Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Bay Area Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0033; FRL-5863-3]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Bay Area Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of

revisions to the California State Implementation Plan (SIP) for ozone.

These revisions concern the control of oxides of nitrogen

(NOX) and carbon monoxide from boilers, steam generators,

and process heaters in petroleum refineries in the San Francisco Bay

Area. The intended effect of proposing limited approval and limited

disapproval of this rule is to regulate emissions of NOX in

accordance with the requirements of the Clean Air Act, as amended in

1990 (CAA or the Act). EPA's final action on this notice of proposed

rulemaking will incorporate this rule into the Federally approved SIP.

EPA has evaluated this rule and is proposing a simultaneous limited

approval and limited disapproval under provisions of the CAA regarding

EPA actions on SIP submittals and general rulemaking authority because

these revisions, while strengthening the SIP, also do not fully meet

the CAA provisions regarding plan submissions and SIP enforceability

guidelines. This rule is being incorporated into the SIP in accordance

with the requirements for contingency measures contained in the area's

ozone maintenance plan.

DATES: Comments on this proposed action must be received in writing on

or before August 25, 1997.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking

Section (AIR-4), Air Division, U.S. Environmental Protection Agency,

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

Copies of the rule and EPA's evaluation report of this rule are

available for public inspection at EPA's Region IX office during normal

business hours. Copies of the submitted rule are also available for

inspection at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

S.W., Washington, D.C. 20460.

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.

Bay Area Air Quality Management District, Rule Development Section, 939

Ellis Street, San Francisco, CA 94109.

FOR FURTHER INFORMATION CONTACT: Lily Wong, Rulemaking Office (AIR-4),

Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1190.

SUPPLEMENTARY INFORMATION:

Background

This document addresses EPA's proposed action for Bay Area Air

Quality Management District (BAAQMD) Regulation 9, Rule 10, Nitrogen

Oxides and Carbon Monoxide from Boilers, Steam Generators, and Process

Heaters in Petroleum Refineries. BAAQMD adopted Regulation 9, Rule 10

on January 5, 1994. The State of California originally submitted the

rule being acted on in this document on May 24, 1994. Regulation 9,

Rule 10 was found to be complete on July 14, 1994 pursuant to EPA's

completeness criteria that are set forth in 40 CFR part 51, appendix

V1.

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\1\ EPA adopted the completeness criteria on February 16, 1990

(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,

revised the criteria on August 26, 1991 (56 FR 42216).

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NOX emissions contribute to the production of ground

level ozone and smog. BAAQMD Regulation 9, Rule 10, controls emissions

of NOX from boilers, steam generators, and process heaters

in petroleum refineries. The rule was adopted as part of BAAQMD's

efforts to achieve the National Ambient Air Quality Standards (NAAQS)

for ozone, as well as to satisfy the mandates of the California State

Clean Air Act requirements. The rule was originally submitted in

response to the CAA requirements for the reduction of NOX

emissions through reasonably available control technology (RACT)

contained in section 182.

However, prior to the complete submittal of the BAAQMD

NOX rules pursuant to the CAA, the district applied for an

exemption from the NOX RACT requirements pursuant to section

182(f)(3). The BAAQMD's exemption request was submitted along with

amendments to the BAAQMD's request for redesignation to attainment of

the ozone standard. The basis for the BAAQMD's exemption request was

that the area had achieved the ozone standard, as demonstrated by three

years of monitoring data, without having implemented the NOX

measures. While the BAAQMD had adopted the measures in response to both

the State and Federal requirements, the emission reductions obtained by

the rules would not occur until full implementation in the future. The

district was able to demonstrate with three years of monitoring data

that the Federal ozone standard was reached without having implemented

the NOX control measures. Subsequently, EPA evaluated the

exemption request and published an approval for the BAAQMD's petition

for a NOX RACT exemption on May 22, 1995 (60 FR 27028).

While the BAAQMD was no longer required to submit NOX

RACT rules pursuant to section 182(b)(2), the BAAQMD incorporated

several of the previously submitted NOX rules as contingency

measures in its ozone maintenance plan as a requirement for

redesignation to attainment. Since being redesignated to attainment of

the ozone standard, 2 the Bay Area has recorded violations

of the Federal ozone

[[Page 39796]]

standard, thereby triggering the contingency measures of the

maintenance plan. In accordance with the redesignation maintenance

plan, and at the request of the BAAQMD, EPA is incorporating the

NOX measures into the SIP. The BAAQMD resubmitted the

contingency measures being acted on in this document on July 23, 1996.

This action encompasses part of the measures identified in the plan as

contingency measures.

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\2\ See 60 FR 27028 (May 22, 1995).

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EPA Evaluation and Proposed Action

Because BAAQMD Regulation 9, Rule 10 is being incorporated into the

SIP as part of the maintenance measures for the area's redesignation

plan, the rule is not being evaluated for meeting the RACT emission

limits pursuant to section 182(f) of the CAA. Rather, the rule is being

incorporated into the SIP as an attainment maintenance measure for

ozone. It is therefore being evaluated against the emissions reductions

committed to in the maintenance plan, and SIP enforceability

guidelines.

BAAQMD Regulation 9, Rule 10 controls emissions of nitrogen oxides

and carbon monoxide from boilers, steam generators, and process heaters

in petroleum refineries with rated capacities greater than or equal to

1 million Btu per hour heat input. The rule requires sources (excluding

carbon monoxide boilers) to meet a facility-wide emission rate of 0.20

pounds NOX per million Btu heat input limit, and carbon

monoxide boilers to meet 300 parts per million by volume (ppmv) of

NOX. The rule requires compliance by May 31, 1995.

Although Regulation 9, Rule 10 will strengthen the SIP, this rule

still contains deficiencies related primarily to the lack of

enforceability. This rule does not specify any test method for

determination of compliance with the NOX emission limit, and

it does not require recordkeeping to demonstrate compliance with the

emission rate. A more detailed discussion of the sources controlled,

the controls required, and rule deficiencies can be found in the

Technical Support Document (TSD), dated May 30, 1997.

Because of the above deficiencies, EPA cannot grant full approval

of this rule under section 110(k)(3). Also, because the submitted rule

is not composed of separable parts which meet all the applicable

requirements of the CAA, EPA cannot grant partial approval of the rule

under section 110(k)(3). However, EPA may grant a limited approval of

the submitted rule under section 110(k)(3) in light of EPA's authority

pursuant to section 301(a) to adopt regulations necessary to further

air quality by strengthening the SIP. The approval is limited because

EPA's action also contains a simultaneous limited disapproval. In order

to strengthen the SIP, EPA is proposing a limited approval of BAAQMD's

submitted Regulation 9, Rule 10 under sections 110(k)(3) and 301(a) of

the CAA as meeting the requirements of section (110)(a). At the same

time, EPA is also proposing a limited disapproval of this rule because

it contains deficiencies which must be corrected in order to meet the

requirement for enforceability under section 110(a). If the

Administrator disapproves a submission under section 110(k) for an area

designated attainment, based on the submission's failure to meet one or

more of the elements required by the Act, the Administrator may, at her

discretion, apply one of the sanctions set forth in section 179(b),

pursuant to section 110(m). Moreover, the final disapproval triggers

the Federal implementation plan (FIP) requirement under section 110(c).

It should be noted that the rule covered by this document has been

adopted by the BAAQMD and is currently in effect in the BAAQMD. EPA's

final limited disapproval action will not prevent BAAQMD or EPA from

enforcing this rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under sections 110 and 301, and subchapter I, part D

of the CAA do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its action 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).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action proposed 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

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Oxides of nitrogen, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: July 10, 1997.

Felicia Marcus,

Regional Administrator.

[FR Doc. 97-19549 Filed 7-23-97; 8:45 am]

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