Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Monterey Bay Unified Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 191-0088a; FRL-6138-6]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Monterey Bay Unified Air Pollution

Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the

California State Implementation Plan (SIP). The revision concerns a

rule from the Monterey Bay Unified Air Pollution Control District

(MBUAPCD) which controls emissions of oxides of nitrogen

(NOX) and sulfur compounds. 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 and SO2 in accordance with the requirements

of the Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is

finalizing the approval of this revision into the California SIP under

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

for national primary and secondary ambient air quality standards.

DATES: This rule is effective on October 13, 1998 without further

notice, unless EPA receives relevant adverse comments by September 10,

1998. If EPA receives such comment, then it will publish a timely

withdrawal in the Federal Register informing the public that this rule

will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region

IX office listed below. Copies of the rule revision and EPA's

evaluation report of the rule are available for public inspection at

EPA's Region IX office during normal business hours. Copies of the

submitted rule revisions 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 95812.

Monterey Bay Unified Air Pollution Control District, Rule Development,

24580 Silver Cloud Ct., Monterey, CA 93940-6536.

FOR FURTHER INFORMATION CONTACT: Stanley Tong, Rulemaking Office (AIR-

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

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

1191.

SUPPLEMENTARY INFORMATION:

I. Applicability

This document addresses EPA's direct final action to approve

Monterey Bay Unified Air Pollution Control District (MBUAPCD) Rule 404,

Sulfur Compounds and Nitrogen Oxides, into the California SIP. This

rule was adopted by MBUAPCD on October 16, 1996. It was submitted by

the California

[[Page 42720]]

Air Resources Board (CARB) to EPA on March 3, 1997.

II. Background

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

the Act) were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42

U.S.C. 7401-7671q. 40 CFR part 91.305 provides the attainment status

designations for air districts in California. MBUAPCD is listed as

being in attainment for the National Ambient Air Quality Standards

(NAAQS) for ozone, NO2, and SO2; therefore

stationary sources in the air district are not subject to the

Reasonably Available Control Technology (RACT) requirements of section

182(b)(2).

On October 16, 1996 MBUAPCD adopted Rule 404, Sulfur Compounds and

Nitrogen Oxides. On March 3, 1997, the State of California submitted

this rule to EPA. This submitted rule was found to be complete on

August 12, 1997 pursuant to EPA's completeness criteria that are set

forth in 40 CFR Part 51 Appendix V1 and is being finalized

for approval into the SIP. By today's document, EPA is taking direct

final action to approve this submittal. This final action will

incorporate this rule into the Federally approved SIP.

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

(55 FR 5824) 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. The combustion of fuels containing sulfur

compounds leads to the production of SO2. MBUAPCD Rule 404

provides emission limits for oxides of nitrogen and sulfur compounds.

The following is EPA's evaluation and final action for these rules.

III. EPA Evaluation and Action

In determining the approvability of a NOX and

SO2 rule, EPA must evaluate the rule for consistency with

the requirements of the CAA and EPA regulations, as found in section

110 and 40 CFR part 51 (Requirements for Preparation, Adoption and

Submittal of Implementation Plans) respectively. The EPA interpretation

of these requirements, which forms the basis for this action, appears

in various EPA policy guidance documents. 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 in areas designated as nonattainment for ozone. Since MBUAPCD

is in attainment for ozone, RACT requirements do not apply.

While MBUAPCD is in attainment with the NO2,

SO2 and ozone NAAQS, many of the general SIP regulations

regarding enforceability, for example, are still appropriate for the

rule. In determining the approvability of this rule, EPA also evaluated

it in light of the ``SO2 Guideline Document'', EPA-452/R-94-

008.

On May 31, 1972 EPA approved into the SIP a version of Rule 404--

paragraphs (b) and (c), Sulfur Content and Oxides of Nitrogen, that had

been adopted by San Benito APCD and Monterey-Santa Cruz Unified APCD.

On October 27, 1977 EPA approved into the SIP Rule 404 paragraph (c),

Sulfur Content and Oxides of Nitrogen that has been adopted by MBUAPCD.

MBUAPCD submitted Rule 404, Sulfur Content and Oxides of Nitrogen,

includes the following significant changes from the current SIP:

Consolidates NOX emission limits under MBUAPCD

that were previously listed separately for Monterey-Santa Cruz Air

Pollution Control District (APCD) and San Benito County APCD

Adds a section on applicability.

Adds a section on definitions.

Adds a section on recordkeeping.

Adds a section on test methods.

Clarifies, through an exemptions section, that a source

subject to Best Available Control Technology (BACT) would not be

subject to the general emission limits contained in Rule 404.

A more detailed discussion can be found in the Technical Support

Document (TSD) for Rule 404, dated July 17, 1998.

EPA has evaluated the submitted rule and has determined that it is

consistent with the CAA, EPA regulations and EPA policy. Therefore,

MBUAPCD Rule 404, Sulfur Compounds and Oxides of Nitrogen, is being

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

of section 110(a), section 182(f) and the NOX Supplement to

the General Preamble.

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.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective October

13, 1998 without further notice unless the Agency receives relevant

adverse comments by September 10, 1998.

If the EPA received such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period. 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 rule will be effective on

October 13, 1998 and no further action will be taken on the proposed

rule.

IV. 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).

[[Page 42721]]

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

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 October 13, 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 compound, sulfur oxides.

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 28, 1998.

Sally Seymour,

Acting 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)(244)(i)(A)(2)

to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(244) * * *

(i) * * *

(A) * * *

(2) Rule 404, adopted on October 16, 1996.

* * * * *

[FR Doc. 98-21353 Filed 8-10-98; 8:45 am]

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