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 179-0061; FRL-6131-4]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Bay Area Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the approval of a revision to the California

State Implementation Plan (SIP) proposed in the Federal Register on

April 17, 1997. The revision concerns a rule from the Bay Area Air

Quality Management District (BAAQMD). This approval action will

incorporate this rule into the Federally approved SIP. The intended

effect of approving this rule 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 rule concerns

the control of NOX emissions from utility electric power

generating boilers in the San Francisco Bay area. Thus, EPA is

finalizing the approval of this revision into the California SIP under

provisions of the CAA regarding EPA actions on SIP submittals, and SIPs

for national primary and secondary ambient air quality standards. The

rule is being approved into the SIP in accordance with the area's ozone

maintenance plan.

DATES: This action is effective on August 31, 1998.

ADDRESSES: Copies of the rule and EPA's evaluation report are available

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

hours. Copies of the submitted rule 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 95812.

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

Ellis Street, San Francisco, CA 94109.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office

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

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

744-1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

The BAAQMD rule being approved into the California SIP is

Regulation 9, Rule 11, Nitrogen Oxides and Carbon Monoxide from Utility

Electric Power Generating Boilers. This BAAQMD rule was adopted on

February 16, 1994 and amended November 15, 1995. A revision of the

amended rule, containing the Reasonably Available Control Technology

(RACT) NOX provisions required under the Act but omitting

state-mandated NOX emission limits, was submitted to EPA by

the State of California on July 23, 1996. The rule was 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 A

subsequent version revised only to correct typographical errors was

submitted on February 20, 1998. EPA is taking final action to approve

the rule 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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II. Background

On April 17, 1997, EPA proposed to approve Regulation 9, Rule 11

into the California SIP (62 FR 18730). While the BAAQMD was no longer

required to submit NOX RACT rules pursuant to section

182(b)(2), the BAAQMD incorporated several previously submitted

NOX rules as contingency measures in its ozone maintenance

plan as a requirement for redesignation to attainment. Shortly after

being redesignated to attainment of the ozone standard, the Bay Area

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 submitted the contingency measure being acted on in this

document on July 23, 1996. This action encompasses part of the measures

identified in the plan as contingency measures. A detailed discussion

of the background for BAAQMD Regulation 9, Rule 11 (as submitted on

July 23, 1996) is provided in the proposed rule cited above.

EPA has evaluated BAAQMD Regulation 9, Rule 11 for consistency with

the requirements of the CAA and EPA regulations and EPA interpretation

of these requirements as expressed in the various EPA policy guidance

documents referenced in the proposed rule cited above. EPA has found

that the BAAQMD submitted rule meets the applicable EPA requirements. A

detailed discussion of the BAAQMD rule provisions and EPA's evaluation

has been provided in the proposed rule and in the technical support

document (TSD), dated January 24, 1997, which is available at EPA's

Region IX office.

III. Response to Public Comments

A 30-day public comment period was provided in 62 FR 18730. The

rule in the present action, along with four additional rules (BAAQMD

Regulation 9, Rule 7; Regulation 9, Rule 8; Regulation 9, Rule 9; and

Regulation 9, Rule 12) were the subject of a prior direct final action.

See 62 FR 18710 (April 17, 1997). EPA received adverse comments on

Regulation 9, Rule 11 only. Consequently the previous direct final

action was withdrawn. See 62 FR 32687 (June 17, 1997). Following is

EPA's response to comments received on Regulation 9, Rule 11 from

Pacific Gas and Electric Company (PG&E), a public utility that owns and

operates sources affected by Regulation 9, Rule 11. PG&E objected to

the presence in BAAQMD Regulation 9, Rule 11 of provisions that relate

to carbon monoxide and ammonia emissions on the grounds that these

substances are not ozone precursors. However, the BAAQMD submitted the

carbon monoxide and ammonia provisions for inclusion into the SIP and

there is no basis for EPA to disapprove them.

PG&E also objected to the inclusion in BAAQMD Regulation 9, Rule 11

of references to those portions of the rule which contain state-

mandated NOX emissions limits and were therefore not

included in the rule as submitted to EPA on July 23, 1996. In response

to this comment, the State of California removed these typographical

errors from

[[Page 40829]]

BAAQMD Regulation 9, Rule 11 and resubmitted the corrected version to

EPA on February 20, 1998. It is this corrected version, as submitted to

EPA by the State of California, that this approval action incorporates

into the Federally approved SIP.

IV. EPA Action

EPA is finalizing this action to approve the above rule for

inclusion into the California SIP. EPA is approving the submittal under

section 110(k)(3) as meeting the requirements of section 110(a) and

part D of the CAA. This approval action will incorporate this rule into

the Federally approved SIP. The intended effect of approving this rule

is to regulate emissions of NOX in accordance with the

requirements of the CAA.

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.

V. Administrative Requirements

A. Executive Orders 12866 and 13045

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

regulatory action from E.O. 12866 review.

The final rule is not subject to E.O. 13045, entitled ``Protection

of Children from Environmental Health Risks and Safety Risks,'' because

it is not an ``economically significant'' action under E.O. 12866.

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 section 110 and subchapter I, part D of the

Clean Air Act 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 actions 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 promulgated 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. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the Administrative Procedure Act

(APA) as amended 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 section 804(2) of the

APA as amended.

E. Petitions for Judicial Review

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 September 29, 1998. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, 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: July 13, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

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 et seq.

Subpart F--California

2. Section 52.220 is amended by adding paragraph (c)(239)(i)(E)(4)

to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(239) * * *

(i) * * *

(E) * * *

(4) Rule 9-11 amended November 15, 1995.

* * * * *

[FR Doc. 98-20510 Filed 7-30-98; 8:45 am]

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