[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Rules and Regulations]
[Pages 60623-60632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24686]



[[Page 60623]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0711; FRL-9207-7]


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 December 9, 
2009 and concerns oxides of nitrogen (NO<INF>X</INF>) emissions from 
solid fuel fired boilers, steam generators and process heaters. Under 
authority of the Clean Air Act as amended in 1990 (CAA or the Act), 
this action simultaneously approves a local rule that regulates these 
emission sources and directs California to correct rule deficiencies.

DATES: Effective Date: This rule is effective on November 1, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0711 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Idalia Perez, EPA Region IX, (415) 
972-3248, <a href="/cdn-cgi/l/email-protection#6a1a0f180f1044030e0b06030b2a0f1a0b440d051c"><span class="__cf_email__" data-cfemail="50203522352a7e3934313c3931103520317e373f26">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On 12/09/09 (74 FR 65042), EPA proposed a limited approval and 
limited disapproval of the following rule that the SJVUAPCD submitted 
for incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
            Local agency                  Rule No.            Rule title            Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD............................            4352   Solid Fuel Fired               05/18/06         10/05/06
                                                        Boilers, Steam
                                                        Generators and Process
                                                        Heaters.
----------------------------------------------------------------------------------------------------------------

    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 do not satisfy the requirements of section 110 and 
part D of the Act. Specifically:
    <bullet> Section 5.1 of the Rule establishes the emission limits. 
We proposed to find that, with the exception of the NO<INF>X</INF> 
emission limit for biomass fuel-fired units, SJVUAPCD has not 
adequately demonstrated that the NO<INF>X</INF> emission limits (i.e., 
NO<INF>X</INF> limits for units burning municipal solid waste or other 
solid fuels, such as coal) satisfy Reasonably Available Control 
Technology (RACT) requirements. As explained further in the TSD for the 
proposed action, EPA's 1994 Alternative Control Techniques Document for 
NO<INF>X</INF> emissions from Industrial/Commercial/Institutional 
Boilers (1994 ACT) contains lower emission ranges for similar boilers. 
Source-specific information from the SJVUAPCD also indicates that 
emission limits lower than those in Rule 4352 are reasonably 
achievable.
    We are now disapproving all of the NO<INF>X</INF> emission limits 
in Rule 4352, including the limit for biomass fuel-fired units, because 
the District has not adequately demonstrated that these limits satisfy 
RACT. Our proposed action and our response to comments below contain 
more information on the basis for this rulemaking and our evaluation of 
the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from the following parties.
    1. Sarah Jackson, Earthjustice; letter and e-mail dated and 
received January 8, 2010.
    2. Seyed Sadredin, SJVUAPCD; letter dated January 8, 2010 and 
received January 11, 2010.
    The comments and our responses are summarized below.
    Comment #1: Earthjustice supported EPA's proposed disapproval of 
the NO<INF>X</INF> emission limits in Rule 4352 for municipal solid 
waste-burning and other solid fuel-burning units and agreed that the 
District had failed to demonstrate that these limits satisfy CAA RACT 
requirements.
    Response #1: No response needed.
    Comment #2: Earthjustice disagreed with EPA's proposal to approve 
the NO<INF>X</INF> emission limit in Rule 4352 for biomass-fired units 
as RACT. Earthjustice provided several arguments in support of its 
objection to EPA's proposal, each of which we address in separate 
comment summaries below.
    Response #2: Although we do not agree with all of the arguments 
provided in support of this comment, we have changed our position based 
on this comment and agree that the District has failed to provide 
adequate support for its conclusion that the NO<INF>X</INF> emission 
limit in Rule 4352 for biomass-fired units satisfies RACT. We believe 
our conclusion on this issue is a logical outgrowth of our proposed 
rule.
    Comment #2.a: Earthjustice challenged EPA's conclusion that the 
NO<INF>X</INF> emission limit of 115 ppm at 3% O<INF>2</INF> for 
biomass-fired units in Rule 4352 is more stringent than the level 
provided in EPA's 1994 ACT, given that the 1994 ACT provides achievable 
NO<INF>X</INF> levels ranging from 23 to 155 ppm at 3% O<INF>2</INF> 
for wood-fired boilers with fluidized bed combustors. Additionally, 
Earthjustice asserted that this range of NO<INF>X</INF> emission levels 
undermines EPA's conclusion that the 40 ppm limit in other districts' 
rules is not feasible.
    Response #2.a: We acknowledge that our previous statement that Rule 
4352's requirements for biomass-fired units are more stringent than the 
levels in the 1994 ACT was not entirely accurate. In this action, we 
are clarifying that the NO<INF>X</INF> emission limit in Rule 4352 for 
biomass-fired boilers (115 ppm at 3% O<INF>2</INF>) falls in the mid-
range of achievable emission levels provided in the 1994 ACT for this 
source category (24 ppm to 187 ppm at 3% O<INF>2</INF>).\1\
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    \1\ The range of emission levels that Earthjustice identifies 
(23 to 155 ppm at 3% O<INF>2</INF>) are presented in the TSD for our 
proposed action and are calculated based on the lb/MMBtu values 
shown in Table 2-6 of the ACT. We note, however, that the values 
presented in Appendix B of the ACT (24 ppm to 187 ppm at 3% 
O<INF>2</INF>) are more reliable because they were compiled from 
numerous sources including technical reports, EPA documents, 
compliance records, and manufacturers' literature, while Table 2-6 
is simply a summary of Appendix B.

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[[Page 60624]]

    As to the commenter's assertion that the range of emission levels 
in the 1994 ACT undermines EPA's conclusion that a NO<INF>X</INF> limit 
of 40 ppm is not feasible for biomass-fired boilers, however, we 
disagree. In the TSD for our proposal, we referenced a 40 ppm 
NO<INF>X</INF> emission limit based on SJVUAPCD's April 16, 2009 RACT 
SIP analysis, which identified four other California districts' rules 
that contain emission limits of 40 ppm at 3% O<INF>2</INF> for units 
firing ``non-gaseous fuels'': The South Coast Air Quality Management 
District (SCAQMD) Rule 1146 (as amended September 5, 2008); Sacramento 
Metropolitan Air Quality Management District (SMAQMD) Rule 411 (as 
amended August 23, 2007); Bay Area Air Quality Management District 
(BAAQMD) Regulation 9 Rule 7 (as amended July 30, 2008) \2\; and 
Ventura County Air Pollution Control District (VCAPCD) Rule 74.15 (as 
amended November 8, 1994). See SJVUAPCD, RACT Demonstration for Ozone 
SIP, Chapter 4: Rule Analysis, at 4-64 to 4-67 (April 16, 2009) (``RACT 
SIP analysis''). In response to this comment, we contacted each of 
these districts to determine whether there are any biomass-fired units 
subject to the NO<INF>X</INF> emission limits in these rules. None of 
these districts provided information indicating that any biomass-fired 
boiler has achieved a NO<INF>X</INF> limit of 40 ppm at 3% 
O<INF>2.</INF>
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    \2\ The District's RACT SIP analysis provides an incorrect 
adoption date of November 7, 2007, for this regulation. The version 
of Regulation 9 Rule 7 that is currently effective in the Bay Area 
was last amended on July 30, 2008. See e-mail dated August 11, 2010, 
from Dan Belik (BAAQMD) to Idalia Perez (EPA Region 9).
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    Specifically, we are not aware of any biomass-fired boiler that is 
or has been subject to the 40 ppm NO<INF>X</INF> emission limit in 
VCAPCD Rule 74.15 or SCAQMD Rule 1146.\3\ See e-mail dated June 7, 
2010, from Kerby Zozula (VCAPCD) to Shirley Rivera (EPA Region 9); e-
mail dated August 10, 2010, from Charles Tupac (SCAQMD) to Idalia Perez 
(EPA Region 9). The BAAQMD has issued one permit for a biomass-fired 
unit at a facility called Standard Structures, Inc., but we have no 
information indicating that this unit is achieving emission levels as 
low as 40 ppm at 3% O<INF>2</INF>. See e-mail dated June 7, 2010, from 
Barry Young (BAAQMD) to Shaheerah Kelly (EPA Region 9); Facsimile 
Transmittal dated June 8, 2010, attaching Evaluation Report and 
Engineering Evaluation for Standard Structures, Inc., from Art Valla 
(BAAQMD) to S. Kelly (EPA Region 9); e-mail dated June 8, 2010, from 
Charles McClure (BAAQMD) to Idalia Perez (EPA Region 9). In the 
Sacramento Metro area, one source has operated a biomass-fired boiler 
in the past 20 years, but that source was subject to an earlier version 
of SMAQMD's Rule 411 containing significantly higher NO<INF>X</INF> 
emission limits until it ceased operating in March 1996. See Response 
<greek-i>2.b, below. We have no information indicating that a 
NO<INF>X</INF> emission level of 40 ppm at 3% O<INF>2</INF> is 
generally achievable for biomass-fired units, and the commenter has not 
identified any such information.
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    \3\ Note that SCAQMD Rule 1146 applies only to ``combustion 
equipment fired with liquid and/or gaseous (including landfill and 
digester gas) and/or solid fossil fuel. * * *'' Rule 1146 (as 
amended September 5, 2008), sections (a), (b)(4), and (b)(12) 
(emphasis added). As such, this rule does not apply to biomass-fired 
units.
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    ACT documents describe available control techniques and their cost 
effectiveness but do not define presumptive RACT levels as the CTGs do. 
The 1994 ACT (at Appendix B, pages B20-B21) identifies NO<INF>X</INF> 
emission levels for biomass-fueled boilers ranging from 24 ppm to 187 
ppm at 3% O<INF>2</INF>, based on the use of SNCR controls with ammonia 
or urea injection. This wide range of emission levels reflects the 
broad technical diversity among the types of boilers that fire biomass 
as fuel, including stokers, circulating fluidized bed boilers and 
bubbling fluidized bed boilers. It also reflects the variety of fuels 
that the term ``biomass'' covers, including various kinds of plant 
materials, wood materials and agricultural wastes.
    Given the broad technical diversity of existing biomass-fired 
boilers and their varying fuel compositions, the NO<INF>X</INF> 
emission levels achievable for one operation (e.g., 24 ppm) may not 
necessarily be achievable for others. Even where boiler type, control 
technology, and fuel type are the same, achievable emission levels may 
differ significantly from boiler to boiler depending on a number of 
site-specific factors, including furnace dimensions and operating 
characteristics, design and condition of burner controls, design and 
condition of stream control systems, and fan capacity. See, for 
example, 1994 ACT Appendix B (at page B-20), showing achievable 
NO<INF>X</INF> emission levels ranging from 25 to 160 ppm at 3% 
O<INF>2</INF> for wood-fired stoker boilers using SNCR with ammonia 
injection.
    Thus, the range of emission levels for biomass-fired boilers in the 
1994 ACT does not necessarily establish that a NO<INF>X</INF> emission 
level of 40 ppm at 3% O<INF>2</INF> is reasonably achievable for such 
boilers generally. It does, however, warrant a more detailed evaluation 
of the biomass-fired units in the SJV area, as discussed further below.
    Comment #2.b: Earthjustice asserted that the District's claim that 
there are no solid-fuel fired units in the Sacramento area that 
currently meet the 70 ppm limit in the SMAQMD's Rule 411 is 
``misleading and irrelevant to answering the feasibility question.'' 
Earthjustice stated that according to CARB and SMAQMD staff, ``there 
was, in fact, at least one source in the Sacramento Metropolitan air 
district that burned biomass as a fuel, and that source met the 
emission limit of this rule until it decided to switch to landfill gas 
as a fuel source.'' In support of these assertions, Earthjustice 
referenced a letter to EPA dated June 29, 2007, in which it had made 
these same assertions. Earthjustice concluded that the SMAQMD's 
NO<INF>X</INF> limit of 70 ppm for biomass-fired units in Rule 411 
``has been demonstrated as feasible,'' and that ``EPA must conduct its 
own review of the feasibility of Sacramento's limit,'' rather than 
``rely[] on the District's misleading claims.''
    Response #2.b: First, the difference between the limit in SMAQMD's 
Rule 411 and the limit in SJVUAPCD's Rule 4352 is not as significant as 
the commenter contends. The current 70 ppm NO<INF>X</INF> emission 
limit in Rule 411 is expressed in parts per million corrected to 12% 
carbon dioxide (ppm at 12% CO<INF>2</INF>), which equates to 
approximately 100 ppm at 3% O<INF>2</INF>. See Rule 411 (as amended 
August 23, 2007), section 303.1.\4\ As such, the appropriate comparison 
is between a limit of 100 ppm at 3% O<INF>2</INF> (not 70 ppm at 3% 
O<INF>2</INF>) in SMAQMD's Rule 411 and a limit of 115 ppm at 3% 
O<INF>2</INF> in SJVUAPCD's Rule 4352.
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    \4\ We have converted the emission limit into its approximate 
equivalent at 3% O<INF>2</INF> to allow for more direct comparison 
to the emission limits in SJVUAPCD Rule 4352 and the other rules we 
have evaluated, which are also generally expressed in ppm at 3% 
O<INF>2</INF>. Briefly, using equations available in EPA Method 3B 
along with F Factors obtained from Method 19, we calculated the 
O<INF>2</INF> that should be obtained during combustion if there is 
12% CO<INF>2</INF> in the flue gas and corrected the NO<INF>2</INF> 
concentration obtained to 3% O<INF>2</INF>.
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    Second, to the extent the commenter intended to argue that an 
emission level of 70 ppm at 3% O<INF>2</INF> has been achieved in the 
Sacramento area, this argument is unsupported. In both the comments 
submitted for this rulemaking and the June 29, 2007 comment letter, 
Earthjustice refers to, without identifying, a source in the Sacramento

[[Page 60625]]

Metropolitan area that at some point burned biomass and that met the 
emission limits in Rule 411 before it decided to switch to landfill gas 
as a fuel source. It appears that Earthjustice is referring to an 
almond processing facility called Blue Diamond, which we understand was 
the only source in the Sacramento Metropolitan area to have operated a 
biomass-fired boiler in the past 20 years. See e-mail dated May 13, 
2010, from Bruce Nixon (SMAQMD) to Idalia Perez (EPA Region 9).
    According to SMAQMD staff, the Blue Diamond facility ceased 
operations in March 1996. See e-mail dated February 8, 2010, from Bruce 
Nixon (SMAQMD) to Idalia Perez (EPA Region 9). Prior to this time, the 
facility was subject to Rule 411 as adopted on February 2, 1995, which 
contained a limit for NO<INF>X</INF> emissions from biomass-fired 
boilers of 110 ppm at 12% CO<INF>2,</INF> or approximately 156 ppm at 
3% O<INF>2</INF>.\5\ See Section 303.1, Rule 411 (as adopted February 
2, 1995). Notably, this limit was significantly higher than the 
NO<INF>X</INF> limit for biomass-fired boilers in SJVUAPCD's current 
Rule 4352 (115 ppm at 3% O<INF>2</INF>). Assuming Blue Diamond's 
biomass-fired boiler was in compliance with the applicable limit in the 
1995 version of Rule 411, i.e., approximately 156 ppm at 3% 
O<INF>2</INF>, this does not demonstrate that a NO<INF>X</INF> emission 
limit of 70 ppm at 3% O<INF>2</INF> is achievable.\6\
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    \5\ See fn. 4, supra, for an explanation of the conversion 
methodology from ppm at 12% CO<INF>2</INF> to ppm at 3% 
O<INF>2</INF>.
    \6\ The 1995 version of SMAQMD Rule 411 also contained a lower 
limit of 70 ppm at 12% CO<INF>2</INF> (~100 ppm at 3% O<INF>2</INF>) 
which took effect May 31, 1997. See Section 306.1, Rule 411 (as 
adopted February 2, 1995). On October 27, 2005, SMAQMD revised Rule 
411 by eliminating the NO<INF>X</INF> emission limit of 110 ppm at 
12% CO<INF>2</INF> (~156 ppm at 3% O<INF>2</INF>) but retaining the 
NO<INF>X</INF> emission limit of 70 ppm at 12% CO<INF>2</INF> (~100 
ppm at 3% O<INF>2</INF>). At that time, however, no facility in the 
SMAQMD area operated a biomass-fired boiler subject to this limit. 
See e-mail dated May 13, 2010, from Bruce Nixon (SMAQMD) to Idalia 
Perez (EPA Region 9).
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    Comment #2.c: Earthjustice asserted that ``the evidence EPA has put 
in the record suggests that much lower limits for biomass-fired units 
are not only reasonably available but, in fact, are already being 
achieved by just about every facility in the Valley.'' Earthjustice 
provided an excerpt from a document EPA had identified in the TSD and 
asserted that according to this document, which contained information 
about solid fuel-fired units and associated permit limits in the SJV 
area, ``[a]ll but one biomass-fired unit is already meeting the more 
stringent SMAQMD limit of 70 ppm at 12% CO<INF>2</INF> (~100 ppm at 3% 
O<INF>2</INF>) and most are permitted well below this limit * * *.'' 
Earthjustice also stated that the permitted levels do not necessarily 
reflect the level of emissions from these facilities, and that EPA 
should consider source test data for these facilities ``to aid in the 
determination of what is reasonably achievable.''
    Response #2.c: The commenter correctly notes that biomass-fired 
boilers in the SJV area are achieving NO<INF>X</INF> emission levels 
below the levels required by Rule 4352. In fact, based on information 
we have gathered in response to these comments, it appears that all of 
the existing biomass-fired boilers in the SJV area that are subject to 
Rule 4352 are achieving emission levels significantly below 115 ppm at 
3% O<INF>2</INF>. In the absence of information indicating that these 
lower emission levels are not reasonably achievable in the SJV area, we 
conclude that the District has not adequately demonstrated that the 
NO<INF>X</INF> limit in Rule 4352 (115 ppm at 3% O<INF>2</INF>) 
represents RACT.
    Ten biomass-fired boilers in the SJV area are currently subject to 
the NO<INF>X</INF> emission limit in Rule 4352. We have reviewed source 
test data for four of these units and found that each unit is achieving 
actual NO<INF>X</INF> emission levels between 44 and 79 ppm at 3% 
O<INF>2</INF>. We also evaluated source test data for two biomass-fired 
units in Placer County and one unit in Yolo County, California, which 
indicate actual NO<INF>X</INF> emission levels between 45 and 103 ppm 
at 3% O<INF>2</INF>. See Table 1. These source test results indicate 
that biomass-fired units both within the SJV area and elsewhere in 
California are currently achieving NO<INF>X</INF> emission levels 
significantly below 115 ppm at 3% O<INF>2.</INF>

                     Table 1--NOX Source Test Data for Selected Boilers Firing Biomass in CA
----------------------------------------------------------------------------------------------------------------
                                                                         Test
                Facility                         Air  district           year                Emission
----------------------------------------------------------------------------------------------------------------
Madera Power, LLC.......................  SJVUAPCD..................       2009  44.3 ppm at 3% O2.
Covanta Delano, Inc.....................  SJVUAPCD..................       2009  Unit 1--0.07 lbs/MMBtu (~54 ppm
                                                                                  at 3% O2)
                                                                                 ...............................
                                                                      .........  Unit 2--0.063 lbs/MMBtu (~49
                                                                                  ppm at 3% O2).
Sierra Power Corporation................  SJVUAPCD..................       2009  78.7 ppm at 3% O2.
Sierra Pacific Industries, Lincoln......  Placer County APCD               2009  51.2 ppm at 12% CO2 (~103 ppm
                                           (PCAPCD).                              at 3% O2).
Rio Bravo Rocklin.......................  PCAPCD....................       2009  37.6 ppm at 12% CO2 (~76 ppm at
                                                                                  3% O2)
Woodland Biomass Power, LTD.............  Yolo-Solano APCD..........       2010  45.34 ppm at 3% O2.
----------------------------------------------------------------------------------------------------------------

    The remaining six biomass-fired units in the SJV area are subject 
to NO<INF>X</INF> permit limits ranging from 62 to 83 ppm at 3% 
O<INF>2</INF>. See Table 2.

      Table 2--NOX Permit Limits for Biomass Facilities in SJVUAPCD
------------------------------------------------------------------------
          Permit No.               Size of unit          NOX Limit
------------------------------------------------------------------------
C-825.........................  317 MMBtu/hr.....  27.8 lb/hr (~83 ppm
                                                    at 3% O2).
C-1820........................  352 MMBtu/hr.....  0.08 lb/MMBTU (~62
                                                    ppm at 3% O2).
N-1026........................  259 MMBtu/hr.....  27.2 lb/hr (~83 ppm
                                                    at 3% O2).
N-4607........................  185 MMBtu/hr.....  0.08 lb/MMBtu (~83
                                                    ppm at 3% O2).
S-285.........................  11.5 MW..........  0.09 lb/MMBtu (~70
                                                    ppm at 3% O2).
C-6923........................  185 MMBtu/hr.....  0.08 lb/MMBtu (~62
                                                    ppm at 3% O2).
------------------------------------------------------------------------


[[Page 60626]]

    We note that each of the biomass-fired units located in the SJV 
area that is subject to Rule 4352 is also subject to a NO<INF>X</INF> 
emission limit representing the Best Available Control Technology 
(BACT) \7\ in its District-issued permit, and that the BACT standard 
often requires a more stringent control level than RACT. BACT 
requirements are established prior to construction on an emissions-unit 
by emissions-unit basis through the District's permitting process. See 
SJVUAPCD Rule 2201 (as amended December 18, 2008), sections 2.0 and 
4.1. RACT, on the other hand, applies to existing sources and is 
defined as the lowest emission limitation that a particular source is 
capable of meeting ``by the application of control technology that is 
reasonably available considering technological and economic 
feasibility.'' 44 FR 53762 (September 17, 1979). EPA historically has 
recommended source-category-wide presumptive RACT limits based on 
capabilities that are general to an industry, although RACT decisions 
may also be made on a case-by-case basis. See 57 FR 55620 at 55624 
(November 25, 1992) (``NOx Supplement to General Preamble''). 
Similarly, a RACT prohibitory rule may establish emission limits based 
on capabilities that are general to the covered source category, rather 
than based on source-specific analyses.
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    \7\ SJVUAPCD Rule 2201 (New and Modified Stationary Source 
Review Rule) defines BACT, in relevant part, as ``the most stringent 
emission limitation or control technique * * * achieved in practice 
for such category and class of source * * *.'' SJVUAPCD Rule 2201 
(as amended December 18, 2008), section 3.9.
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    Given the stringency and source-specific nature of the BACT 
requirement, a BACT limit established in a pre-construction permit does 
not necessarily represent RACT for the source category in general. This 
does not mean, however, that the two standards may never result in 
similar emission levels based on the same or similar controls. In some 
cases, RACT may even result in more stringent control levels than a 
source-specific control standard like BACT or the Lowest Achievable 
Emission Rate (LAER). See Memorandum dated March 30, 1994, from Tom 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, to Region V Air 
Enforcement Branch, ``Nitrogen Oxides (NOx) Questions from Ohio EPA''; 
Memorandum dated December 1, 1988, from Gerald Emison, Director, Office 
of Air Quality Planning and Standards, to William Spratlin, Director, 
Air and Toxics Division, Region VII, ``RACT Requirements in Ozone 
Nonattainment Areas'' (noting that LAER is determined at the time of 
permit issuance). Fundamentally, each of these standards requires a 
specific evaluation of the types of controls that are available to the 
source--or, in the case of a prohibitory rule, to the covered sources 
in the relevant area--taking into account, where appropriate, 
technological and economic feasibility.
    In this case, every existing biomass-fired boiler in the SJV area 
that is subject to this rule is already achieving lower NO<INF>X</INF> 
levels based on BACT controls. Absent information indicating that these 
controls may not be technologically or economically feasible for 
sources in the area, we have no basis for concluding that these 
emissions levels are not also reasonably available and appropriate as 
RACT in the SJV area.
    Comment #2.d: Earthjustice asserted that, in addition to 
identifying the control technology that can achieve a RACT level of 
control, EPA must provide an ``analysis that identifies the 
appropriately stringent emission limit within the range of control 
achievable by this technology.''
    Response #2.d: We agree that a RACT analysis generally should 
identify not only reasonably available control technologies but also 
appropriately stringent emission limitations based on these controls. 
We are disapproving all of the NO<INF>X</INF> emission limits in Rule 
4352 because the District has not adequately demonstrated that these 
limits satisfy RACT.
    Comment #3: Earthjustice asserted that EPA should evaluate the 
source test data available to it in evaluating Rule 4352, rather than 
``relying strictly on outdated technology reviews and ignoring the fact 
that SNCR and other similar technologies have radically improved over 
the last fifteen years* * *.'' Earthjustice provided a list of 
California biomass facilities at http://www.calbiomass.org/county.htm 
and stated that this could be a good starting point for EPA's 
investigation. Finally, Earthjustice reiterated its assertions that 
``[t]he 70 ppm limit for biomass-fired units in the Sacramento rule has 
been proven, not just by the source that used to operate in Sacramento, 
but also by the many biomass-burning facilities in the Valley that are 
already meeting that standard,'' and that EPA should disapprove all of 
the limits in Rule 4352 as RACT.
    Response #3: Although we do not agree with the commenter's 
assertion that a NO<INF>X</INF> emission level of 70 ppm at 3% 
O<INF>2</INF> has been achieved by a biomass-fired unit in the 
Sacramento area, our review of source test data and permits for 
biomass-fired units in the SJV area indicate that emission levels 
between 44 and 83 ppm at 3% O<INF>2</INF> are currently being achieved. 
See Responses <greek-i>2.b. and <greek-i>2.c above. We are disapproving 
all of the NO<INF>X</INF> limits in Rule 4352, including the limit for 
biomass-fired units, because the District has not demonstrated that 
these limits satisfy RACT.
    Comment #4: Earthjustice requested confirmation that any alternate 
source-specific RACT emission limit requested by the owner or operator 
of a source under section 5.4 of Rule 4352 will be approved by EPA only 
after notice and comment rulemaking.
    Response #4: We understand that section 5.4 requires the District 
to provide an opportunity for public comment on any alternate source-
specific RACT limit that it seeks to approve through issuance of a 
Permit to Operate under Rule 2520 (as amended June 21, 2001), subject 
to EPA review, as explained further below. Before we approve any 
alternate limit under this provision, EPA intends to ensure that the 
District has satisfied the procedural requirements of Rule 2520 and 
that the Permit to Operate ensures compliance with applicable CAA 
requirements, including RACT, consistent with the requirements of CAA 
title V.
    Specifically, section 5.4 of Rule 4352 states that, for a unit 
operating at or below 50 percent of the rated heat input (i.e., the 
heat input capacity specified on the nameplate of the unit), ``the 
APCO, ARB, and EPA may approve an increased emission limit if the 
owner/operator submits an application for a Permit to Operate, which 
provides a justification for the requested limit.'' Upon approval by 
the APCO, ARB, and EPA, the source owner/operator may comply with this 
higher limit in lieu of the applicable limits in Table 1 of the rule.
    Importantly, the rule allows the District, ARB, and EPA to approve 
an alternate limit only after the owner/operator submits an application 
for a Permit to Operate (PTO) that provides a justification for the 
requested limit. Any source in the SJV area that is subject to Rule 
4352 based on its potential to emit at least 10 tons per year (tpy) of 
NO<INF>X</INF> is also subject to the District's EPA-approved title V 
permit program because it is a ``major source.'' See SJVUAPCD Rule 
2520, ``Federally Mandated Operating Permits'' (as amended June 21, 
2001), sections 2.3 and 3.19 (applying program to any ``major source'' 
as defined in SJVUAPCD Rule 2201); SJVUAPCD Rule 2201, ``New and 
Modified Stationary Source Review Rule'' (as amended December 18, 
2008),

[[Page 60627]]

section 3.23 (defining ``major source'' to include any source that has 
the potential to emit at least 20,000 pounds per year (10 tpy) of 
NO<INF>X</INF>). Thus, any source owner/operator seeking to obtain an 
alternate limit under Rule 4352 must submit an application under Rule 
2520 either for an initial PTO (if it is a new source) or for a 
``significant permit modification'' to its existing PTO. See Rule 2520, 
sections 5.3.1, 3.29, and 3.20.3. Both initial PTOs and significant 
modifications to existing PTOs are subject to a 30-day public comment 
period and a 45-day EPA review period, during which EPA may object to 
the permit if it does not meet applicable CAA requirements. See Rule 
2520, sections 11.3 and 11.7. Furthermore, if EPA does not object in 
writing to the District's preliminary decision during the 45-day review 
period, any person may petition EPA to review the permit. See Rule 
2520, section 11.3.7.
    These procedures ensure that the public will have an opportunity 
not only to comment on any alternate limit proposed by the District 
under section 5.4 of Rule 4352, but also to submit a title V petition 
to EPA where EPA does not object to a proposed permit containing such 
an alternate limit. Prior to approving any alternate limit requested 
under section 5.4 of Rule 4352, EPA intends to ensure that the District 
has satisfied these procedural requirements under Rule 2520 and that 
the PTO, including the alternate limit, satisfies CAA RACT 
requirements.
    Comment #5: SJVUAPCD agreed with EPA's proposal to approve the 
NO<INF>X</INF> limit in Rule 4352 for biomass-fired units and stated 
that all solid fuel-fired units in the area are equipped with SNCR or 
SCR controls, which are more effective than SNCR.
    Response #5: As explained above, based on the comments we received, 
we have determined that the District has not adequately demonstrated 
that the NO<INF>X</INF> limit in Rule 4352 for biomass-fired units 
satisfies RACT. See Responses <greek-i>2.c and 2.d.
    Comment #6: SJVUAPCD disagreed with EPA's proposal to disapprove 
the limit of 115 ppm at 3% O<INF>2</INF> in Rule 4352 for solid fuels 
other than municipal solid waste and biomass (i.e., coal, petroleum 
coke, and/or tire-derived fuels). The District provided several 
arguments in support of its objection to EPA's proposal, each of which 
we address in separate comment summaries below.
    Response #6: For the reasons discussed below, we have concluded 
that the District has not adequately demonstrated that the existing 
limit in Rule 4352 for units firing solid fuels other than municipal 
solid waste and biomass (i.e., coal, petroleum coke, and/or tire-
derived fuels) (115 ppm at 3% O<INF>2</INF>) satisfies RACT.
    Comment #6.a: The District stated that six facilities in the SJV 
area operate seven boilers that are permitted to fire coal, petroleum 
coke, and/or tire-derived fuels, and that all of these boilers have 
installed SNCR controls, which represent BACT for this source category.
    Response #6.a: See Responses <greek-i>2.c above and 8.d below.
    Comment #6.b: The District asserted that EPA's reliance on the 
emission levels for coal-fired units in the 1994 ACT (29-65 ppm at 3% 
O<INF>2</INF> or 0.04 to 0.09 lb/MMBtu) as part of its RACT evaluation 
was not appropriate because these emission levels apply only to 
fluidized bed combustor (FBC) units fired exclusively on coal. SJVUAPCD 
asserted that coal has less fuel-bound nitrogen compared to petroleum 
coke and, therefore, results in less NO<INF>X</INF> formation during 
combustion even with the same emission control technology.
    Response #6.b: Although we agree with the commenter that coal has 
less fuel-bound nitrogen than petroleum coke, this does not provide a 
basis for approving the current limit in Rule 4352 as RACT. Likewise, 
an argument that the emission levels for coal-fired units provided in 
the 1994 ACT (29-65 ppm at 3% O<INF>2</INF> or 0.04 to 0.09 lb/MMBtu) 
do not reflect reasonably available controls for boilers firing 
combinations of coal, petroleum coke, and tire-derived fuels, also does 
not demonstrate that the limit in Rule 4352 for these units (115 ppm at 
3% O<INF>2</INF>) satisfies RACT.
    In determining the level of control that is reasonably available to 
sources in the SJV area, the District must consider new information 
that has become available, including information about control levels 
currently achieved by similar sources. We note that the range provided 
in the 1994 ACT reflects control technologies from over a decade ago, 
and that RACT may change over time as new technology becomes available 
or the cost of existing technologies decreases. As discussed in the TSD 
for our proposed rule, it appears that boilers burning coal, petroleum 
coke, and/or tire-derived fuels in the SJV area are generally achieving 
NO<INF>X</INF> emission levels significantly below 115 ppm at 3% 
O<INF>2</INF>, and the 1994 ACT indicates that coal-fired boilers with 
SNCR and ammonia injection generally can achieve NO<INF>X</INF> 
emission levels below 115 ppm at 3% O<INF>2</INF>. See TSD at 6; 1994 
ACT at B-19. We also note that use of cleaner-burning fuels, work 
practice standards, or other operation and maintenance requirements may 
be considered as part of a RACT analysis. See Memorandum dated July 30, 
1993, from Michael H. Shapiro, Acting Assistant Administrator for Air 
and Radiation, to Air Division Directors, Regions I through X, ``Fuel 
Switching to Meet the Reasonably Available Control Technology (RACT) 
Requirements for Nitrogen Oxides (NO<INF>X</INF>)''; Memorandum dated 
November 7, 1996, from Sally Shaver, Director, Air Quality Strategies & 
Standards Division, to Air Division Directors, Regions I through X, 
``Approval Options for Generic RACT Rules Submitted to Meet the non-CTG 
VOC RACT Requirement and Certain NO<INF>X</INF> RACT Requirements.'' 
The District has provided no technological or economic information to 
support a conclusion that these lower emission levels are not 
reasonably achievable in the SJV area.
    Comment #6.c: SJVUAPCD asserted that it had reviewed EPA's RACT/
BACT/LAER Clearinghouse (RBLC) and had not identified any boilers in 
the nation that fire a blend of coal/coke/tire-derived fuel and that 
meet the emission range in the 1994 ACT. The District asserted that EPA 
should not have referenced this emission range as part of its RACT 
evaluation, and that the current limit in Rule 4352 should be 
considered RACT for boilers firing coal, petroleum coke, and tire-
derived fuels.
    Response #6.c: We disagree. As shown in Table 3 below, the RBLC 
identifies several boiler units firing combinations of coal, petroleum 
coke, and/or tire-derived fuels that achieve emission levels in the 
range provided in the 1994 ACT (29-65 ppm at 3% O<INF>2</INF> or 0.04-
0.09 lb/MMBtu). The District has provided no technological or economic 
information to support a conclusion that these lower emission levels 
are not reasonably achievable in the SJV area. See Response 
<greek-i>6.b.

[[Page 60628]]



 Table 3--RACT/BACT/LAER Clearinghouse NOX Emission Levels for Boilers Firing Petroleum Coke, Coal, and/or Tire-
                                                  Derived Fuels
----------------------------------------------------------------------------------------------------------------
                                                                                                     Limit (lb/
            RLBC ID                 Year               Fuel                 Control Technology         MMBtu)
----------------------------------------------------------------------------------------------------------------
LA-0202........................       2006  Pet Coke/Coal.............  SNCR......................        0.07
LA-0223........................       2008  Pet Coke..................  SNCR......................        0.07
MI-0258........................       2001  Coal/Tire/Wood............  SCR.......................        0.06
MS-0075........................       2003  Wood/Tires................  LNB, overfire air, good           0.0310
                                                                         combustion practices.
WI-0122........................       2001  Pet Coke..................  SNCR......................        0.07
----------------------------------------------------------------------------------------------------------------

    Comment #7: SJVUAPCD asserted that ``EPA has consistently 
interpreted the Clean Air Act provisions to require only those feasible 
measures necessary for expeditious attainment,'' and that ``if a 
feasible measure alone or in combination with other measures, cannot 
expedite attainment by at least one year then it is not considered to 
be reasonably available.'' The District asserted that no additional 
emission reduction would be achieved by reducing the limits in Rule 
4352 to the NO<INF>X</INF> limits in the sources' permits ``because the 
reduction from affected boilers has already occurred.'' Therefore, the 
District argued, ``such action is not necessary for the District's 
efforts for expeditious attainment of the ozone and PM2.5 standards.''
    Response #7: We disagree. Although EPA has long interpreted the 
RACT requirement in section 172(c)(1) of the Act, known as ``subpart 1 
RACT,'' as requiring only those control measures that will contribute 
to timely attainment and meet reasonable further progress (RFP) 
requirements (see 40 CFR 51.912(c) and 70 FR 71612 at 71653 (November 
29, 2005)), this is not true for the more specific RACT requirements of 
CAA section 182(b)(2), known as ``subpart 2 RACT.'' Section 182 of the 
Act requires, for any ozone nonattainment area classified as moderate 
or above, a SIP revision to require RACT for all major stationary 
sources of NO<INF>X</INF> that are located in the area, among other 
sources. CAA 182(b)(2)(C), 182(f); 40 CFR 51.912(a). These control 
measures are mandated whether or not they advance attainment or 
contribute to RFP. Because the SJV area is designated and classified as 
an extreme ozone nonattainment area (40 CFR 81.305),\8\ the SIP for the 
area must meet subpart 2 RACT requirements for all major NO<INF>X</INF> 
sources.
---------------------------------------------------------------------------

    \8\ Effective June 4, 2010, the SJV area was reclassified from 
``serious'' to ``extreme'' nonattainment for the 8-hour ozone NAAQS. 
See 75 FR 24409 (May 5, 2010). The SJV area also remains classified 
as ``extreme'' nonattainment for the 1-hour ozone NAAQS. 40 CFR 
81.305.
---------------------------------------------------------------------------

    In addition, it is not clear that no additional emission reduction 
would be achieved by reducing the limits in Rule 4352 for units burning 
coal, petroleum coke, and/or tire-derived fuels. As explained above in 
Responses <greek-i>6.b and <greek-i>6.c, both the 1994 ACT and EPA's 
RBLC provide NO<INF>X</INF> emission levels ranging from 29 to 65 ppm 
at 3% O<INF>2</INF> (0.04-0.09 lb/MMBtu) for units burning coal, 
petroleum coke, and/or tire-derived fuels. Information that the 
District submitted to us indicates that the permit limits for units 
burning coal, petroleum coke, and/or tire-derived fuels in the SJV area 
range between 28 and 146.7 ppm at 3% O<INF>2</INF>. See Attachment 
<greek-i>6 to TSD. Several of these permit limits exceed the 
NO<INF>X</INF> emission levels provided in the 1994 ACT and the RBLC 
for comparable units, one of these (146.7 ppm at 3% O<INF>2</INF>) by a 
substantial margin. Absent technical or economic information indicating 
that these units cannot reasonably achieve the emission levels 
identified in the 1994 ACT and the RBLC, we conclude that the District 
has not adequately demonstrated that the NO<INF>X</INF> limit in Rule 
4352 (115 ppm at 3% O<INF>2</INF>) represents RACT.
    Moreover, the permit limits that the District references are not 
approved into the SIP. We have no basis for evaluating permit limits 
not submitted for SIP approval to support a RACT determination under 
section 182(b)(2) of the CAA. See Response <greek-i>8.d below.
    Comment #8: SJVUAPCD disagreed with EPA's proposal to disapprove 
the limit of 200 ppm at 12% CO<INF>2</INF> in Rule 4352 for units 
firing municipal solid waste (MSW). The District provided several 
arguments in support of its objection to EPA's proposal, each of which 
we address in separate comment summaries below.
    Response #8: For the reasons discussed below, we have concluded 
that the District has not adequately demonstrated that the existing 
limit in Rule 4352 for units firing MSW (200 ppm at 12% CO<INF>2</INF>) 
satisfies RACT.
    Comment #8.a: SJVUAPCD stated that there is one facility in the 
District that operates two boilers firing MSW, and that both of these 
boilers have SNCR controls, which represent BACT. The District asserted 
that BACT is more stringent than RACT.
    Response #8.a: See Responses <greek-i>2.c above and 8.d below.
    Comment #8.b: SJVUAPCD asserted that the emission levels for MSW-
fired units in the 1994 ACT (52-232 ppm at 3% O<INF>2</INF>), which EPA 
had referenced in the TSD for the proposed rule, are based on ``short 
term test data'' which are not necessarily representative of typical 
day-to-day operations.
    Response #8.b: The comment implies that the emission levels for 
MSW-fired units in the 1994 ACT are not appropriate for consideration 
as RACT because they are based on emissions data that may not represent 
typical operations. This argument is unsupported. ACT documents 
describe available control techniques and their cost effectiveness, 
although they do not define presumptive RACT, and it is EPA's long-
standing position that States may consider information available in 
ACTs to identify available control options as part of a RACT analysis. 
See, e.g., 70 FR 71612 at 71654-55 (November 29, 2005) (preamble to 
final Phase II ozone implementation rule). The emission levels in the 
1994 ACT are based on numerous sources of information in addition to 
compliance records, including technical reports, EPA documents, and 
manufacturers' literature. See footnote 1 above and 1994 ACT at B-1. 
The District's comment does not support an argument that the emission 
levels in the 1994 ACT are not appropriate for consideration in a RACT 
analysis.
    The information provided in the 1994 ACT is, however, over a decade 
old and may not provide an accurate picture of current control options. 
It is possible that the controls identified in the 1994 ACT are now 
more cost-effective or that new control options have since become 
available. The District is required to consider not only the 
information in the 1994 ACT but also any new information that has 
become available in determining the control obligation and emissions 
limitation that is consistent with RACT. 70 FR 71612 at 71655.

[[Page 60629]]

    Comment #8.c: SJVUAPCD asserted that the MSW-fired boilers in the 
SJV area ``operate an SNCR system whereby the amount of ammonia 
injected into the flue gas is closely controlled to prevent excessive 
ammonia slip,'' and that any increase in ammonia injection above 
certain established levels for purposes of achieving additional 
NO<INF>X</INF> reductions would potentially increase PM<INF>10</INF> 
emissions above allowable permit limits.
    Response #8.c: SJVUAPCD has not provided information to 
substantiate this assertion. Recent source test data for the Covanta 
Stanislaus facility, which operates the only two permitted MSW-fired 
units in the SJV area, shows average total particulate emissions of 
7.58 x 10<SUP>-3</SUP> gr/DSCF for Unit 1 and 7.08 x 10<SUP>-3</SUP> 
gr/DSCF for Unit 2. See letter dated August 20, 2009, from Richard L. 
Wright, Air Quality Inspector, SJUAPCD, to Terry Coble, Covanta 
Stanislaus, Inc., enclosing ``Summary of Source Test Results,'' Tables 
2.1 and 2.3. These emission levels are well below the facility's permit 
limit for total particulate emissions from each unit, which is 0.0275 
gr/DSCF. Id. Additionally, the same source test data indicates average 
ammonia concentrations in the flue gas of 1.54 ppm for Unit 1 and 3.47 
ppm for Unit 2, both of which are well below the ammonia limit of 50 
ppm for each unit. Id. Thus, it appears the Covanta Stanislaus facility 
could substantially increase the amount of ammonia injection for 
purposes of achieving additional NO<INF>X</INF> reductions without 
violating permit requirements. The District's argument is unclear and, 
in any case, does not support a conclusion that the NO<INF>X</INF> 
limit in Rule 4352 for MSW-fired units satisfies RACT.
    Comment #8.d: SJVUAPCD asserted that although the rule limit for 
MSW-fired boilers is 200 ppm at 12% CO<INF>2</INF>, the existing permit 
limit of 165 ppm at 12% CO<INF>2</INF> ``is within the range of 
limit[s] recommended in the ACT for this boiler type, and therefore the 
units meet RACT.''
    Response #8.d: It appears the District intended to argue that EPA 
should evaluate the permit limits for MSW-fired boilers (165 ppm at 12% 
CO<INF>2</INF>), rather than the limit in Rule 4352 (200 ppm at 12% 
CO<INF>2</INF>), for RACT purposes. This would be appropriate if 
SJVUAPCD were to adopt and submit the relevant permit limits for 
approval into the SJVUAPCD portion of the California SIP. In this 
action, however, we are evaluating Rule 4352 for approval into the SIP, 
not the permit limits that the District references. We have no basis 
for evaluating permit limits not submitted for SIP approval to support 
a RACT determination under section 182(b)(2) of the CAA.
    As discussed in the TSD for our proposed action, the NO<INF>X</INF> 
emission limit in Rule 4352 for MSW-fired units is 200 ppm at 12% 
CO<INF>2</INF>, which equates to roughly 266 ppm at 3% O<INF>2.</INF> 
The 1994 ACT provides NO<INF>X</INF> emission levels for MSW-fired 
units ranging between 44 and 210 ppm at 3% O<INF>2,</INF>\9\ based on 
the use of SNCR with ammonia or urea injection. See 1994 ACT at 
Appendix B, pg. B-21. The District has provided no technological or 
economic information to support a conclusion that these lower emission 
levels are not reasonably achievable in the SJV area.
---------------------------------------------------------------------------

    \9\ The emission levels that the District identifies (52 to 232 
ppm at 3% O<INF>2</INF>) are presented in the TSD for our proposed 
action and are calculated based on the lb/MMBtu values shown in 
Table 2-6 of the ACT. We note that the values presented in Appendix 
B of the Act (44 to 210 ppm at 3% O<INF>2</INF>) are more reliable. 
See fn. 1 above.
---------------------------------------------------------------------------

    Comment #8.e: SJVUAPCD asserted that EPA's RBLC does not indicate 
any BACT emission level for boilers firing MSW fuels. The District 
stated that the RBLC does identify a source called Mahoning Renewable 
Energy, which operates two boilers that burn refuse-derived fuel (RDF) 
and are equipped with Regenerative Selective Catalytic Reduction 
(RSCR). Citing EPA's 1994 ACT, the District asserted that ``unlike MSW 
and industrial solid waste fuels, which are burned in the same form as 
they are received at the boiler site, RDF is fuel processed from 
general solid waste'' and is generated by sorting and processing such 
solid waste. SJVUAPCD concluded by asserting that because the Mahoning 
facility's boilers ``use RSCR and are fired on RDF, RSCR cannot be 
considered RACT for boilers fired on MSW fuel.''
    Response #8.e: The District's assertion that the RBLC does not 
contain BACT emission levels for MSW fuel-fired boilers is not correct 
(although we note that these entries are difficult to locate as they 
are not categorized under fuel combustion (process type 10), as are 
boilers burning other fuels). The RBLC includes MSW fuel-fired boiler 
units under the process type 21.400, Waste Combustion Processes. For 
example, the Lee County Waste-To-Energy Facility in Florida (RBLC ID 
FL-0258) operates two mass-burn municipal waste combustion units that 
are equipped with SNCR and subject to an emission limit of 150 ppm at 
7% O<INF>2</INF> (approximately 143 ppm at 12% CO<INF>2</INF>). Another 
facility identified in the RBLC is the Resource Recovery Facility in 
Virginia (RBLC ID VA-0277), which operates two MSW-fired units subject 
to an emission limit of 160 ppm at 7% O<INF>2</INF> (approximately 152 
ppm at 12% CO<INF>2</INF>).\10\
---------------------------------------------------------------------------

    \10\ We have converted each of the emission limits we identified 
in the RBLC into their approximate equivalent at 12% CO<INF>2</INF> 
to allow for more direct comparison to the emission limit in 
SJVUAPCD Rule 4352, which is also expressed in ppm at 12% 
CO<INF>2</INF>. Briefly, using equations available in EPA Method 3B 
along with F Factors obtained from Method 19, we calculated the 
O<INF>2</INF> that should be obtained during combustion if there is 
12% CO<INF>2</INF> in the flue gas and assumed this O<INF>2</INF> in 
correcting to 7% O<INF>2</INF>.
---------------------------------------------------------------------------

    Additionally, we have examined source test data for other MSW-fired 
units to determine what emission limits have been achieved in practice. 
The Montenay Pacific Power Corporation has a facility in Long Beach, 
California with three MSW fuel-fired units, each of which appears to 
have NO<INF>X</INF> emission levels between 64 and 104 ppm at 7% 
O<INF>2</INF> (approximately 61-99 ppm at 12% CO<INF>2</INF>). Eco/
Pittsfield, LLC in Pittsfield, Massachusetts operates three MSW 
combustors that appear to have average NO<INF>X</INF> emissions of 70.4 
ppm at 7% O<INF>2</INF> (approximately 67 ppm at 12% CO<INF>2</INF>). 
These emission levels are significantly lower than 200 ppm at 12% 
CO<INF>2.</INF>
    It appears the District believes that important distinctions 
between the use of RDF and MSW as fuel justify the NO<INF>X</INF> 
emission limit in Rule 4352 as RACT, but this argument is not 
supported. The District has provided no technical or economic 
information to support an argument that the control levels currently 
achieved by MSW fuel-fired units elsewhere are not reasonably available 
in the SJV area.
    Comment #8.f: SJVUAPCD stated that the permits for boilers firing 
MSW have stringent limits for numerous hazardous air pollutants, 
because the facility is subject to the Federal NESHAP for municipal 
solid waste combustors. The District asserted that ``[t]here is no more 
emission reduction that would result with the current SNCR system, even 
if the rule limit is lowered to the permitted level since the emission 
has already been reduced because of more stringent operating permit 
emission limits.''
    Response #8.f: First, to the extent the District intended to argue 
that NESHAP requirements provide a basis for approving the 
NO<INF>X</INF> limits in 4352 as RACT, this argument is unsupported. 
Federal NESHAPs regulate hazardous air pollutants under section 112 of 
the CAA and do not necessarily establish RACT for NO<INF>X</INF> 
control under section 182 of the Act. The District has provided no 
support for an assertion that NESHAP controls satisfy RACT requirements 
in this case.
    Second, the District appears to assume that lowering the 
NO<INF>X</INF> emission

[[Page 60630]]

limits for MSW-fired units in Rule 4352 to permit levels will satisfy 
RACT. This is not correct. Although permit limits can in some cases 
indicate a level of emissions control that is reasonably available, 
source-specific permit limits do not in themselves establish RACT. See 
Response <greek-i>2.c above.
    Finally, the District appears to assert that the permits for MSW-
fired units in the SJV area contain emission limits more stringent than 
the limit in Rule 4352. This also does not appear to be correct. 
According to the list of permitted solid fuel-fired boilers that the 
District provided to us and that we referenced as Attachment <greek-i>6 
to the TSD, the two MSW-fired boilers in the SJV area (at the Covanta 
Stanislaus facility) are subject to District-issued permits, both of 
which establish a NO<INF>X</INF> limit of 200 ppm at 12% 
CO<INF>2</INF>. This permit limit is identical to the NO<INF>X</INF> 
emission limit in Rule 4352 for MSW-fired units. The source test data 
that we obtained for the Covanta Stanislaus facility indicate that each 
of these two MSW-fired units is subject to both a limit of 200 ppm at 
12% CO<INF>2</INF> and a limit of 175 ppm at 12% CO<INF>2</INF>, but it 
is not clear how and when these different permit limits apply. See 
letter dated August 20, 2009, from Richard L. Wright, Air Quality 
Inspector, SJUAPCD, to Terry Coble, Covanta Stanislaus, Inc., enclosing 
``Summary of Source Test Results,'' Tables 2.1 and 2.3. In any case, 
the District has provided no support for its assertion that reducing 
the limit in Rule 4352 would result in no emissions reductions because 
of ``more stringent operating permit emission limits.'' See also 
Response 8.d.
    Comment #9: SJVUAPCD stated that the SJV area needs emission 
reductions as quickly as feasible and is ``hesitant to divert resources 
to conduct work that is not demonstrated to have significant potential 
for additional reductions or enforceability.'' SJVUAPCD stated that its 
focus on early and voluntary reductions from Fast Track measures, 
incentive programs, and the Healthy Air Living program demonstrates the 
District's earnest desire to expedite air quality improvement and that 
it is conducting a study to determine the feasibility of retrofitting 
solid fuel-fired boilers with SCR, in addition to SNCR, to achieve 
significant NO<INF>X</INF> reductions. The District urged that its 
efforts not be diverted without clear benefits.
    Response #9: As discussed above in Response <greek-i>7, section 182 
of the CAA requires, for any ozone nonattainment area classified as 
moderate or above, a SIP revision to require RACT for all major 
stationary sources of NO<INF>X</INF> that are located in the area, 
among other sources. CAA 182(b)(2)(C), 182(f); 40 CFR 51.912(a). 
Because the SJV area is designated and classified as an extreme ozone 
nonattainment area (40 CFR 81.305), the SIP for the area must meet 
subpart 2 RACT requirements for all major NO<INF>X</INF> sources.
    We recognize the District's substantial efforts to expedite air 
quality improvement in the Valley, and we also recognize that it is not 
clear that revising the NO<INF>X</INF> emission limits in this rule 
will result in significant emissions reductions in the SJV area. 
Nonetheless, we are obligated to review Rule 4352 for compliance with 
the CAA, which requires, among other things, that the SJVUAPCD portion 
of the California SIP provide for the implementation of RACT at a 
minimum. We note that the District's reevaluation of the NO<INF>X</INF> 
emission limits in Rule 4352 may reveal additional emission reductions 
not yet considered and encourage the District to begin this process as 
expeditiously as practicable, consistent with CAA requirements.

III. EPA Action

    Under CAA sections 110(k)(3) and 301(a) and for the reasons set 
forth above and in our December 9, 2009 proposed rule, we are 
finalizing a limited approval and limited disapproval of amended 
District Rule 4352, as submitted on October 5, 2006. We are finalizing 
a limited approval of the submitted rule because we continue to believe 
that the rule improves the SIP and is largely consistent with relevant 
CAA requirements. This action incorporates amended Rule 4352, including 
those provisions identified as deficient, into the District portion of 
the Federally-enforceable California SIP. The amended rule approved 
herein supersedes the version of Rule 4352 that we approved in February 
1999 into the applicable SIP.
    We are finalizing a limited disapproval of the submitted rule 
because the District has not adequately demonstrated that the 
NO<INF>X</INF> limits in the rule for MSW-fired units, biomass-fired 
units, and units burning other solid fuels (e.g., coal, petroleum coke, 
and tire-derived fuels) satisfy RACT as required by the CAA. Our 
reasons for disapproving the NO<INF>X</INF> limits for MSW-fired units 
and units burning other solid fuels (e.g., coal, petroleum coke, and 
tire-derived fuels) are explained in the proposed rule and further in 
our responses to comments above. With respect to the NO<INF>X</INF> 
emission limit for biomass-fired units, we are not finalizing our 
proposal to approve this limit and are instead disapproving it because 
the District has not adequately demonstrated that this emission limit 
satisfies RACT, as explained in our responses to comments above. The 
final limited disapproval triggers a sanctions clock and EPA's 
obligation to promulgate a Federal implementation plan (FIP). Sanctions 
will be imposed unless EPA approves subsequent SIP revisions that 
correct the rule deficiencies within 18 months of the effective date of 
this action. These sanctions would be imposed under section 179 of the 
Act according to 40 CFR 52.31. In addition, EPA must promulgate a FIP 
under section 110(c) unless we approve subsequent SIP revisions that 
correct the rule deficiencies within 24 months of the effective date of 
this action. 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. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

C. 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 rule will not have a significant impact on a substantial 
number of small entities because SIP approvals and limited approvals/
limited disapprovals 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 
this limited approval/limited disapproval action 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.

[[Page 60631]]

    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).

D. Unfunded Mandates Reform Act

    Under sections 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 limited approval/limited disapproval 
action promulgated does not include a Federal mandate that may result 
in estimated 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.

E. Executive Order 13132, Federalism

    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, 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.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. 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.

J. Congressional Review Act

    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on November 1, 2010.

K. 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 November 30, 2010. 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

[[Page 60632]]

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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: August 26, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(347)(i)(A)(2) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (347) * * *
    (i) * * *
    (A) * * *
    (2) Rule 4352, ``Solid Fuel Fired Boilers, Steam Generators and 
Process Heaters,'' amended on May 18, 2006.
* * * * *

[FR Doc. 2010-24686 Filed 9-30-10; 8:45 am]
BILLING CODE 6560-50-P


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