Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Mojave Desert Air Quality Management District

I. Applicability

The rules being approved into the California SIP include: MDAQMD's Rule 474, Fuel Burning Equipment; Rule 475, Electric Power Generating Equipment; and Rule 476, Steam Generating Equipment. The rule being removed from the SIP is MDAQMD's Rule 68, Fuel Burning Equipment--Oxide of Nitrogen. These rules were submitted by the California Air Resources Board (CARB) to EPA on March 10, 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 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 Southeast Desert Air Basin managed by MDAQMD is classified as severe; 1 therefore this area was subject to the RACT requirements of section 182(b)(2), cited below, and the November 15, 1992 deadline. ---------------------------------------------------------------------------

\1\ The Southeast Desert Air Basin 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 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. On March 10, 1998, the State of California submitted to EPA MDAQMD's Rule 474, Fuel Burning Equipment; Rule 475, Electric Power Generating Equipment; and Rule 476, Steam Generating Equipment; which were adopted by MDAQMD on August 25, 1998. These submitted rules 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. This document also addresses the State of California's request that Rule 68, Fuel Burning Equipment--Oxides of Nitrogen be removed from the SIP. By today's document, EPA is taking direct final action to approve this submittal. This final action will replace the existing versions of Rules 474, 475, and 476 in the SIP and remove Rule 68 from the 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. MDAQMD's Rules 474, 475, and 476 control emissions of NOX from fuel burning equipment, electric power generating equipment, and steam generating equipment. These rules were adopted as part of MDAQMD'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 this rule.

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. Rule 474 limits NOX emissions from non-mobile, fuel burning equipment. The rule applies to new and existing equipment with a heat input rate (HIR) of more than 1,775 million Btu per hour (MMBtu/ hr). Equipment burning gaseous fuel must meet a NOX emission limit of 125 parts per million (ppm) by volume, and equipment burning liquid or solid fuel must meet an emission limit of 225 ppm. All emission concentrations are corrected to 3.00 percent by volume stack- gas oxygen on dry basis. The current SIP approved version of Rule 474 applies to any non- mobile fuel

burning equipment and specifies NOX emission limits based on HIR in million British Thermal Unit per hour (MMBtu/hr) as follows: (1) equipment with HIR of 555 or more but less than 1786 MMBtu/hr, the emission limits are set at 300 ppm (gas-fired) and 400 ppm (liquid/ solid fuel-fired); (2) equipment with HIR of 1786 or more but less than 2143 MMBtu/hr, the emission limits are set at 225 ppm (gas-fired) and 325 ppm (liquid/solid fuel-fired); and (3) equipment with HIR of 2143 MMBtu/hr or more are set at 125 ppm (gas-fired) and 225 ppm (liquid/ solid fuel-fired). The submitted version of Rule 474 specifies NOX emission limits at 125 ppm 0.15 lbs/MMBtu (heat input rate basis) for gas-fired and 225 ppm 0.28 lbs/MMBtu for liquid-fired or solid fuel-fired. These emission limits are within the emission limit ranges (0.20 to 0.50 lbs/MMBtu) specified by EPA for utility boilers and which were previously determined to meet RACT requirements. Further, the rule emission limits are the same emission limits in Rule 68 which apply to equipment with an HIR over 1775 MMBtu/hr. Other provisions of Rule 474 have also changed since the SIP revision in 1978. MDAQMD added requirements for emissions when using a combination of gaseous fuel and liquid and/or solid fuels. It also added provisions for applicability, definitions, exemptions, monitoring and records, test methods, and compliance tests. All these provisions are more stringent than the SIP version. The current SIP approved version of Rule 475 for equipment with a HIR of more than 50 MMBtu/hr, sets the NOX emission limits at 80 ppm by volume when burning gaseous fuel, 160 ppm when burning liquid fuel, and 225 ppm when burning solid fuel. The rule also sets emission limits for PM at 5 kilograms per hour (11 lbs/hr) and 23 milligrams per cubic meter (0.01 grain/scf). Both PM limits must be met by all equipment. All limits are referenced at 3 percent stack-gas oxygen on dry basis. The submitted version of Rule 475 limits NOX emissions from non-mobile, electric power generating equipment with a maximum rated heat input of more than 50 MMBtu/hr. Rule 475 sets emission limit of 42 ppm NOX, 5 kilograms per hour (11 lbs/hr) PM, and 7.60 milligrams per cubic meter (0.003 grains/scf) PM referenced at 15% stack-gas oxygen for gas turbines. All other electric power generating equipment must meet existing SIP emission limits for NOX using various types of fuels which are set at 80 ppm (gas-fired); 160 ppm (liquid-fired); 225 ppm (solid fuel-fired); and the weighted average when combination fuels are used. These NOX limits are within the emission limit ranges (0.20 to 0.50 lb/MMBtu) specified by EPA for utility boilers. Rule 475 also incorporates the existing PM emission limits of 5 kg per hour (11 lbs/hr) except for the companion emission limit (7.6 milligrams per cubic meter (0.003 grains/scf)) for gas turbines which is more stringent than what is currently in the SIP. Therefore, the submitted Rule 475 is more stringent than the SIP version because of the added provisions of more stringent emission limits for gas turbines, more stringent PM limits, and addition of enforceability measures such as applicability, definitions, exemptions, monitoring and records, test methods, and compliance schedule. The current SIP approved Rule 476 restricts NOX emissions to 125 ppm when burning gaseous fuel and 225 ppm when burning liquid or solid fuel from any steam generating equipment having a heat input rate of more than 12.5 million kilogram calories (50 MMBtu/hr). The PM emission limits are also set at 5 kilograms per hour (ll lbs/hr) and 23 milligrams per cubic meter (0.01 grain/scf). Rule 476 was significantly changed since the SIP revision in 1978. MDAQMD added requirements for determining emissions when using combination of gaseous fuel and liquid and/or solid fuels. MDAQMD also added provisions for applicability, definitions, exemptions, monitoring and records, test methods, and compliance tests. The NOX emission limits of 125 ppm 0.15 lbs/ MMBtu (heat input rate basis) for gas-fired and 225 ppm 0.28 lbs/MMBtu for oil-fired or solid fuel fired are within the emission limits ranges (0.20 to 0.50 lbs/MMBtu) specified by EPA for utility boilers. The PM emission limits of 5 kilograms per hour (ll lbs/hr) and 23 milligrams per cubic meter (0.01 grain/scf) were previously determined to meet RACT requirements and are currently in the SIP. The revised rule is also more stringent than the SIP approved version of the rule because of the addition of enforceability measures mentioned above. MDAQMD's Rule 68, Fuel Burning Equipment--Oxides of Nitrogen, was adopted in January 7, 1972 to control NOX emissions from non-mobile fuel burning equipment or other contrivances having heat input rate of more than 1775 million Btu per hour (MMBtu/hr) within the Southeast Desert Air Basin. Although Rule 68 has been rescinded by Southern California APCD, the predecessor of MDAQMD, it has been retained in the SIP because EPA previously determined Rule 474 (same title), the intended replacement, did not regulate NOX emissions from non-steam generating equipment as did previous Rule 68. To correct this deficiency, MDAQMD amended Rule 474, Fuel Burning Equipment, to cover any equipment rated over 1775 MMBtu/hr; Rule 475, Electric Power Generating Equipment, to cover any power generating equipment rated over 50 MMBtu/hr; and Rule 476, Steam Generating Equipment, to cover any steam generating equipment rated over 500 MMBtu/hr. Altogether these amended rules cover the scope and emission limitations Rule 68 currently has in the SIP. Consequently, MDAQMD is rescinding Rule 68 because it no longer serves to control emissions and is therefore extraneous. The removal of Rule 68 from the SIP is consistent with EPA's policy requirements and removes an extraneous rule. 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 Rules 68, 474, 475, and 476 dated September 24, 1998. EPA has evaluated the submitted rules and has determined that they are consistent with the CAA, EPA regulations and EPA policy. Therefore, MDAQMD's Rule 474, Fuel Burning Equipment; Rule 475, Electric Power Generating Equipment; and Rule 476, Steam Power Generating Equipment 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. Furthermore, EPA is removing applicable Rule 68 consistent with the requirements of sections 110(l) and 193. 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 the SIP revision should adverse comments be filed. This rule will be effective March 12, 1999

without further notice unless the Agency receives adverse comments by February 10, 1999. If the EPA received such comments, then EPA will publish a document withdrawing the final rule and 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 the rule. Any parties interested in commenting on the rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on March 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 is 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, 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 March 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: December 14, 1998. Lauren 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 paragraphs (c) (6)(xv)(A) and (254)(i)(H)(1) to read as follows:

Sec. 52.220 Identification of plan.

* * * * * (c) * * * (6) * * * (xv) San Bernardino County Air Pollution Control District. (A) Previously approved on December 21, 1975 and now deleted without replacement Rule 68. * * * * * (254) * * * (i) * * * (H) Mojave Desert Air Quality Management District. (1) Rules 474, 475, and 476 adopted on August 25, 1997. * * * * * [FR Doc. 99-80 Filed 1-8-99; 8:45 am] BILLING CODE 6560-50-U