[Federal Register Volume 74, Number 235 (Wednesday, December 9, 2009)]
[Proposed Rules]
[Pages 65042-65044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29351]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0711; FRL-9090-3]
Revisions to the California State Implementation Plan, 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
revisions to the San Joaquin Valley Unified Air Pollution Control
District (SJVAPCD) portion of the California State Implementation Plan
(SIP). These revisions concern oxides of nitrogen (NOX)
emissions from solid fuel fired boilers, steam generators and process
heaters. We are proposing action on a local rule that regulates these
emission sources under the Clean Air Act as amended in 1990 (CAA or the
Act). We are taking comments on this proposal and plan to follow with a
final action.
DATES: Any comments must arrive by January 8, 2010.
ADDRESSES: Submit comments, identified by docket number [EPA-R09-OAR-
2009-0711], by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: [email protected].
3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at
http:[sol][sol]www.regulations.gov, including any personal information
provided, unless the comment includes Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through
http:[sol][sol]www.regulations.gov or e-mail.
http:[sol][sol]www.regulations.gov is an ``anonymous access'' system,
and EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send e-mail directly to
EPA, your e-mail address will be automatically captured and included as
part of the public comment. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Idalia Perez, EPA Region IX, (415)
972-3248, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What rule did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule revision?
II. EPA's Evaluation and Action
A. How is EPA evaluating the rule?
B. Does the rule meet the evaluation criteria?
C. What is the rule deficiency?
D. EPA Recommendations To Further Improve the Rule
E. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rule did the State submit?
Table 1 lists the rule addressed by this proposal with the dates
that it was adopted by the local air agency and submitted by the
California Air Resources Board.
Table 1--Submitted Rule
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Local agency Rule No. Rule title Adopted Submitted
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SJVAPCD.................................. 4352 Solid Fuel Fired Boilers, Steam 05/18/06 10/05/06
Generators and Process Heaters.
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On 10/24/06, EPA determined that the submittal for SJVAPCD Rule
4352 met the completeness criteria in 40 CFR part 51 Appendix V, which
must be met before formal EPA review.
B. Are there other versions of this rule?
We approved an earlier version of Rule 4352 into the SIP on
February 11,
[[Page 65043]]
1999 (64 FR 6803). We published a direct final approval of revisions to
this rule, along with a parallel proposal, on May 30, 2007 (72 FR
29886). We received adverse comments and withdrew the direct final
approval of Rule 4352 on July 30, 2007 (72 FR 41450). Because we are
reproposing today an alternative action on Rule 4352, we are not
addressing comments or taking further action on the parallel proposal
published on May 30, 2007 (72 FR 29901).
C. What is the purpose of the submitted rule revision?
NOX emissions help produce ground-level ozone, smog and
particulate matter, which harm human health and the environment.
Section 110(a) of the CAA requires States to submit regulations that
control NOX emissions. Rule 4352 limits NOX and
carbon monoxide (CO) emissions from solid fuel fired boilers, steam
generators and process heaters. SJVAPCD amended the rule to broaden its
applicability and to strengthen the emission limits for NOX.
EPA's technical support document (TSD) has more information about this
rule.
II. EPA's Evaluation and Action
A. How is EPA evaluating the rule?
Generally, NOX SIP rules must be enforceable (see
section 110(a) of the Act), must require Reasonably Available Control
Technology (RACT) for each major source of NOX emissions in
nonattainment areas classified as moderate or above (see sections
182(b)(2) and 182(f)), and must not relax existing requirements (see
sections 110(l) and 193). The SJVAPCD regulates an ozone nonattainment
area classified as extreme (1-hour standard) and serious (8-hour
standard) (see 40 CFR part 81), so Rule 4352 must satisfy RACT
requirements. Rule 4352 must also require the use of advanced control
technologies to control NOX emission from this source
category (see section 182(e)(3)).
Guidance and policy documents that we use to evaluate
enforceability and RACT requirements consistently include the
following:
1. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR 13498, April 16, 1992 (the General Preamble); 57 FR 18070, April 28,
1992 (Appendices).
2. ``State Implementation Plans; Nitrogen Oxides Supplement to the
General Preamble; Clean Air Act Amendments of 1990 Implementation of
Title I; Proposed Rule,'' 57 FR 55620, November 25, 1992 (the
NOX Supplement).
3. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook).
4. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
5. ``Determination of Reasonably Available Control Technology and
Best Available Retrofit Control Technology for Industrial,
Institutional, and Commercial Boilers, Steam Generators, and Process
Heaters,'' CARB, July 18, 1991.
6. ``Alternative Control Techniques Document--NOX
Emissions from Industrial/Commercial/Institutional (ICI) Boilers,'' US
EPA, 453/R-94-022, March 1994.
7. ``Alternative Control Techniques Document--NOX
Emissions from Utility Boilers,'' U.S. EPA, 453/R-94-023, March 1994.
B. Does the rule meet the evaluation criteria?
SJVAPCD's revisions to Rule 4352 improve the SIP by expanding the
rule's applicability provisions and establishing more stringent
NOX emission limits. The rule is largely consistent with CAA
requirements and EPA policy regarding enforceability and SIP
relaxations. Rule 4352 also requires the use of advanced control
technologies to control NOX emissions from this source
category. Rule provisions which do not meet the evaluation criteria are
summarized below and discussed further in the TSD.
C. What is the rule deficiency?
The following provision does not satisfy the requirements of
section 110 and part D of the Act and prevents full approval of the SIP
revision.
1. Section 5.1 of the Rule establishes the emission limits. With
the exception of the NOX emission limit for biomass fuel-
fired units, SJVAPCD has not adequately demonstrated that the
NOX emission limits (i.e., NOX limits for units
burning municipal solid waste or other solid fuels, such as coal)
satisfy RACT requirements. As explained further in the TSD for this
proposed action, EPA's 1994 Alternative Control Techniques Document for
NOX emissions from ICI Boilers contains lower emission
ranges for such boilers. Source-specific information from the SJVAPCD
also indicate that emission limits lower than those in Rule 4352 are
reasonably achievable.
D. EPA Recommendations To Further Improve the Rule
The TSD describes additional rule revisions that we recommend for
the next time the local agency modifies the rule.
E. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is
proposing a limited approval of the submitted rule to improve the SIP.
If finalized, this action would incorporate the submitted rule into the
SIP, including those provisions identified as deficient. This approval
is limited because EPA is simultaneously proposing a limited
disapproval of the rule under section 110(k)(3). If this disapproval is
finalized, sanctions will be imposed under section 179 of the Act
unless EPA approves subsequent SIP revisions that correct the rule
deficiencies within 18 months of the disapproval. These sanctions would
be imposed according to 40 CFR 52.31. A final disapproval would also
trigger the 2-year clock for the federal implementation plan (FIP)
requirement under section 110(c). Note that the submitted rule has been
adopted by the SJVAPCD, and EPA's final limited disapproval would not
prevent the local agency from enforcing it.
We will accept comments from the public on the proposed limited
approval and limited disapproval for the next 30 days.
III. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. 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,
[[Page 65044]]
small not-for-profit enterprises, and small governmental jurisdictions.
This 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).
D. Unfunded Mandates Reform Act
Under sections 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
costs to State, local, or tribal governments in the aggregate; or to
the 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 proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action proposes to
approve 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.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.
EPA specifically solicits additional comment on this proposed rule
from tribal officials.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 19, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9-29351 Filed 12-8-09; 8:45 am]
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