICS Code: 22112, Fossil Fuel Electric Electric service providers,
Power Production. boilers that burn coal.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. This action could also
regulate other types of entities not listed in the table. To determine
whether your facility is regulated by this action, you should carefully
examine the applicability criteria in Secs. 72.6 and 76.1 and the
exemption in Sec. 72.8 of title 40 of the Code of Federal Regulations.
If you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background and Revisions
Under title IV of the Act, utility units are subject to sulfur
dioxide (SO2) emission limits (as required in sections 404,
405, 408,and 409) and must monitor SO2, NOX,
carbon dioxide (CO2), and opacity (as required in section
412). Further, under section 407(a), NOX emission limits
established under section 407(b) apply to any existing ``coal-fired
utility unit,'' generally when the unit is subject to SO2
emission limits. 40 U.S.C. 7651f(a). Section 407(b)(1) requires EPA to
set NOX emission limits for tangentially fired boilers and
dry bottom, wall-fired boilers. Section 407(b)(2) authorizes EPA to
establish more stringent emission limits for these types of boilers
effective starting in 2000. In addition, section 407(b)(2) requires EPA
to set NOX emission limits for all other types of existing
coal-fired boilers, including ``units applying cell burner
technologies.'' 40 CFR 7651f(b)(2). However, title IV does not define
the phrase ``units applying cell burner technology.'' EPA therefore
interpreted the phrase in the regulations setting the applicable
limits.
Cell burner boilers have closely spaced clusters of 2 or 3 burners
(i.e., cells) that together result in a single flame. In addition, the
boilers are, like many wall-fired boilers, relatively compactly
designed with small furnaces. Two types of combustion control systems
are available for cell burner boilers. First, the boiler owner or
operator can retain the cell configuration of the burners by replacing
each burner in each cell with a low NOX burner (referred to
as ``plug-in combustion controls''). Second, the owner or operator can
replace the sections of the boiler walls containing the cells with wall
sections that reconfigure and replace the burners and that contain low
NOX burners more widely spaced in a row (referred to as
``non-plug-in combustion controls''), like those in wall-fired boilers.
Either type of combustion controls may or may not include additional
ports for the injection of air above the low NOX burners.
In interpreting section 407 for purposes of setting emission limits
under sections 407(b)(1) and (2), EPA had to decide how to apply the
boiler categories to boilers to which the owner or operator made
physical changes after original construction. Some of these changes
could arguably put the boilers in a different boiler category. EPA
first addressed this issue in the rulemaking under section 407(b)(1)
where EPA issued the April 13, 1995 rule setting the initial limits for
tangentially fired boilers and dry bottom, wall-fired boilers. The rule
provided that a cell burner boiler that is subject to SO2
limits during 1995 through 1999 (i.e., Phase I of the Acid Rain
Program) and that converted to the conventional burner configuration of
a wall-fired boiler (i.e., through retrofitting with non-plug-in
combustion controls) on or before January 1, 1995 is classified as a
wall-fired boiler. 40 CFR 76.5(d).
EPA also addressed this issue in the rulemaking under section
407(b)(2) where EPA issued the December 19, 1996 rule that, among other
things, set an emission limit for cell burner boilers. In the preamble
of the proposed rule in that rulemaking, EPA stated that the
replacement of the cells in a cell burner boiler by conventionally
spaced burners ``essentially convert[s] the cell burner boiler to a
conventional wall-fired boiler''. 61 FR 1442,1465 (1996). EPA proposed
treating, as a cell burner boiler, any cell burner boiler (other than a
Phase I boiler) that replaced its cells on or before the commencement
of Phase II of the Acid Rain Program (i.e., January 1, 2000). 61 FR
1480. One commenter submitted comments on this matter.
Noting that the Agency was also considering an alternative that
would classify, as wall-fired boilers, any cell burner boilers that
converted their cells on or before November 15, 1990, the commenter
opposed that alternative. The commenter noted that it originally
constructed two of its units as cell burner boilers and that it
installed non-plug-in combustion controls at the first unit in 1989 and
at the second unit in 1991. The commenter argued that the two units
are, as a technical matter, still cell burner boilers after conversion
of their cells to conventionally spaced low NOX burners.
According to the commenter, the two units should therefore be subject
to the NOX emission
[[Page 55836]]
limit for cell burner boilers, not the more stringent NOX
emission limit for wall fired boilers. The commenter urged that, for
purposes of determining how to classify cell burner boilers that
convert to conventionally spaced burners, EPA adopt a ``case-by-case
policy wherein each installation is evaluated on its own merits.''
Docket Item IV-D-051 at 4.
In response to these comments, the December 19, 1996 rule
established the date of enactment of title IV (November 15, 1990) as
the cutoff date for classifying converted cell burners as wall-fired
boilers. Section 407 does not specifically address how to categorize
cell burners that are converted so that they are no longer applying
cell burner technology. EPA took the approach of applying the statutory
boiler category of ``units applying cell burner technology'' as of the
date of enactment of title IV. Under the December 19, 1996 rule, the
commenter's unit with non-plug-in combustion controls installed in 1989
is a wall-fired boiler with NOX limit of 0.46 lb/mmBtu, and
the unit with non-plug-in combustion controls installed in 1991 is cell
burner boiler with NOX limit of 0.68 lb/mmBtu.
In response to petitions for review of the December 19, 1996 rule,
the U.S. Court of Appeals for D.C. upheld all provisions of the rule
except for the provision addressing the treatment of cell burner
boilers with non-plug-in combustion controls as wall-fired boilers.
Appalachian Power v. EPA, 135 F.3d 791, 822 (D.C. Cir. 1998). The Court
vacated, and remanded that rule provision to EPA. Id. The Court
explained that:
the fact that no retrofitted cell burner [i.e., no cell burner with
non-plug-in combustion controls] can achieve the * * * emission
limit [for wall-fired boilers] using only the technology Congress
authorized for setting that limit (low NOX burner
technology) is evidence that retrofitted cell burners are not the
functional equivalent of wall-fired boilers, as measured by
congressional concerns. 135 F.3d at 821.
In today's action, EPA is revising the December 17, 1996 rule to
remove the provision vacated by the Court in Appalachian Power and, in
light of the Court's opinion, has decided to take no further action on
this matter. As a result, boilers subject to the NOX limit
starting in 2000 and originally constructed as cell burner boilers will
be subject to the NOX limit for cell burner boilers,
regardless of whether or when they are modified through the
installation of non-plug-in combustion controls. Today's rule revision
does not address or change in any respect the compliance dates, which
are in the existing regulations and which the Court upheld in
Appalachian Power, for any units subject to the NOX limits
under the Acid Rain Program.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Administrator must determine whether the regulatory action is
``significant'' and therefore subject to Office of Management and
Budget (OMB) review and the requirements of the Executive Order. The
Order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has determined
that today's final rule is not a ``significant regulatory action'' and
therefore is not subject to OMB review.
B. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875, 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 unless EPA consults with those governments. If EPA
complies by consulting, Executive Order 12875 requires EPA 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 final rule does not create a mandate on State, local or
tribal governments and does not impose any enforceable duties on these
entities. EPA projects that the rule will affect only one boiler, by
increasing the level of the boiler's NOX emission limit
under title IV. Moreover, the boiler is not owned or operated by a
State, local, and tribal government. Accordingly, the requirements of
section 1(a) of Executive Order 12875 do not apply to this rule.
C. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, 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 unless EPA consults with
those governments. If EPA complies by consulting, EPA must 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 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 final rule does not significantly or uniquely effect, or
impose any substantial direct compliance costs on, the communities of
Indian tribal governments. The rule does not impose any enforceable
duties on these entities. Accordingly, the requirements of section 3(b)
of Executive Order 13084 do not apply to this rule.
D. Unfunded Mandates Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private
[[Page 55837]]
sector. Under section 202 of UMRA, EPA generally must prepare a written
statement, including a cost-benefit analysis, before promulgating a
proposed or final rule that includes a federal mandate that may result
in expenditure by State, local, and tribal governments, in aggregate,
or by the private sector, of $100 million or more in any one year.
Section 205 generally requires that, before promulgating a rule for
which a written statement must be prepared, EPA must identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator explains why that alternative was not adopted. Finally,
section 203 requires that, before establishing any regulatory
requirements that may significantly or uniquely affect small
governments, EPA must have developed a small government agency plan.
The plan must provide for notifying any potentially affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
Because today's rule is estimated to result in the expenditure by
State, local, and tribal governments or the private sector of less than
$100 million in any one year, the Agency has not prepared a budgetary
impact statement or specifically addressed the selection of the least
costly, most cost-effective, or least burdensome alternative. Because
small governments will not be significantly or uniquely affected by
this rule, the Agency is not required to develop a plan with regard to
small governments.
As discussed above, EPA projects that today's final rule will
affect only one boiler, by increasing the level of the boiler's
NOX emission limit under title IV. Moreover, the boiler is
not owned or operated by a State, local, and tribal government.
E. Paperwork Reduction Act
Today's final revisions to parts 72 and 73 will not impose any new
information collection burden subject to the Paperwork Reduction Act
(44 U.S.C. 3501, et seq.). OMB has previously approved the information
collection requirements contained in the Acid Rain Nitrogen Oxides
Emission Reduction Program regulations, 40 CFR part 76, under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. See
OMB Control Number 2060-0258.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
Copies of the previously approved ICR may be obtained from the
Director, Regulatory Information Division; EPA; 401 M St. SW (mail code
2137); Washington, DC 20460 or by calling (202) 564-2740. Include the
ICR and/or OMB number in any correspondence.
F. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq.,
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 government jurisdictions.
As discussed above, EPA projects that today's final rule will
affect only one boiler, by increasing the level of the boiler's
NOX emission limit under title IV. Moreover, the boiler is
not owned or operated by a small entity. For these reasons, EPA has
determined that this rule will not have a significant economic impact
on a substantial number of small entities.
G. Applicability of Executive Order 13045: Children's Health Protection
Executive Order 13045 (62 FR 19885, April 29, 1997) applies to any
rule if EPA determines (1) that the rule is economically significant as
defined under Executive Order 12866, and (2) that the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, EPA
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 EPA.
Today's final rule is not subject to Executive Order 13045, because
the action is not economically significant and does not address an
environmental health or safety risk that may disproportionately affect
children.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub L. 104-113, Sec. 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, or business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA requires EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
Today's final rule does not involve any technical standards that
would require Agency consideration of voluntary consensus standards
pursuant to section 12(d) of the NTTAA.
I. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. Today's final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 76
Environmental protection, Acid rain program, Air pollution control,
Electric utilities, Nitrogen oxides.
[[Page 55838]]
Dated: October 5, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 76--[AMENDED]
1. The authority citation for part 76 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
2. Section 76.6 is amended by removing from paragraph (a)(1) the
words ``after November 15, 1990'' and the entire last sentence.
[FR Doc. 99-26658 Filed 10-14-99; 8:45 am]
BILLING CODE 6560-50-P
