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

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[Federal Register: September 1, 2000 (Volume 65, Number 171)]
[Rules and Regulations]
[Page 53181-53185]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se00-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 217-024B; FRL-6852-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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.

[[Page 53182]]

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.

----------------------------------------------------------------------------------------------------------------
Local agency Rule Title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.................................... 4354 Glass Melting Furnaces......... 04/16/98 09/29/98
----------------------------------------------------------------------------------------------------------------

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.

[[Page 53183]]

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

[[Page 53184]]

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

[[Page 53185]]

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.

Dated: August 4, 2000.
John Wise,
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)(266)(i)(B) to
read as follows:

Sec. 52.220 Identification of plan.

* * * * *
(c) * * *
(266) * * *
(i) * * *
(B) San Joaquin Valley Unified Air Pollution Control District.
(2) Rule 4354, adopted on April 16, 1998.
* * * * *
[FR Doc. 00-22379 Filed 8-31-00; 8:45 am]
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Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

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