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 013-0073; FRL-6102-1]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, Bay Area Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

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

a revision to the California State Implementation Plan (SIP). This

revision concerns the general provisions and definitions that are

applicable to all regulations in the Bay Area Air Quality Management

District.

The intended effect of proposing a limited approval and limited

disapproval of this rule is to clarify the general provisions and

definitions that apply to the regulation of emissions of volatile

organic compounds (VOCs), oxides of nitrogen (NOX), and

other pollutants in accordance with the requirements of the Clean Air

Act, as amended in 1990 (CAA or the Act). EPA's final action on this

proposed rule will incorporate this rule into the federally approved

SIP. EPA has evaluated the rule and is proposing a simultaneous limited

approval and limited disapproval under provisions of the CAA regarding

EPA action on SIP submittals and general rulemaking authority. While

strengthening the SIP, this revision contains a public nuisance

provision and references to a Manual of Procedures that are

inappropriate for incorporation into the SIP. The limited disapproval

portion of this proposed rulemaking will exclude elements that are not

required by the Act.

DATES: Comments must be received on or before June 26, 1998.

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

[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX,

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

Copies of the rule are available for public inspection at EPA's

Region IX office during normal business hours and at the following

locations:

Bay Area Air Quality Management District, 939 Ellis Street, San

Francisco, CA 94109

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, [AIR-

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

Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-

1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for approval into the California SIP is Bay

Area Air Quality Management District, BAAQMD, Regulation 1, General

Provisions and Definitions. This rule was submitted by the California

Air Resources Board to EPA on May 13, 1991.

II. Background

On March 3, 1978, EPA promulgated a list of ozone nonattainment

areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-

amended Act), that included the San Francisco Bay Area. 43 FR 8964. On

May 26, 1988, EPA notified the Governor of California, pursuant to

section 110(a)(2)(H) of the pre-amended Act, that the Bay Area Air

Quality Management District's portion of the SIP was inadequate to

attain and maintain the ozone standard and requested that deficiencies

in the existing SIP be corrected (EPA's SIP-Call). On November 15,

1990, amendments to the 1977 CAA were enacted. Pub. L. 101-549, 104

Stat. 2399, codified at 42 U.S.C. 7401-7671q.

On November 12, 1993, BAAQMD submitted a request for redesignation

to attainment of the ozone standard. Subsequently, EPA evaluated and

approved BAAQMD's request and the San Francisco Bay Area was

reclassified as an attainment area.\1\ 40 CFR 81.305.

---------------------------------------------------------------------------

\1\ The San Francisco Bay Area was redesignated to attainment.

See 60 FR 98 (May 22, 1995). The EPA proposed to redesignate the San

Francisco Bay Area back to nonattainment for ozone based on a number

of violations of the National Ambient Air Quality Standards (NAAQS)

on December 19, 1997. See 62 FR 66578.

---------------------------------------------------------------------------

This document addresses EPA's proposed action for BAAQMD Regulation

1, General Provisions and Definitions. The BAAQMD adopted this

[[Page 28959]]

rule on December 19, 1990. This submitted rule was found to be complete

on July 10, 1991, pursuant to EPA's completeness criteria that are set

forth in 40 CFR part 51, appendix V; \2\ and is being proposed for

limited approval and limited disapproval.

---------------------------------------------------------------------------

\2\ EPA adopted 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).

---------------------------------------------------------------------------

BAAQMD Regulation 1 clarifies the definitions and general

provisions that apply to the regulation of emissions of VOCs,

NOX, and other pollutants. These pollutants contribute to

the production of ground level ozone and smog. BAAQMD Regulation 1 was

originally adopted as part of BAAQMD's effort to achieve the National

Ambient Air Quality Standard (NAAQS) for ozone and has been revised in

response to EPA's SIP-Call. The following is EPA's evaluation and

proposed action for BAAQMD Regulation 1.

III. EPA Evaluation and Proposed Action

In determining the approvability of a rule, EPA must evaluate the

rule for consistency with the requirements of the CAA and EPA

regulations, as found in section 110 of the CAA and 40 CFR part 51

(Requirements for Preparation, Adoption, and Submittal of

Implementation Plans).

In addition, this rule was evaluated against the SIP enforceability

guidelines found in ``Issues Relating to VOC Regulation Cutpoints,

Deficiencies, and Deviations--Clarification to appendix D of November

24, 1987 Federal Register'' (EPA's `Blue Book') and the EPA Region IX--

California Air Resources Board document entitled ``Guidance Document

for Correcting VOC Rule Deficiencies'' (April, 1991), and against other

EPA policies. In general, these guidance documents have been set forth

to ensure that VOC and other rules are fully enforceable and strengthen

or maintain the SIP.

EPA previously approved various portions of BAAQMD Regulation 1,

General Provisions and Definitions, into the SIP on September 2, 1981,

July 6, 1982, and November 10, 1982. These portions were originally

adopted by BAAQMD on September 5, 1979, May 21, 1980, December 17,

1980, and March 17, 1982. EPA has evaluated BAAQMD Regulation 1,

submitted May 13, 1991, and compared it to the rule currently

incorporated in the SIP. BAAQMD's submitted Regulation 1 includes the

following significant changes from the SIP:

The scope of the exemption in section 110.5 has been

narrowed to prohibit the disposal of waste propellants, explosives, or

pyrotechnics by manufacturing facilities in open outdoor fires, and

Definitions for volatile organic compound and reduced

sulfur compounds have been added in sections 236 and 237.

Although these changes will strengthen the SIP, this rule also

contains elements that are not appropriate for incorporation into the

SIP. Regulation 1 includes provisions in sections 600-604, which have

been approved into the SIP, and section 605, which is a new portion of

the rule, that reference the BAAQMD's Manual of Procedures (MOP). The

MOP sets policy and procedures for permitting, CEQA review, sample and

source testing, emission monitoring, and mobile source emission

credits. Because the MOP contains policies which are regularly and

often revised by the BAAQMD and because those policies are not always

submitted to EPA for approval, the references to the MOP potentially

provide for director's discretion which may alter the stringency of the

federally approved SIP. While EPA previously approved some MOP

references, we should not repeat or aggravate that error by approving

sections 600-605 at this time.

Regulation 1, section 301 of the May 13, 1991 submittal contains a

new provision that has not been previously incorporated into the SIP

which prohibits sources from discharging quantities of air contaminants

that cause a nuisance. EPA believes that nuisance provisions are

inappropriate for inclusion in the SIP because they are not in any way

required by the Act and do not specifically control criteria air

pollutants. Nuisance provisions generally deal with complaints relating

to odor or dust, problems which are appropriate for local air quality

management district response. For these reasons, EPA believes it is

inappropriate to incorporate nuisance provisions into the federally

enforceable SIP. The removal of section 301 of Regulation 1 from the

BAAQMD SIP submittal will have no effect on BAAQMD's ability to enforce

its nuisance provision.

Because the elements described above are inappropriate for

inclusion in the SIP, 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 1 under sections 110(k)(3) and 301(a) of the CAA.

It should be noted that the rule covered by this proposed

rulemaking has been adopted by the BAAQMD and is currently in effect in

the BAAQMD. EPA's final limited disapproval action will not prevent the

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.

IV. 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 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, the Administrator certifies 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.

[[Page 28960]]

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

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 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.

D. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to

any rule that is (1) likely to be ``economically significant'' as

defined under Executive Order 12866, and (2) the Agency has reason to

believe that the environmental health or safety risk addressed by the

rule may have a disproportionate effect on children. If a regulatory

action meets both criteria, the Agency must evaluate the environmental

health or safety effects of the planned rule on children, and explain

why the planned regulation is preferable to other potentially effective

and reasonably feasible alternatives considered by the Agency.

This rule is not subject to E.O. 13045, ``Protection of Children

from Environmental Health Risks and Safety Risks'' because this is not

an ``economically significant'' regulatory action as defined by E.O.

12866, and because it does not involve decisions on environmental

health or safety risks that may disproportionately affect children.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile organic compounds.

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

Dated: May 12, 1998.

Sally Seymour,

Acting Regional Administrator, Region IX.

[FR Doc. 98-13992 Filed 5-26-98; 8:45 am]

BILLING CODE 6560-50-P