As the commenter correctly notes, Appendix C of the NJDEP 2009 PM2.5SIP states that “the NJDEP anticipates that the facilities will decrease their emissions due to optimizing their existing NOXcontrol systems (i.e.,either injecting more ammonia or adding more nozzles).”See NJDEP 2009 PM
SIP,App. C., at 5. This statement alone, however, does not establish that the NOXemission limit in N.J.A.C. 7:27-19.12 (150 ppm at 3% O2) represents RACT for existing MSW-fueled boilers. As discussed above in Response 2.a, four of the five MSW incinerators subject to the NJDEP rule have equipment configurations that appear to differ significantly from the Covanta Stanislaus facility, and NJDEP has approved alternate, higher NOXlimits for three of the five subject sources based on the agency's assessment of source-specific technological and/or economic factors. Other than referencing statements of general intent in a New Jersey SIP submission, the commenter provides no technological or economic information to support its assertion that existing MSW-fired boilers, either generally or in SJV specifically, are capable of meeting a 24-hour NOXemission limit of 150 ppm at 3% O2(142 ppm of at 12% CO2) by the application of control technology that is reasonably available considering technological and economic feasibility.
Comment #2.c:Earthjustice asserted that the New Jersey rule, along with data presented in EPA's TSD for the proposed rule, “highlights the need for further analysis of potential NOXcontrols by the District.” Earthjustice stated that information available in EPA's 1994 ACT, which shows NOXemissions from MSW-fired boilers with SNCR controls ranging from 35 to 167 ppmv at 12% CO2, calls into question the 165 to 210 ppmv at 12% CO2range provided in the District's 2011 Staff Report and places the District's NOXemissions limit of 165 ppmv at 12% CO2at the highest end of the range. Earthjustice also asserted that “[g]iven that the Valley is in nonattainment ofthe PM2.5NAAQS and is in extreme nonattainment of the 1-hour and 8-hour ozone NAAQS, EPA must require the District to conduct further analysis and ensure that MSW-fired boilers meet the lowest emission limit that can be achieved through the application of RACT.”
Response #2.c:First, with respect to the commenter's assertions about the NJDEP rule (N.J.A.C. 7:27-19.12), we addressed these comments above in Response #2.a. Second, with respect to the commenter's assertion about data presented in EPA's TSD, although we agree with the commenter's observation that the NOXemission limit in Rule 4352 (165 ppmv at 12% CO2) is at the highest end of the range of NOXlevels identified in EPA's 1994 ACT for MSW-fired boilers operating SNCR controls with ammonia or urea injection, we disagree with the assertion that this necessarily compels further evaluation of the NOXlimit in Rule 4352.
Municipal solid waste varies widely in composition—often including durable goods, non-durable goods, demolition and construction wastes, containers and packaging, food wastes and yard trimmings, and/or miscellaneous inorganic wastes—and the exact makeup of MSW at a particular facility may vary both seasonally and geographically.See1994 ACT at Section 3.4.3. Variability in MSW can affect emissions both due to differences in the availability of fuel-bound nitrogen as well as differences in the heat content of the fuel, which can affect its combustion characteristics. Given the broad technical diversity of existing MSW-fired boilers and their varying fuel compositions, the NOXemission level that one MSW-fired unit achieves by the application of reasonably available controls may not necessarily be achievable for others using similar controls. Even where boiler type, control technology, and fuel type are the same, 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 at Appendix B (page B-21), showing achievable NOXemission levels ranging from 44 to 210 ppm at 3% O2for MSW boilers equipped with SNCR.
ACT documents describe available control techniques and their cost effectiveness but do not define presumptive RACT levels as EPA's Control Techniques Guidelines (CTGs) do. The wide range of emission levels provided in the 1994 ACT for MSW-fired boilers equipped with SNCR and using ammonia or urea injection as a control technique (35 to 167 ppmv at 12% CO2) reflects the significant variation in emission levels that may result from site-specific technological considerations and fuel compositions at different MSW-fired units. Notably, the NOXemission ranges provided in Appendix B of the 1994 ACT do not identify applicable averaging periods and therefore may not be directly comparable to the 24-hour NOXemission limit in Rule 4352.See1994 ACT at Appendix B.
EPA has evaluated the control techniques and applicable permit conditions for the two MSW incinerators in New Jersey that are currently subject to the 24-hour NOXemission limit of 150 ppm (at 3% O2) in N.J.A.C. 7:27-19.12 (Gloucester and Camden) and concluded that technical distinctions between these facilities and the Covanta Stanislaus facility in SJV raise significant questions about the technological and economic feasibility of those same emission control methods at existing MSW-fired boilers in the SJV.SeeResponse #2.a. We do not currently have information sufficient to support a conclusion that existing MSW-fired boilers using ammonia-based SNCR systems, either generally or specifically in the SJV, are capable of meeting a 24-hour NOXemission limit of 150 ppm at 3% O2(142 ppm of at 12% CO2) by the application of control technology that is reasonably available considering technological and economic feasibility.
Finally, with respect to the commenter's statement about the SJV area's air quality designations for the PM2.5and ozone National Ambient Air Quality Standards (NAAQS), we note that attainment status designations are not relevant to our evaluation of Rule 4352 for compliance with the technology-based RACT control requirement in CAA section 182(b)(2). The RACT requirement in CAA section 182 is a control mandate that applies independent of the emission reductions needed for attainment of the NAAQS.See, e.g.,EPA's Proposed Rule to Implement the 8-Hour Ozone [NAAQS], 68 FR 32802, 32837 (June 2, 2003) (explaining that “[u]nder subpart 2, RACT requirements for ozone nonattainment areas apply independent of the emissions reductions needed to attain the standard”). We note, however, that the general requirement in CAA section 172(c)(1) to adopt all “reasonably available control measures” (RACM) continues to apply in the SJV area for purposes of attaining the ozone and PM2.5NAAQS (see, e.g.,40 CFR 51.912(d) and 51.1010). Given the severity of the ozone and PM2.5pollution problems in the SJV and the NOXand PM2.5emission reduction commitments contained in the SIP-approved plans for attainment of the 1997 PM2.5and 1997 8-hour ozone standards in the SJV,8
we encourage the District to further evaluate potential NOXand PM control options at its earliest opportunity to determine whether additional controls for existing MSW-fired boilers may be reasonably available for implementation in the Valley.
See, e.g.,SIP-approved NOXemission reduction commitments in 40 CFR 52.220(c)(356)(ii)(B)(2) and 52.220(c)(356)(ii)(B)(4), and 52.220(c)(397)(ii)(B)(2).
Comment #3:Earthjustice asserted that EPA should urge the District to reevaluate the startup and shutdown provisions in Rule 4352 as the rule allows units to emit excess emissions for far longer than necessary. In support of this assertion, the commenter referred to rules adopted by the Placer County Air Pollution Control District (PCAPCD), Yolo Solano Air Quality Management District (YSAQMD) and Sacramento Metropolitan Air Quality Management District (SMAQMD), each of which contain shorter time periods for startup and shutdown operations. Citing a 1999 EPA policy document providing that startup and shutdown periods should be limited “to the maximum degree practicable,” the commenter asserted that the District had neglected to evaluate the possibility of requiring shorter startup and shutdown times under Rule 4352 for solid fuel-fired boilers.
Response #3:We disagree with the commenter's assertion that the startup and shutdown provisions in Rule 4352 are deficient. EPA policy for SIPs regarding excess emissions during malfunctions, startup, shutdown, and maintenance provides that for some source categories, “given the types of control technologies available, there may exist short periods of emissions during startup and shutdowns when, despite best efforts regarding planning, design, and operating procedures, the otherwise applicable emission limitation cannot be met.” Thus, with limited exceptions, it may be appropriate in consultation with EPA to create “narrowly-tailored SIP revisions” that take these technological limitations into account and state that the otherwise applicable emissions limitations do not apply during these periods.SeeMemorandum dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and RobertPerciasepe, Assistant Administrator for Air and Radiation, to Regional Administrators, Regions I-X, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (1999 SSM Policy) at Attachment, pp. 4-5. According to the 1999 SSM Policy, SIP provisions addressing these circumstances should, among other things, be limited to specific, narrowly-defined source categories.Id.Additionally, use of the control technology for the source category should be technically infeasible during startup or shutdown periods; the frequency and duration of operation in startup or shutdown mode should be minimized to the maximum extent practicable; and all possible steps should be taken to minimize the impact of emissions during startup and shutdown on ambient air quality.Id.
Rule 4352 generally applies to any boiler, steam generator or process heater fired on “solid fuel” that is operated at a stationary source with a potential to emit at least 10 tons per year of NOXor VOC.SeeRule 4352 at sections 2.0, 3.18, and 4.0. Section 5.3 of the rule states that the applicable emission limits established for this defined source category “shall not apply during start-up or shutdown provided an operator complies with the requirements specified below.” The rule then limits the duration of each start-up to 96 hours, except that if curing of the refractory is required after a modification to the unit is made, the duration of start-up is limited to 192 hours, with exceptions only as approved by the District, CARB, and EPA.SeeRule 4352 at section 5.3.2. The rule also limits the duration of each shutdown to 12 hours, with exceptions only as approved by the District, CARB, and EPA.Id.at section 5.3.1. Significantly, Rule 4352 requires, in all cases, that “the emission control system shall be in operation and emissions shall be minimized insofar as technologically feasible during start-up or shutdown.”Id.at section 5.3.3. These provisions for start-up and shutdown apply to all solid fuel-fired boilers subject to Rule 4352, including biomass-fired and MSW-fired boilers.
Earthjustice refers to rules adopted by the PCAPCD, YSAQMD and SMAQMD to support its assertion that the District should consider establishing shorter exemption periods for startup and shutdowns, but these other California rules apply to source categories that differ from the source category subject to Rule 4352. Both YSAQMD Rule 2.43 and PCAPCD Rule 233, which apply to boilers fueled entirely or primarily with biomass, limit normal startups and all shutdowns to 24 hours and curing startups to 96 hours.SeeYSAQMD Rule 2.43 at sections 102 and 302, and PCAPCD Rule 233 at sections 101, 206, 214 and 215. Thus, although both the YSAQMD rule and PCAPCD rule limit the allowed duration of startup and shutdown to periods that are shorter than the limits in Rule 4352, both rules apply only to a subset of the boilers subject to Rule 4352. Biomass-fired boilers may not require start-up or shutdown periods as long in duration as those needed by the range of solid fuel-fired boilers subject to SJVUAPCD's Rule 4352, which combust more complex and heterogeneous fuel mixes, including biomass, MSW, coal, and other solid fuels. Notably, neither the YSAQMD rule nor the PCAPCD rule explicitly requires continued operation of emission control systems to the extent feasible during start-up and shutdown periods, as does Rule 4352.9
9The YSAQMD rule states that “the frequency and duration of startup and shutdown periods and their associated emissions shall be minimized as much as technologically feasible.” YSAQMD Rule 2.43 at section 302.3. The PCAPCD rule includes alternative pound per hour emission limits for NOXand CO during startup and shutdown periods.SeePCAPCD Rule 233 at section 302.2.
SMAQMD Rule 411, which applies to units fueled with gaseous and non-gaseous fuels, limits startup to a maximum of two hours after a period in which the gas flow is shut off for a continuous period of 30 minutes or longer and limits shutdown to two hours.SeeSMAQMD Rule 411 at sections 102, 220-222. We are not aware, however, of any solid fuel fired boilers operating in the Sacramento metro area subject to Rule 411. Thus, SMAQMD Rule 411 does not appear to establish that shorter limits on startup and shutdown periods are technologically feasible for solid fuel-fired boilers.
In sum, the start-up and shutdown provisions in SJVUAPCD's Rule 4352 are narrowly-tailored to address the technological limitations of emissions controls at solid fuel-fired boilers and require, unlike the other California district rules cited by the commenter, that source owners/operators continue to operate emission control systems and to minimize emissions to the extent technologically feasible, even during start-up or shutdown periods. We conclude that these provisions in Rule 4352 are consistent with EPA's 1999 SSM policy and appropriate for SIP approval for this particular source category. We agree with the commenter, however, that the District should reevaluate these provisions at its earliest opportunity to determine whether shorter limits on the duration of startup and shutdown periods may be feasible for certain types of solid fuel-fired boilers covered by the rule, and to consider establishing limits on the frequency of such events, to ensure that emissions during start-up and shutdown events are minimized to the maximum extent practicable. We also encourage the District to carefully review the CEMS data required by section 5.4 of Rule 4352 (monitoring provisions), in particular NOXemissions data during start-up and shutdown periods, to ensure that owners/operators of solid fuel-fired boilers are in fact operating emission control systems and minimizing emissions insofar as technologically feasible during start-up or shutdown as required by Rule 4352, section 5.3.3.
III. EPA Action
For the reasons provided in our proposed rule and above, and pursuant to section 110(k)(3) of the Act, EPA is fully approving Rule 4352 into the San Joaquin Valley portion of the California SIP. This final approval of Rule 4352 satisfies California's obligation to implement RACT under CAA section 182(b)(2) for solid fuel-fired boilers in the SJV for the 1-hour ozone and 1997 8-hour ozone NAAQS and thereby terminates all CAA sanctions clocks and Federal Implementation Plan (FIP) clocks associated with this source category.See75 FR 60623 (October 1, 2010) (final limited approval and disapproval of Rule 4352); 77 FR 1417 (January 10, 2012) (final partial approval and disapproval of SJV RACT SIP); and 77 FR 24857 (April 26, 2012) (interim final determination to stay and defer sanctions).
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801et 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 action 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
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 January 7, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
Dated: September 13, 2012.
Regional Administrator, Region IX.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 52 continues to read as follows:
42 U.S.C. 7401et seq.
2. Section 52.220 is amended by adding paragraphs (c)(411) (i)(B)(4) to read as follows:
Identification of plan.
(c) * * *
(411) * * *
(i) * * *
(B) * * *
(4) Rule 4352, “Solid Fuel Fired Boilers, Steam Generators and Process Heaters,” amended on December 15, 2011.