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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0029a; FRL-5697-1]

Approval and Promulgation of State Implementation Plans;

California State Implementation Plan Revision; Bay Area Air Quality

Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the

California State Implementation Plan. The revisions concern rules from

the Bay Area Air Quality Management District (BAAQMD). This approval

action will incorporate five rules into the Federally approved SIP. The

intended effect of approving these rules is to regulate emissions of

oxides of nitrogen (NOX) in accordance with the requirements of

the Clean Air Act, as amended in 1990 (CAA or the Act). The rules

control NOX emissions from boilers, steam generators, process

heaters, stationary internal combustion engines, stationary gas

turbines, and glass melting furnaces in the San Francisco Bay area. EPA

has evaluated the rules and is taking direct final action to approve

them under provisions of the CAA regarding EPA actions on SIP

submittals, and SIPs for national primary and secondary ambient air

quality standards. The rules are being approved into the SIP in

accordance with the area's ozone maintenance plan for redesignation to

attainment.

DATES: This action is effective on June 16, 1997 unless adverse or

critical comments are received by May 19, 1997. If the effective date

is delayed, a timely notice will be published in the Federal Register.

ADDRESSES: Copies of the rules and EPA's evaluation report for each

rule are available for public inspection at EPA's Region IX office

during normal business hours. Copies of the submitted rules are

available for inspection at the following locations:

Rulemaking Office (AIR-4), Air Division, U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

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: Andrew Steckel, Rulemaking Office

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

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

1185.

SUPPLEMENTARY INFORMATION:

Applicability

This document addresses EPA's direct final action for the following

BAAQMD rules: Regulation 9, Rule 7, Nitrogen Oxides and Carbon Monoxide

from Industrial, Institutional, and Commercial Boilers, Steam

Generators, and Process Heaters; Regulation 9, Rule 8, Nitrogen Oxides

and Carbon Monoxide Emissions from Stationary Internal Combustion

Engines; Regulation 9, Rule 9--Nitrogen Oxides from Stationary Gas

Turbines; Regulation 9, Rule 11--Nitrogen Oxides and Carbon Monoxide

from Utility Electric Power Generating Boilers; and Regulation 9, Rule

12, Nitrogen Oxides from Glass Melting Furnaces.

These BAAQMD rules were adopted on September 15, 1993, January 20,

1993, September 21, 1994, November 15, 1995 and January 19, 1994,

respectively. They were submitted by the State of California on July

23, 1996. The rules were found to be complete on January 17, 1997,

pursuant to EPA's completeness criteria that are set forth in 40 CFR

part 51, Appendix V.1 EPA is taking direct final action to approve

all five rules into the SIP.

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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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Background

On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA)

were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.

7401-7671q. The air quality planning requirements for the reduction of

NOX emissions through reasonably available control technology

(RACT) are set out in section 182(f) of the CAA. On November 25, 1992,

EPA published a notice of proposed rulemaking entitled ``State

Implementation Plans; Nitrogen Oxides Supplement to the General

Preamble; Clean Air Act Amendments of 1990 Implementation of Title I;

Proposed Rule,'' (the NOX Supplement) which describes the

requirements of section 182(f). The November 25, 1992 document should

be referred to for further information on the NOX requirements and

is incorporated into this document by reference. Section 182(f) of the

Clean Air Act requires States to apply the same requirements to major

stationary sources of NOX (``major'' as defined in section 302 and

section 182 (c), (d), and (e)) as are applied to major stationary

sources of volatile organic compounds (VOCs), in moderate or above

ozone nonattainment areas.2

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\2\ The San Francisco Bay Area was designated as a moderate

nonattainment area for ozone, and classified by operation of law

pursuant to sections 107(d) and 181(a) upon the date of enactment of

the CAA. See 56 FR 56694 (November 6, 1991).

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[[Page 18711]]

Section 182(b)(2) requires submittal of RACT rules for major

stationary sources of VOC emissions (not covered by a pre-enactment

control technique guidelines (CTG) document or a post-enactment CTG

document) by November 15, 1992. There were no NOX CTGs issued

before enactment and EPA has not issued a CTG document for any NOX

category since enactment of the CAA. The RACT rules covering NOX

sources and submitted as SIP revisions are expected to require final

installation of the actual NOX controls by May 31, 1995 for those

sources where installation by that date is practicable.

NOX emissions contribute to the production of ground level

ozone and smog. The five BAAQMD rules control emissions of NOX

from commercial and industrial boilers, steam generators, and process

heaters; stationary internal combustion engines; stationary gas

turbines; electric power generating boilers; and glass melting

furnaces. The rules were adopted as part of the BAAQMD's efforts to

achieve the National Ambient Air Quality Standard for ozone, as well as

to satisfy the mandates of the California State Clean Air Act

requirements. They were submitted in response to the CAA requirements

cited above.

However, subsequent 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 and submitted 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,3 the Bay Area has recorded violations of the Federal

ozone standard, therefore 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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\3\ See 60 FR 27028 (May 22, 1995).

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EPA Evaluation and Action

In determining the approvability of a NOX rule, EPA must

evaluate the rule for consistency with the requirements of the CAA and

EPA regulations, as found in section 110, and part D of the CAA and 40

CFR part 51 (Requirements for Preparation, Adoption and Submittal of

Implementation Plans). The EPA interpretation of these requirements,

which forms the basis for this action, appears in the NOX

Supplement and various EPA policy guidance documents.4 Among these

provisions is the requirement that a NOX rule must, at a minimum,

provide for the implementation of RACT for stationary sources of

NOX emissions. However, because these measures are being

incorporated into the SIP as maintenance measures for the area's

redesignation plan, the rules are not being evaluated for meeting the

RACT emission limits pursuant to section 182(f) of the CAA. Rather, the

rules are being incorporated into the SIP as attainment maintenance

measures for ozone. They are therefore being evaluated against the

emissions reductions committed to in the maintenance plan, and SIP

enforceability guidelines.

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\4\ Among other things, the pre-amendment guidance consists of

those portions of the proposed post-1987 ozone and carbon monoxide

policy that concern RACT, 52 FR 45044 (November 24, 1987); and

``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and

Deviations, Clarification to Appendix D of November 24, 1987 Federal

Register Notice'' (Blue Book) (notice of availability was published

in the Federal Register on May 25, 1988).

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EPA is approving these measures, although some areas for

improvement have been identified. Refer to the technical support

document, dated January 24, 1997, for further analysis of the rules and

areas identified for improvement. The BAAQMD rules will strengthen and

maintain the SIP and together are estimated to achieve 32.4-34 tons per

day of NOX emissions upon full implementation. EPA has evaluated

the submitted rules and has determined that they are consistent with

the CAA, EPA regulations and EPA policy. Therefore, all five rules are

being approved under section 110(k)(3) of the CAA as meeting the

applicable requirements of section 110(a) and part D.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future 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.

EPA is publishing this document without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective June 16, 1997, unless, by May 19, 1997, adverse or critical

comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective June 16, 1997.

Regulatory Process

Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

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

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector or to

State, local, or tribal governments in the aggregate.

Through submission of this State implementation plan revision, the

State and any affected local or tribal governments have elected to

adopt the program provided for under part D of the Clean Air Act. These

rules may bind State, local, and tribal governments to

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perform certain actions and also require the private sector to perform

certain duties. The rules being approved by this action will impose no

new requirements because affected sources are already subject to these

regulations under State law. Therefore, no additional costs to State,

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

action. EPA has also determined that this direct final action does not

include a mandate that may result in estimated costs of $100 million or

more to State, local, or tribal governments in the aggregate or to the

private sector.

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 economic 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 section 110 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 affected small entities. Moreover, due

to the nature of the Federal-State relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);

42 U.S.C. section 7410(a)(2).

Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2225), as revised by a July

10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air

and Radiation. The Office of Management and Budget has exempted this

regulatory action from review under Executive Order 12866.

Submission to Congress and the General Accounting Office

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 rule and 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 the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Oxides of

nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile

organic compounds.

Note: Incorporation by reference of the State Implementation

Plan for the State of California was approved by the Director of the

Federal Register on July 1, 1982.

Dated: February 6, 1997.

Felicia Marcus,

Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

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

Subpart F--California

2. Section 52.220 is amended by adding paragraph (c)(239)(i)(D) to

read as follows:

Sec. 52.220 Identification of Plan.

* * * * *

(c) * * *

(239) * * *

(i) * * *

(D) Bay Area Air Quality Management District.

(1) Regulation 9, Rule 7, adopted on September 15, 1993; Regulation

9, Rule 8, adopted on January 20, 1993; Regulation 9, Rule 9, adopted

on September 21, 1994; Regulation 9, Rule 11, adopted on November 15,

1995; Regulation 9, Rule 12, adopted on January 19, 1994.

* * * * *

[FR Doc. 97-9946 Filed 4-16-97; 8:45 am]

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