Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; San Joaquin Valley Unified Air Pollution Control District, Sacramento Metropolitan Air Quality Management District

I. Applicability

The rules being approved into the California SIP include: SJVUAPCD's Rule 4352, Solid Fuel Fired Boilers, Steam Generators and Process Heaters, and SMAQMD's Rule 413, Stationary Gas Turbines. The SJVUAPCD rule was submitted by the California Air Resources Board (CARB) to EPA on March 26, 1996 and the SMAQMD rule was submitted on May 18, 1998.

II. Background

On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or the Act) 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 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 guidance on 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. The San Joaquin Valley Area is classified as serious; the Sacramento Metro Area is 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\ San Joaquin Valley 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). The Sacramento Metro Area was reclassified from serious to severe on June 1, 1995. See 60 FR 20237 (April 25, 1995). ---------------------------------------------------------------------------

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 not later than May 31, 1995. The State of California submitted many revised RACT rules for incorporation into its SIP on March 26, 1996 and May 18, 1998, including the rules being acted on in this document. This document addresses EPA's direct-final action for SJVUAPCD Rule 4352, Solid Fuel Fired Boilers, Steam Generators and Process Heaters, and SMAQMD Rule 413, Stationary Gas Turbines. SJVUAPCD adopted Rule 4352 on October 19, 1995 and SMAQMD adopted Rule 413 on May 1, 1997. These submitted rules were found to be complete on May 5, 1996 and July 17, 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. SJVUAPCD's Rule 4352 controls emissions of NOX from solid fuel fired boilers, steam generators and process heaters and SMAQMD's 413 controls emissions of NOX from stationary gas turbine operations. The rules were adopted as part of SJVUAPCD's and SMAQMD'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 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 do 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. Rule 4352 limits emissions of oxides of nitrogen (NOX) and carbon monoxide (CO) from solid fuel fired boilers, steam generators, and process heaters within the San Joaquin Valley Area. The SIP version of Rule 4352 has emission limits that was previously determined to meet the reasonably available control technology (RACT) requirements. The rule also has enforceability elements such as applicability, definitions, recordkeeping, test methods, and compliance schedule. Rule 4352 was revised to allow the use of CARB Method 100, an alternative test method, to provide flexibility to owners/operators and simplify the compliance determination. This alternative test method may be used for measuring NOX and CO emissions, and for measuring the stack gas oxygen. CARB Method 100 has been approved by EPA. Rule 413 limits NOX emissions from stationary gas turbines with ratings equal or greater than 0.3 megawatt (MW) within the SMAQMD area. The current version of Rule 413 has provisions for emission limits that meets the California Air Resources Board (CARB) reasonably available control technology and best available retrofit control technology (RACT/BARCT) emission limits for gas turbines. The rule also has enforceability elements such as applicability, definitions, monitoring, recordkeeping, test methods, and compliance schedules. All these elements are already in the SIP approved version of the rule. Rule 413 is being revised to change and improve clarity to some provisions in the rule. Specifically, the changes are the following: (1) exempts emergency standby units from the requirement to install continuous emission monitoring systems (CEM); instead, these units will install meters to record the time they operate; (2) exempt units removed from service by May 31, 1997 from the requirement to install CEMs; (3) identifies clearly exempted emergency standby units according to the type of emergency and established limits for the total hours of operation allowed per year for each unit. 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 SJVUAPCD's Rule 4352 and SMAQMD's Rule 413, dated January 20, 1999. EPA has evaluated the submitted rules and has determined that they are consistent with the CAA, EPA regulations, and EPA policy. Therefore, SJVUAPCD's Rule 4352, Solid Fuel Fired Boiler, Steam Generators and Process Heaters, and SMAQMD's Rule 413, Stationary Gas Turbines 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. 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. 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 SIP revision should adverse comments be filed. This rule will be effective April 12, 1999 without further notice unless the agency receives adverse comments by March 15, 1999. If the EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule 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 action will be effective April 12, 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, entitled ``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 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. If the mandate is unfunded, EPA must 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 written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 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 does not involve decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly affects 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. If the mandate is unfunded, 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 rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. 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 April 12, 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: January 14, 1999. Felicia Marcus, Regional Administrator, Region 9. 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 paragraphs (c)(230)(i)(D)(1) and (255)(i)(A)(4) to read as follows:

Sec. 52.220 Identification of plan.

* * * * * (c) * * * (230) * * * (i) * * * (D) San Joaquin Valley Unified Air Pollution Control District. (1) Rule 4352, amended on October 19, 1995. * * * * * (255) * * * (i) * * * (A) * * * (4) Rule 413, amended May 1, 1997. * * * * * [FR Doc. 99-3143 Filed 2-10-99; 8:45 am] BILLING CODE 6560-50-P