Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Kern County Air Pollution Control District; Mojave Desert Air Quality Management District; Ventura County Air Pollution Control District

I. Applicability

The rules being approved into the California SIP include: KCAPCD's Rule 425.3, Portland Cement Kilns (Oxide of Nitrogen); MDAQMD's Rule 1158, Electric Power Generating Facilities; and VCAPCD's Rule 59, Electric Power Generating Equipment--Oxides of Nitrogen Emissions. These rules were submitted by the California Air Resources Board (CARB) to EPA on October 19, 1994 (Rule 425.3) and March 10, 1998 (Rule 1158 and Rule 59).

II. Background

On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or the Act) 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 CAA. 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 the requirements of section 182(f). The November 25, 1992, proposed rule 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 section 182(c), (d), and (e)) as are applied to major stationary sources of volatile organic compounds (VOCs), in moderate or above ozone nonattainment areas. Kern County area is classified as serious; the Southeast Desert Air Basin managed by MDAQMD and the Ventura County area are classified as severe; 1 therefore these areas were subject to the RACT requirements of section 182(b)(2), cited below, and the November 15, 1992 deadline. ---------------------------------------------------------------------------

\1\ Kern County area, Ventura County area, and Southeast Desert Air Basin managed by MDAQMD retained their designations 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 56 FR 56694 (November 6, 1991). ---------------------------------------------------------------------------

Section 182(b)(2) requires submittal of RACT rules for major stationary sources of VOC emissions (not covered by a pre-enactment control techniques 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. The State of California submitted many RACT rules for incorporation into its SIP on October 19, 1994, March 3 and 10, 1998 including the rules being acted upon in this document. This document addresses EPA's direct-final action for KCAPCD Rule 425.3, Portland Cement Kilns (Oxides of Nitrogen); MDAQMD Rule 1158, Electric Power Generating Facilities; and VCAPCD Rule 59, Electric Power Generating Equipment-- Oxides of Nitrogen Emissions. KCAPCD adopted Rule 425.3 on October 13, 1994, MDAQMD adopted Rule 1158 on August 25, 1997, and VCAPCD adopted Rule 59 on July 15, 1997. The submitted KCAPCD's Rule 425.3 was found to be complete on October 21, 1994; MDAQMD's Rule 1158 and VCAPCD's Rule 59 were found to be complete on May 21, 1998 pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V 2 and are being finalized for approval into the SIP. By today's document, EPA is taking direct final action to approve these rules into the Federally approved SIP. ---------------------------------------------------------------------------

\\ 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). ---------------------------------------------------------------------------

NOX emissions contribute to the production of ground level ozone and smog. KCAPCD's Rule 425.3 controls emissions of NOX from cement kilns; MDAQMD's Rule 1158 and VCAPCD's Rule 58 control emissions of NOX from electric power generating facilities. These rules were adopted as part of KCAPCD's, MDAQMD's, and VCAPCD's efforts to achieve the National Ambient Air Quality Standards (NAAQS) for ozone and in response to the CAA requirements cited above. The following is EPA's evaluation and final action for these rules.

III. EPA Evaluation and 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 this action, appears in various EPA policy guidance documents.3 Among these provisions is the requirement that a NOX rule must, at a minimum, provide for the implementation of RACT for stationary sources of NOX emissions. ---------------------------------------------------------------------------

\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 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). ---------------------------------------------------------------------------

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 is issuing alternative control technique documents (ACTs), that identify alternative controls for 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. There is currently no version of KCAPCD Rule 425.3, Portland Cement Kilns in the SIP. Rule 425.3 controls NOX emissions from Portland cement kilns operated within the Kern County area. The submitted rule includes the following provisions: applicability, exemptions, definitions, emission limits, compliance determination and monitoring, recordkeeping, test methods, and compliance schedule. EPA developed alternative control technique (ACT) documents for categories of stationary sources that either emit or have the potential to emit 25 tons per year or more of NOX, to assist states in making RACT determinations. However, the ACTs do not establish a presumptive norm for what is considered RACT for stationary sources of NOX. Cement kilns have been identified as a major stationary source that emit more than 25 tons of NOX per year. The ACT for cement kilns provides technical information for use by state and local agencies to develop and implement regulatory programs to control NOX emissions from cement manufacturing operations. The ACT reports a range of NOX emission factors from 0.90 to 19.5 lbs./ton for different cement kiln types and processes. Rule 425.3 sets RACT NOX emission limits at 11.6 lbs./ ton of clinker produced averaged on a 24 consecutive hour period and/or at 6.4 lbs./ton of clinker produced averaged on a 30 consecutive day period. These limits were set based on initial source tests and are comparable to other district NOX emission limits for cement kilns; they are within the ACT NOX emissions factors (0.90- 19.5 lbs./ton) for cement manufacturing operation. When reviewing rules for SIP approvability, EPA evaluates enforceability elements such as test methods, recordkeeping, and compliance determinations in addition to RACT emission limits. Rule 425.3 strengthens the SIP with enforceable measures such as applicability, definition, emission limits, recordkeeping, test methods, and compliance schedule. Therefore, Rule 425.3 meets the federal RACT by meeting the above requirements. In evaluating the rule, EPA must determine whether the CAA requirement that RACT will be implemented by May 31, 1995 is met. The rule requires final compliance by May 31, 1995. Kilns that need to retrofit are allowed full compliance by May 31, 1997. Rule 425.3 meets EPA's RACT guideline and May 31, 1995 implementation requirements by requiring RACT be implemented by May 1997 and interim measures including submission of a compliance plan, and an application for authority to construct, are met to ensure progress toward final compliance with the rule. There is currently no version of MDAQMD's Rule 1158, Electric Power Generating Facilities in the SIP. Rule 1158 controls NOX emissions from electric power generating facilities within the Southeastern Desert Air Basin managed by MDAQMD. The submitted rule includes the following provisions: applicability, emission limits, exemptions, monitoring requirements, recordkeeping, averaging time, test methods, definitions, and compliance schedule. EPA established RACT emission levels for electric utility boilers and recommended for other source categories that States/Districts make RACT determinations comparable to those EPA established for electric utility boilers. This comparability should be based on several factors including cost, cost-effectiveness, and emission reductions. The CARB RACT/BARCT Guidance 4 document for stationary gas turbines suggests the NOX limits of 42 ppm (gas-fired) and 65 ppm (liquid-fired) for units rated 0.30 MW and greater. EPA has used the NOX Supplement to the General Preamble (NOX Supplement) document and the CARB's RACT/BARCT Guidance for gas turbines in evaluating Rule 1158 for consistency with the CAA's RACT requirements. ---------------------------------------------------------------------------

\4\ Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for gas turbines (RACT/ BARCT Guidance for stationary gas turbines), California Air Resources Board, May 18, 1992. ---------------------------------------------------------------------------

The RACT limits for utility boilers range 0.20-0.30 pounds of NOX per million Btu (lbs./MMBtu) (167-251 ppm) for burning gaseous and liquid fuels. The emission limits in CARB's RACT/BARCT determination (42/65 ppm) are generally comparable to those specified in the NOX Supplement for electric utility boilers. Rule 1158's NOX emission limits ((70-125 ppm) gas-fired and (115-225 ppm) liquid-fired) for boilers, and (42 ppm (gas-fired) and 65 ppm (liquid-fired) for combined-cycle gas turbines are below or within the NOX Supplement allowable emission limits (167-251 ppm) for electric utility boilers and the CARB's RACT/BARCT Guidance emission limits (42/65 ppm) for gas turbines. The rule is generally consistent with EPA guidelines and CARB's RACT/BARCT Guidance requirements. The rule contains enforceability measures such as applicability, emission limits, exemptions, monitoring requirements, recordkeeping, averaging time, test methods, definitions, and compliance schedule. The rule also requires final compliance with the emission limits by May 31, 1995. Therefore, Rule 1158 meets the federal RACT guidance and the May 31, 1995 implementation deadline by meeting the above requirements. On January 22, 1997, EPA approved into the SIP a version of Rule 59, Electric Power Generating Equipment that had been revised by VCAPCD on October 12, 1993. Revisions to this rule were subsequently adopted on July 15, 1997 and submitted to EPA. VCAPCD's submitted Rule 59, Electric Power Generating Equipment--Oxides of Nitrogen Emissions includes the following significant changes from the current SIP: • Rule 59 has been revised so it will apply to any owner/ operator of electric power generating steam boilers within VCAPCD area; • A threshold heat input capacity greater than 300 million British Thermal Unit per hour (MMBtu/hr) has been added; • The NOX emission limits have been changed to a uniform and more stringent limit of 0.10 pounds per megawatt hour (lbs./MW-hr); • The use of continuous emission monitoring (CEM) system to determine compliance has been added; • Compliance period has been changed from the rolling twenty-four hours to an hourly average not to exceed twenty-four hours; • Use of 40 CFR 75.10(d)(1) provisions in lieu of the hourly calculation of NOX emission rates; • Clarification of the 96-hours exemption during fuel oil system tests; • Recordkeeping has been increased from four to five years; • Deletion of extraneous provisions and obsolete requirements in the rule; and

• Other minor changes of the rule to improve clarity. When reviewing rules for SIP approvability, EPA evaluates enforceability elements such as test methods, recordkeeping, and compliance determinations as well as RACT emission limits. All these elements are already in the SIP-approved version of the rule. The revised rule is more stringent than the SIP approved version of the rule, which was previously determined to meet RACT requirements. EPA believes the addition of 300 MMBtu/hr applicability cut-off and the changing of the compliance period from a 24-hour averaging to a flexible hourly average is not a relaxation restricted under 110(l) of the Act because the heat rate ratings of the existing units affected by this amendment are much higher than the 300 MMBtu/hr cut-off and the hourly averaging is more stringent than the 24-hour average compliance period. The additional reduction obtained beyond those attributable to RACT are assumed necessary for VCAPCD's attainment planning purposes. A more detailed discussion of the sources controlled, the controls required, and the justification for why these controls represent RACT can be found in the Technical Support Documents (TSDs) for KCAPCD's Rule 425.3, MDAQMD's Rule 1158, and VCAPCD's Rule 59 dated June 1, 1999. EPA has evaluated the submitted rules and has determined that they are consistent with the CAA, EPA regulations and EPA policy. Therefore, KCAPCD's Rule 425.3, Portland Cement Kilns (Oxides of Nitrogen), MDAQMD's Rule 1158, Electric Power Generating Facilities, and VCAPCD's Rule 59, Electric Power Generating Equipment--Oxides of Nitrogen Emissions are being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a), section 182(b)(2), section 182(f) and the NOX Supplement to the General Preamble. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective September 20, 1999 without further notice unless the Agency receives adverse comments by August 19, 1999. If the EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 20, 1999 and no further action will be taken on the proposed 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.

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.

G. Submission to Congress and the Comptroller General

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. This rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 20, 1999. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compound.

Note: Incorporation by reference of the State Implementation Plan for the State of California was approved by the Director of the Federal Register on July 1, 1982.

Dated: June 29, 1999. Laura K. Yoshii, Acting Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

2. Section 52.220 is amended by adding paragraph (c)(202)(i)(B), (c)(254)(i)(H)(2) and (c)(254)(i)(K) to read as follows:

Sec. 52.220 Identification of plan.

* * * * * (c) * * * (202) * * * (i) * * * (B) Kern County Air Pollution Control District. (1) Rule 425.3, adopted on October 13, 1994. * * * * * (254) * * * (i) * * * (H) * * * (2) Rule 1158, adopted on February 22, 1995 and amended on August 25, 1997. * * * * * (K) Ventura County Air Pollution Control District. (1) Rule 59, adopted on October 6, 1969 and amended on July 15, 1997. * * * * * [FR Doc. 99-18360 Filed 7-19-99; 8:45 am] BILLING CODE 6560-50-P