[Federal Register Volume 62, Number 113 (Thursday, June 12, 1997)]
[Rules and Regulations]
[Pages 32038-32040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15413]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 76
[FRL-5840-1]
RIN 2060-AF48
Acid Rain Program; Nitrogen Oxides Emissions Reduction Program;
Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction.
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SUMMARY: On December 19, 1996 (61 FR 67112), the Environmental
Protection Agency (EPA) promulgated emission limitations for the second
phase of the Nitrogen Oxides Reductions Program under Title IV of the
Clean Air Act. These emission limitations will reduce the serious
adverse effects of NOX emissions on human health,
visibility, ecosystems, and materials. This action corrects an
inadvertent, drafting error in the December 19, 1996 document.
EFFECTIVE DATE: June 12, 1997.
FOR FURTHER INFORMATION CONTACT: Peter Tsirogotis, Source Assessment
Branch, Acid Rain Division (6204J), U.S. Environmental Protection
Agency, 401 M Street S.W., Washington, D.C. 20460 (for technical
matters) (202-233-9620); or Dwight C. Alpern (same address) (for legal
matters) (202-233-9151).
SUPPLEMENTARY INFORMATION: On December 19, 1996 (61 FR 67112), EPA
promulgated emission limitations for the second phase of the Nitrogen
Oxides Reduction Program under Title IV of the Clean Air Act.
Subsequent to the publication of the December 19, 1996 rule, EPA
identified an inadvertent, drafting error in the December 19, 1996
document. Today's action corrects this error.
Section 76.6 of the December 19, 1996 rule sets emission limits for
Group 2 coal-fired boilers, i.e., for cell burners, cyclones, wet
bottoms and vertically fired boilers. The language in section 76.6(a)
stating that the limits for these boiler categories applies to owners
or operators of ``Group 2, Phase II'' coal-fired boilers, is an
inadvertent, drafting error.
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\1\ This is consistent with other provisions of part 76 that
treat both Phase I and Phase II units as subject to emission limits
for Group 2 boilers. For example, section 76.9(b)(2) sets a January
1, 1998, deadline for submission of compliance plans for NOx
emissions for ``a Phase I or Phase II unit with a Group 2 boiler or
a Phase II unit with a Group 1 boiler.'' 40 CFR 76.9(b)(2). See also
40 CFR 76.10(a)(1) and (2)(D) (stating requirements for applying for
an alternative emission limitation for ``Group 2 boilers'', without
distinguishing between Phase I and Phase II boilers).
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In issuing the December 19, 1996 NOX rule, EPA clearly
intended to set revised limits for Group 1 boilers (i.e., dry bottom
wall fired and tangentially fired boilers) not subject to the initial
Group 1 limits and to set new emission limits for Group 2 boilers,
regardless of whether Group 2 boilers are Phase I or Phase II boilers.
This intent was explicit in the preamble of the December 19, 1996 rule,
where EPA stated that it was setting emission limits for Group 2
boilers and made no distinction between Phase I and Phase II boilers.
Nowhere in the preamble did EPA state that the emission limits apply
only to Group 2, Phase II boilers or that the limits do not apply to
Group 2, Phase I boilers.1 For example, in summarizing the
rule, EPA stated that it was
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``promulgating new emission limitations for nitrogen oxides * * *
emissions for wall-fired and tangentially fired boilers (Group 1
boilers) and for certain other boilers (Group 2 boilers).'' 61 FR
67113. See also 61 FR 67114 (explaining how the emission limit was
selected for ``the particular category of Group 2 boiler'' and
estimating the NOX reductions that result from applying the
limit to each Group 2 boiler category, including both Phase I and Phase
II boilers), 67120 (explaining that EPA is exercising its discretion to
``revise the Phase II, Group 1 emission limitations'' and is adopting
``Group 2 emission limitations''), 67148-67149 (discussing costs of
selective catalytic reduction (SCR) applied to Merrimack unit 2, a
Group 2, Phase I boiler), 67152-67153 (stating that EPA is setting
specified limits for ``cell burners,'' ``cyclone boilers greater than
155 MW,'' ``wet bottom boilers greater than 65 MW,'' and ``vertically
fired boilers''). Moreover, in discussing the economic impact of the
final rule, EPA presented several regulatory options and stated that
the final rule adopted the option (identified as ``Option 4'') under
which limits are set ``for all Group 2 boilers except cyclones with
capacity of 155 MWe or less, wet bottoms with capacity of 65 MWe or
less, stokers, and [fluidized bed combustion] boilers.'' 61 FR 67160;
see also Docket Item V-B, ``Regulatory Impact Analysis of
NOX Regulations'' at 6-1 (October 24, 1996).
The Agency's analyses supporting the final rule were also based on
the application of the Group 2 limits to both Phase I and Phase II
boilers. For example, the study estimating the boiler-specific cost
effectiveness of NOX control technologies set forth cost
effectiveness estimates for Group 2 boilers that included both Phase I
and Phase II boilers. Docket Item IV-A-14 (November 1996). Similarly,
the Regulatory Impact Analysis for the final rule analyzed the impact
of the application of the Group 1 and Group 2 limits to a total of
1,044 boilers. These boilers were listed in the report and included
both Group 2, Phase I boilers and Group 2, Phase II boilers. Docket
Item V-B-1, ``Regulatory Impact Analysis of NOX
Regulations'' (October 24, 1996) at 2-1 and 2-2 and Appendix A. See
also Docket Item IV-A-15 (November 26, 1996) (load vs. time plots of
selected cyclones and wet bottoms (including Phase I and Phase II
boilers) subject to the Group 2 limits); and Docket Item V-B-1,
``Unfunded Mandates Reform Act Analysis for the Nitrogen Oxides
Emission Reduction Program Under the Clean Air Act Amendments Title
IV'' (October 24, 1996) at 11 (stating the number of cyclones and wet
bottoms (including Phase I and Phase II boilers) subject to the Group 2
limits).
EPA notes that the erroneous language in Sec. 76.6(a) of the final
rule was also used in the January 19, 1996 proposed rule. (See 61 FR
1442 and 61 FR 1480 (1996)). However, like the final rule preamble, the
preamble of the proposed rule described the establishment of limits for
Group 2 boilers, without distinguishing between Phase I and Phase II
boilers. See, e.g., 61 FR 1467, 61 FR 1471, 61 FR 1474, and 61 FR 1476
(setting the limit for each boiler category and estimating
NOX reductions that result from applying the limit to Phase
I and Phase II boilers in each category). In addition, consistent with
the preamble of the proposed rule, the commenters interpreted the
proposed Group 2 limits as applying without distinction between Phase I
and Phase II boilers. See, e.g., Comments of the Utility Air Regulatory
Group and the National Mining Association, Docket Item IV-D-065 (March
19, 1996) at i and 3 (describing proposal as setting limits for ``Group
2 boilers''), 98 (stating proposed limit for cell burners), 101
(objecting to application of cell burner limit to five 3-cell burner
boilers including J.H. Campbell Unit 2, a Group 2, Phase 1 boiler), 106
(stating that proposal sets limit for 38 wet bottoms, including both
Phase I (such as Kyger Creek unit 5) and Phase II boilers), 107-8
(citing Sargent and Lundy report and claiming that there is no
technology on which to base Group 2 limits for certain Phase I wet
bottoms (Big Bend units 1, 2, and 3)), 110 (stating proposed limit for
cyclone boilers), and 128-29 (stating that proposal applies to about
175 Group 2 boilers, which includes Phase I and Phase II boilers). See
also Docket Item II-A-2 at A-5 (August 1995) (listing 39 wet bottoms
covered by limit in proposed rule, including Phase I boilers (Clifty
Creek units 1, 2, 3, 4, 5, and 6, Kyger Creek units 1, 2, 3, 4, and 5,
and Big Bend units 1, 2, and 3)); and Docket Item IV-D-032 (March 18,
1996) (Sargent and Lundy report at ES-2 through ES-5 and ES-7
(discussing lack of technology for Big Bend units 1, 2, and 3)).
Consistent with these comments on the proposal, the petitioners'
briefs filed in Appalachian Power v. U.S. EPA, No. 96-1497 (D.C. Cir.
1997), challenging the December 19, 1996 rule stated that limits are
set for Group 2 boilers and did not distinguish between Phase I and
Phase II boilers. Brief of Petitioners Appalachian Power Company, et
al. (April 18, 1997) at 9 and 21 (stating that proposed and final rules
apply to over 1,000 boilers, including Group 2 boilers that are Phase I
and Phase II boilers), 19 n.60 and 34 n.105 (objecting to the cell
burner emission limit because it applies to ``five 3-cell burner
boilers,'' one of which is a Phase I boiler (J.H. Campbell unit 2)),
and 47 n.157 and 52 n.176 (objecting to EPA's estimates of the costs of
applying SCR to specific Group 2, Phase I boilers (Paradise unit 3,
Allen units 1-3, Kyger Creek units, and Clifty Creek units)). See also
Brief of Petitioner Arizona Public Service Company (May 2, 1997) at 3
(stating that final rule set limits for ``Group 1, Phase II boilers,
and * * * all Group 2 boilers'').
EPA concludes that the language in the current Sec. 76.6(a) is
contrary to the clear intent of the Agency--as expressed in the final
rule preamble and the record--to set emission limits for Group 2
boilers, including both Phase I and Phase II boilers. EPA is therefore
correcting today this inadvertent, drafting error in the December 19,
1996 document.
For the reasons discussed above, this action is not a ``significant
regulatory
[[Page 32040]]
action'' and is therefore not subject to review by the Office of
Management and Budget under Executive Order 12866 (58 FR 51735 (October
4, 1993)). For the same reasons, this action does not impose annual
costs of $100 million or more, will not significantly or uniquely
affect small governments, and is not a significant federal
intergovernmental mandate. With regard to this action, the Agency thus
has no obligations under sections 202, 203, 204, and 205 of the
Unfunded Mandates Reform Act of 1995 (P.L. 104-4). Moreover, since this
action is not subject to notice-and-comment requirements under the
Administrative Procedure Act or any other statute, the action is not
subject to the provisions of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.).
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this document and any other required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller General
of the General Accounting Office prior to publication of this document
in today's Federal Register. This action is not a ``major rule'' as
defined 5 U.S.C. 804(2).
Dated: June 6, 1997.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
Accordingly, for the reason set out above, the publication on
December 19, 1996 of the final rule (FR Doc. 96-31839) at 61 FR 67112
is corrected as follows:
Sec. 76.6 [Corrected]
1. On page 67162, in the third column, in Sec. 76.6, paragraph (a)
introductory text is corrected in lines 6 and 7 by removing the words
``, Phase II''.
[FR Doc. 97-15413 Filed 6-11-97; 8:45 am]
BILLING CODE 6560-50-P