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 211-0102a; FRL-6161-8]

Approval and Promulgation of 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 a revision to the

California State Implementation Plan. 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 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). 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 general rulemaking

authority.

DATES: This rule is effective on November 30, 1998 without further

notice, unless EPA receives adverse comments by October 29, 1998. If

EPA receives such comment, it will publish a timely withdrawal in the

Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the

Region IX office listed below. Copies of the rule revision are

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

business hours and 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

[[Page 51834]]

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

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

Francisco, CA 94109

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, Telephone: (415) 744-1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being approved into the California SIP is BAAQMD

Regulation 1, General Provisions and Definitions. This rule was

submitted by the California Air Resources Board (CARB) to EPA on June

23, 1998. A corrected version of BAAQMD Regulation 1, revised only to

remove a provision that was inadvertently included with the rule, was

subsequently forwarded by CARB to EPA on September 2, 1998.

II. Background

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

areas under the provisions of the Clean Air Act, as amended in 1977

(1977 Act 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 1977 Act, that the

above district's portion of the California 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, the

Clean Air Act Amendments of 1990 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.

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

See 60 FR 98 (May 22, 1995). The EPA subsequently redesignated 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 July 10, 1998. See 63 FR 37258.

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On May 27, 1998, EPA proposed limited approval and limited

disapproval of the version of Regulation 1 adopted by BAAQMD on

December 19, 1990 and submitted by CARB on May 13, 1991. 63 FR 28958.

EPA did not propose full approval of Regulation 1 because that version

contained a public nuisance provision and references to a Manual of

Procedures that are inappropriate for incorporation into the SIP. EPA

will not finalize action on this previous submittal of the rule because

CARB withdrew the May 13, 1991 submittal of BAAQMD Regulation 1 at the

request of the district on July 20, 1998.

This document addresses EPA's direct-final action for BAAQMD

Regulation 1, General Provisions and Definitions. The BAAQMD adopted

Regulation 1 on November 11, 1993. This submitted rule was found to be

complete on August 25, 1998 pursuant to EPA's completeness criteria

that are set forth in 40 CFR part 51, Appendix V 2 and is

being finalized for approval into the SIP. Regulation 1, as submitted

by BAAQMD on June 23, 1998, inadvertently contained a provision that

the district had not intended to submit to the EPA for inclusion in the

SIP. The State of California removed the provision from Regulation 1 at

the request of BAAQMD and resubmitted the corrected version to EPA on

September 2, 1998. It is this corrected version, as submitted to EPA by

the State of California, that this direct final action incorporates

into the Federally approved SIP.

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\2\ 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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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. This rule was originally adopted as part

of the district'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 final action for this

rule.

III. EPA Evaluation and 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''), 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 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. BAAQMD Regulation 1 includes the following

significant changes from the current 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 Section 236 and 237. The

deficiencies noted in EPA's May 27, 1998 proposed limited approval and

limited disapproval have been corrected in this version.

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

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

BAAQMD Regulation 1, General Provisions and Definitions is being

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

of section 110(a).

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

adverse comments be filed. This rule will be effective November 30,

1998 without further notice unless the Agency receives adverse comments

by October 29, 1998.

If the EPA receives such comments, then EPA will publish a timely

withdrawal in the Federal Register 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 on this rule. Any

parties interested in commenting on this rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on November 30, 1998 and no further action will

be taken on the proposed rule.

[[Page 51835]]

IV. Administrative Requirements

A. Executive Orders 12866 and 13045

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and 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

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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 create any new

requirements, I certify that this action will not have a significant

economic impact on a substantial number of small entities. Moreover,

due to the nature of the Federal-State relationship under the Clean Air

Act, 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

annual 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 promulgated does not

include a Federal mandate that may result in estimated annual 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

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 Comptroller General

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 November 30, 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, Particulate matter, Reporting and recordkeeping

requirements, Sulfur oxides, 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: September 4, 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)(256) to read

as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(256) New and amended regulations for the following APCDs were

submitted on June 23, 1998, by the Governor's designee.

(i) Incorporation by reference.

(A) Bay Area Air Quality Management District.

(1) Regulation 1, revised on November 3, 1993.

* * * * *

[FR Doc. 98-25891 Filed 9-28-98; 8:45 am]

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