[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Proposed Rules]
[Pages 9138-9140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4966]
[[Page 9138]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 009-0028; FRL-5694-9]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision; South Coast Air Quality Management
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the California State Implementation Plan (SIP) for ozone.
The revisions concern the control of oxides of nitrogen (NOX) from
boilers, process heaters, and internal combustion engines. The intended
effect of proposing limited approval and limited disapproval of these
rules 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 rulemaking will incorporate these
rules into the Federally approved SIP. EPA has evaluated these rules
and is proposing a simultaneous limited approval and limited
disapproval under provisions of the CAA regarding EPA actions on SIP
submittals and general rulemaking authority because these revisions,
while strengthening the SIP, also do not fully meet the CAA provisions
regarding plan submissions and requirements for nonattainment areas.
DATES: Comments on this proposed action must be received in writing on
or before March 31, 1997.
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 rules and EPA's evaluation report of each rule are
available for public inspection at EPA's Region IX office during normal
business hours. Copies of the submitted rules are also available for
inspection at the following locations:
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, CA 91765-4182.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Office (AIR-4),
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1200.
SUPPLEMENTARY INFORMATION:
Applicability
The rules being proposed for limited approval and limited
disapproval are South Coast Air Quality Management District (SCAQMD)
Rule 1109, Emissions of Oxides of Nitrogen from Boilers and Process
Heaters in Petroleum Refineries, adopted by SCAQMD on August 5, 1988;
and Rule 1110.2, Emissions from Gaseous- and Liquid-Fueled Internal
Combustion Engines, adopted on December 9, 1994.
Background
On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA)
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 CAA. On November 25, 1992,
EPA published a notice of proposed rulemaking (NPR) 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 the
requirements of section 182(f). The NOX Supplement should be
referred to for further information on the NOX requirements and is
incorporated into this document by reference.
Section 182(f) of the CAA 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. The Los
Angeles-South Coast Air Basin is classified as extreme;1 therefore
this area was subject to the RACT requirements of section 182(f),
section 182(b)(2), and the November 15, 1992 deadline, cited below.
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\1\ The Los Angeles-South Coast Air Basin Area 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 emissions (not covered by a pre-enactment
control technique 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 SCAQMD Rule 1109,
Emissions of Oxides of Nitrogen from Boilers and Process Heaters in
Petroleum Refineries, and Rule 1110.2, Emissions from Gaseous- and
Liquid-Fueled Internal Combustion Engines. The SCAQMD adopted Rule 1109
on August 5, 1988, and the rule was submitted by the California Air
Resources Board (CARB) to EPA on March 26, 1990. Rule 1110.2 was
adopted on December 9, 1994, and submitted on April 13, 1995. The above
rules were found to be complete on June 20, 1990, and May 2, 1995,
respectively, pursuant to EPA's completeness criteria that are set
forth in 40 CFR Part 51 Appendix V,2 and are being proposed for
limited approval and limited disapproval into the SIP.
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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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Rule 1109 and Rule 1110.2 control NOX emissions from refinery
boilers and process heaters, and internal combustion (I/C) engines.
NOX emissions contribute to the production of ground level ozone
and smog. These rules were adopted as part of SCAQMD's efforts to
achieve the National Ambient Air Quality Standards for ozone and in
response to the CAA requirements cited above. The following is EPA's
evaluation and proposed action for these rules.
EPA Evaluation and Proposed Action
In determining the approvability of a NOX rule, EPA must
evaluate the rule for consistency with the requirements of the CAA and
EPA regulations, as found in section 110 and Part D of the CAA, and 40
CFR Part 51 (Requirements for Preparation, Adoption and Submittal of
Implementation Plans). EPA's interpretation of these requirements,
which forms the basis for this action, appears in the NOX
Supplement and various other EPA policy guidance documents.3 Among
these provisions is
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the requirement that a NOX rule must, at a minimum, provide for
the implementation of RACT for major 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); and
``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations, Clarification to Appendix D of November 24, 1987 Federal
Register Notice'' (Blue Book) (notice of availability was published
in the Federal Register on May 25, 1988).
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For the purposes of assisting State and local agencies in
developing NOX RACT rules, EPA prepared the NOX Supplement to
the General Preamble, cited above (57 FR 55620). In the NOX
Supplement, EPA provides 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 has issued alternative control technique documents (ACTs)
that identify alternative controls for all categories of stationary
sources of NOX. The ACT documents 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.
SCAQMD Rule 1109 controls emissions of nitrogen oxides from boilers
and process heaters located in petroleum refineries with rated
capacities greater than 40 MBtu per hour heat input. The rule requires
units to meet a 0.03 pound per million Btu heat input limit in
accordance with a phased time schedule. The emission limits will
strengthen the SIP, but this rule contains deficiencies which must be
corrected. Those deficiencies include Executive Officer discretion in
approving continuous emission monitoring equipment and test methods,
insufficient records to determine compliance, and an unapprovable
provision for an alternative emission control plan.
Rule 1110.2 controls NOX, carbon monoxide (CO), and reactive
organic gases (ROG) from I/C engines. The emission limits in this rule
are 36 ppm for NOX, 2000 ppm for CO, and 250 ppm for ROG. Certain
types of units specifically identified in the rule may have an
allowable NOX emission limit of approximately 45 ppm. In setting
these limits, the SCAQMD considered emission reductions, control
technologies, cost-effectiveness, and environmental impacts. EPA agrees
that the limits incorporated into SCAQMD Rule 1110.2 are consistent
with the Agency's guidance and policy for making RACT determinations,
and that these limits satisfy the RACT requirement. The limits of Rule
1110.2 will strengthen the SIP, but this rule contains deficiencies
with respect to the requirements of the CAA and EPA regulations as
interpreted in the various policy guidance documents discussed earlier.
Certain existing units are not required to be in compliance until the
year 2004, which is well beyond the statutory May 31, 1995 deadline,
and the rule allows for Executive Officer discretion in approving
continuous emission monitoring equipment and test methods for
determining compliance with emission limits.
EPA has evaluated the submitted rules described above for
consistency with the CAA, EPA regulations, and EPA policy, and although
these rules will strengthen the SIP, they still contain deficiencies
which were required to be corrected pursuant to the section
182(a)(2)(A) requirement of Part D of the CAA. A more detailed
discussion of the sources controlled, the limits required,
justification for why these limits satisfy RACT, and the rule
deficiencies can be found in the Technical Support Document (TSD) for
each rule, available from the U.S. EPA Region IX office. Because of the
deficiencies, these rules are not consistent with the interpretation of
section 172 of the 1977 CAA as found in the Blue Book and may lead to
rule enforceability problems. As a result, these rules are not
approvable pursuant to section 182(a)(2), section 182(b)(2), section
182(f) and Part D of the CAA.
For the reasons mentioned above, EPA cannot grant full approval of
these rules under section 110(k)(3) and Part D. Also, because the
submitted rules are not composed of separable parts which meet all the
applicable requirements of the CAA, EPA cannot grant partial approval
of the rules under section 110(k)(3). However, EPA may grant a limited
approval of the submitted rules 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 the SCAQMD's submitted Rule 1109 and Rule 1110.2, under
sections 110(k)(3) and 301(a) of the CAA as meeting the requirements of
section 110(a) and Part D.
At the same time, EPA is also proposing a limited disapproval of
these rules because they contain deficiencies which must be corrected
in order to fully meet the requirements of section 182(a)(2), section
182(b)(2), section 182(f), and Part D of the Act. 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 rules covered by this NPR have been adopted by
the SCAQMD and are currently in effect in the SCAQMD. EPA's final
limited disapproval action will not prevent the SCAQMD or EPA from
enforcing these rules.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State implementation plan. Each request for revision to
the State implementation plan shall be considered separately in light
of specific technical, economic and environmental factors and in
relation to relevant statutory and regulatory requirements.
Regulatory Process
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities. 5 U.S.C sections 603
and 604. Alternatively, EPA may certify 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 government entities with jurisdiction over populations
of less than 50,000.
Limited approvals under section 110 and 301 and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, it does not
have a significant impact on affected small
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entities. Moreover, due to the nature of the Federal/State relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of State
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A. , 427 U.S. 246, 256-66
(S.Ct. 1976); 42 U.S.C. section 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
Through submission of this State implementation plan revision, the
State and any affected local or tribal governments have elected to
adopt the program provided for under Part D of the Clean Air Act. These
rules may bind State, local, and tribal governments to perform certain
actions and also require the private sector to perform certain duties.
The rules being proposed for limited approval and limited disapproval
by this action will impose no new requirements because affected sources
are already subject to these regulations under State law. Therefore, no
additional costs to State, local, or tribal governments or to the
private sector result from this action. EPA has also determined that
this proposed action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under procedures published in the Federal
Register on January 19, 1989 (54 FR 2214-2225), as revised by a July
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air
and Radiation. The Office of Management and Budget has exempted this
regulatory action from review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 12, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-4966 Filed 2-27-97; 8:45 am]
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