Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing a limited approval and limited disapproval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This action was proposed in the Federal Register on October 28, 1999 and concerns Oxide of Nitrogen (NO_X) emissions from glass melting plants. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), this action simultaneously approves local rules that regulate these emission sources and directs California to correct rule deficiencies.

EFFECTIVE DATE:

This rule is effective on October 2, 2000.

ADDRESSES:

You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted rule revisions at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 2020 “L” Street, Sacramento, CA 95812.

San Joaquin Valley Unified Air Pollution Control District, 1990 East Gettysburg Ave., Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT:

Ed Addison, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1160.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

I. Proposed Action

On October 28, 1999 (64 FR 58008), EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. The broad start-up exemption in section 4.2 and 3.17.

2. The broad idling exemption in section 4.2 and 3.8.

3. The broad shut-down exemption in section 4.2 and 3.16.

4. The first equation in section 5.3.

5. The lack of final compliance dates in section 7.

6. The averaging provisions in section 9.

Our proposed action contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. On December 13, 1999 (64 FR 69448) we reopened this comment period for an additional 16 days. During the comment period, we received comments from the following parties.

1. David Jones, SJVUAPCD; letter dated December 28, 1999.

2. James Benney, Primary Glass Manufacturers Council (PGMC); letter dated November 24, 1999.

3. D.K. Green, PPG Industries, Inc. (PPG); letter dated November 24, 1999.

4. Phillip Newell, Guardian Industries Corporation (GIC); letter dated December 22, 1999.

5. Peter Okurowski, California Environmental Associates; letter dated December 29, 1999 for the Glass Packaging Institute (GPI).

The comments and our responses are summarized below.

Comment #1: Most of the commenters in some fashion commented that the start-up, idling, and/or shutdown exemptions in section 4.2 are necessary and that EPA's concerns with them are ill-founded because facilities have incentive to minimize their duration.

EPA Response: EPA appreciates that some variation in emission or operating requirements may be appropriate during these periods. However, the Clean Air Act specifically requires that any emissions limitations approved into the SIP be enforceable. 42 U.S.C. 37410 (a)(2)(A). In addition, 40 CFR part 51, appendix V, requires any rules approved into a SIP to contain “Compliance/enforcement strategies, including how compliance will be determined in practice.” EPA has interpreted these statutory and regulatory requirements in its excess emissions policy. EPA has found that provisions like section 4.2 must include enforceable temporal and quantitative limitations tailored to minimize emissions from the specific affected sources. Some of the comments (e.g., PPG) provided information that may be useful if San Joaquin wishes to demonstrate why relatively long excess emission periods are appropriate for glass furnaces. None of the comments, however, demonstrate that section 4.2 will minimize the time and amount of excess emissions. We are particularly, although not solely, concerned that section 4.2 could allow some excess emissions to occur indefinitely and without requiring any efforts (e.g., operation of monitoring and control equipment) to reduce emissions. For these reasons, EPA has determined that section 4.2 is a deficiency because it is inconsistent with the enforceability requirements of CAA section 110(a)(2)(A).

Comment #2: SJVUAPCD commented that the 180-day start-up exemption is at least as stringent as similar provisions that EPA has approved in New Source Performance Standards (i.e., 40 CFR 60.8a) and various state permits.

EPA Response: 40 CFR 60.8a does not exempt sources from all emission requirements during a 180-day start-up period as does Rule 4354. Exemptions in the referenced state permits should have been issued based on demonstrations that any start-up exemptions were appropriate for the specific permitted technologies. Thus, for the reasons explained in response to Comment #1, EPA disagrees with this comment and continues to find the rule deficient because it lacks enforceability required by the CAA section 110(a)(2)(A).

Comment #3: SJVUAPCD commented that Rule 4354's start-up exemption complies with the various requirements of EPA's excess emissions policy.

EPA Response: EPA's excess emissions policy contains limited exemptions for specific technologies. Rule 4354's start-up exemption, however, is not limited to specific technologies because “innovative technologies” is not defined. In addition, as discussed in response to Comment #1, nothing in the rule requires that emissions be minimized during start-up (e.g., requiring the control equipment be operational). Because these two threshold requirements for enforceability as interpreted in EPA's excess emissions policy are clearly not met, we are not evaluating the remainder of this comment regarding compliance with the other requirements. In summary, EPA disagrees with the comment and continues to find the rule deficient because it lacks enforceability required by the CAA section 110(a)(2)(A).

Comment #4: GIC disagreed with EPA's statement that, “burner controls operate from the start, a SCR unit can start at 650 F., and a SNCR can begin operation at 1800 F.”

EPA Response: This statement was part of our explanation for why Rule 4354's start-up exemption is overly broad. Regardless of the comment, our point remains that the rule does not comply with the statutory and regulatory requirements for enforceability because sources are not required to minimize emissions, temporally and quantitatively, during start-up. While sources may not be able to achieve the Rule's Tier II emissions limitations during start-up, we believe some quantitative emission limits and/or operation requirements are appropriate and that the period for such a condition must be limited. Without such limitations, the rule fails to comply with the CAA enforceability requirements.

Comment #5: GPI commented that an annual emission limit can be inferred from Rule 4354 and individual facility permits, and that emissions during start-up and other exemption periods will not cause exceedance of this annual limit.

EPA Response: Rule 4354 establishes emission limits averaged over three hours. There is no provision in the rule allowing compliance with these limits to be averaged over a year, and we would consider any attempt to do so as a significant rule relaxation. In addition, there is currently nothing in the start-up or other exemptions that would restrict emissions to a theoretical annual emission limit or any other limit. For the reasons discussed in more detail above, the rule is deficient and EPA is finalizing this limited approval and limited disapproval.

Comment #6: GPI commented that RACT control systems are in place at all times, presumably including start-up periods.

EPA Response: Nothing in the rule currently requires operation of RACT or any other control systems during start-up. Such a requirement would, however, help address EPA's concern with the rule's existing start-up exemption.

Comment #7: GPI commented that facilities using alternatives to CEMS will test emissions many times during the first 90 days of operation.

EPA Response: EPA has determined that the rule is deficient because it fails to meet enforceability requirements unless the rule contains temporal and quantitative emission limits during start-up, regardless of how often facilities test emissions.

Comment #8: GPI would support modifying Rule 4354 to limit the period of, “beginning operational changes” to 24 hours.

EPA Response: EPA is not concerned with limiting the duration of the period of “beginning operational changes,” but with limiting the duration of the idling and other exemptions themselves.

Comment #9: GPI would support modifying Rule 4354 to require some degree of additional monitoring during periods of startup and idling to further assure EPA and SJVUAPCD that NO_X emissions do not increase during these periods.

EPA Response: No changes to EPA's action is recommended, so no response required.

Comment #10: PGMC and PPG commented that the idling exemption is only intended to apply when a facility needs to make repairs to their furnace.

EPA Response: Rule 4354 should be revised so that idling is expressly limited to those times where there is a sudden and unforeseeable breakdown that requires repairs. Also, the rule should be revised so that excess emissions that result from a breakdown are not exempt. Instead, the revised rule may be approvable if it provides that facilities may demonstrate an affirmative defense against penalties as recommended in EPA's September 20, 1999 excess emissions policy that interprets the enforcibility requirement of CAA section 110(a)(2)(A).

Comment #11: SJVUAPCD commented that EPA's interpretation of the sign “/” in the equation of section 5.3 is incorrect, and there is no need to reformat the equation to clarify that “CF” is a numerator.

EPA Response: EPA and the District agree on the purpose of this equation, and EPA does not intend to withhold approval of the rule on this issue alone. However, we think the equation as written could be misinterpreted, and we recommend it be reformatted for greater clarity.

Comment #12: Several commenters provided information to the affect that there is no need to establish a final compliance date to prevent avoidance of controls by running without a rebuild, because furnaces cannot operate forever without a rebuild.

EPA Response: For purposes of complying with the enforceability requirements of CAA section 110(a)(2)(A), we believe the District must provide a compliance trigger in the rule that is linked to furnace rebuild. However, while it is unlikely that the District and a facility will disagree on whether a triggering rebuild has occurred, we recommend eliminating this possibility by establishing a final compliance date by which the rule will enforceably require all furnaces to be rebuilt.

Comment #13: GPI would support modifying Rule 4354 to mandate compliance with the Tier 2 monitoring requirements and standards by a specified date.

EPA Response: No changes to EPA's proposed action recommended, so no response required.

Comment #14: SJVUAPCD commented that the alternative compliance option in Rule 4354 should not be treated as an economic incentive programs (EIP) and subjected to the requirements of EPA's EIP policies.

EPA Response: At least since issuance of the Emissions Trading Policy Statement (ETPS) on December 4, 1986 (51 FR 43814), EPA has consistently required averaging programs such as the alternative compliance option provided in Rule 4354, to meet EIP policy and guidance. Therefore, EPA disagrees with the comment and has determined that the rule language is deficient because it fails to require additional environmental benefit in conjunction with an averaging program.

Comment #15: GPI commented that EPA's EIP and related policies should not apply to facilities that duct multiple furnaces to a single stack for reasons other than averaging.

EPA Response: Facilities manifolding multiple furnaces and monitoring emissions at a single stack are effectively averaging, regardless of whether that is their purpose. Such facilities have the advantage of being able to offset high emitting units with low ones and are, therefore, subject to EIP and related requirements including the 10% environmental benefit.

Comment #16: GIC commented that EPA should not object to Rule 4354 because it meets all federal regulations.

EPA Response: As discussed in our proposal and further explained in our response to the comments on the proposal, several components of the rule do not comply with section 110, particularly the enforceability requirement in section 110(a)(2)(A), and part D of the federal Clean Air Act. The rule, therefore, does not comply with the CAA requirements and is not fully approvable.

Comment #17: GIC commented that EPA's concerns are not constructive at this time, and that EPA should have learned about the glass industry and raised its concerns during development of Rule 4354 from 1996-1998.

EPA Response: EPA regrets that the deficiencies raised in our proposed limited disapproval were not addressed during rule development. However, section 110 of the Clean Air Act prohibits us from approving SIP rules that violate federal requirements.

Comment #18: GPI asked that any revisions made to Rule 4354 as a result of this limited disapproval be approved by EPA quickly. GPI stated its understanding that all sections of the rule not identified as having deficiencies are acceptable to EPA.

EPA Response: If SJVUAPCD submits a revised rule that adequately corrects the deficiencies cited as the basis for our limited disapproval, EPA intends to fully approve the rule amendments and to discontinue the CAA section 179 sanctions clock expeditiously.

III. EPA Action

EPA has carefully considered and evaluated all of the comments. For the reasons stated above, however, we still consider the provisions of the rule cited in our proposal to be deficient, but that the rule overall strengthens the SIP. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. As a result, sanctions will be imposed unless CARB submits and EPA approves, amendments to Rule 4354 that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act as described in 59 FR 39832 (August 4, 1994). In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months. Note that the submitted rule has been adopted by the SJVUAPCD, and EPA's final limited disapproval does not prevent the local agency from enforcing it.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045

Executive Order 13045, entitled 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 Executive Order 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 Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C. 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 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. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

Executive Order 13121, entitled 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 (64 FR 43255, August 10, 1999), 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.

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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not a “major” rule as defined by 5 U.S.C. 804(2).

H. 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.

I. 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 October 31, 2000. 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

• Air pollution control
• Environmental protection
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

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)(266)(i)(B) to read as follows: