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 207-0108a; FRL-6203-7]

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

Monterey Bay Unified Air Pollution Control District's (MBUAPCD) Rule

431. This rule controls emissions of oxides of nitrogen

(NOx) and carbon monoxide (CO) from electric power boilers.

This action will incorporate the rule into the Federally approved SIP.

The intended effect of approving this rule is to regulate emissions of

NOx and CO in accordance with the requirements of the Clean

Air Act, as amended in 1990 (CAA or the Act). 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 direct final rule is effective on March 1, 1999 without

further notice, unless EPA receives adverse comments by February 1,

1999. If EPA received such comments, then 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 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

revisions are also 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.

Monterey Bay Unified Air Pollution Control District, Rule Development,

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

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 94105-3901, Telephone: (415)

744-1191.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being approved into the California SIP includes MBUAPCD's

Rule 431, Emissions from Electric Power Boilers. This rule was

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

10, 1998.

II. Background

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

the Act) were enacted. Public Law 101-549, 104 Stat. 2399, codified at

42 U.S.C. 7401-7671q. 40 CFR 81.305 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 CO; therefore stationary sources

in the air district are not subject to the Reasonably Available Control

Technology (RACT) requirements of section 182(b)(2).

On March 10, 1998, the State of California submitted to EPA

MBUAPCD's Rule 431, Emissions from Electric Power Boilers which was

amended by MBUAPCD on December 17, 1997. This submitted rule was found

to be complete on May 21, 1998 pursuant to EPA's completeness criteria

that are set forth in 40 CFR Part 51

[[Page 72196]]

Appendix V 1 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. MBUAPCD's Rule 431 controls emissions

NOX and CO from electric power boilers. The rule was adopted

as part of MBUAPCD's effort to maintain attainment of the National

Ambient Air Quality Standards (NAAQS) for ozone and CO. The following

is EPA's evaluation and final action for this rule.

III. EPA Evaluation and Action

In determining the approvability of a NOX and CO 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, CO, and

ozone NAAQS, the emission limits and enforceability elements such as

applicability, test methods, recordkeeping, and compliance

determinations are still appropriate as part of the MBUAPCD's ozone

attainment plan. Rule 431 is amended from the previous SIP approved

rule to: (1) change the applicability from utility owner to non-utility

owner; (2) delete provisions that no longer apply (i.e., for old units

removed from service); and (3) incorporate acid rain program

requirements for continuous emission monitoring system (CEMs). A more

detailed discussion can be found in the Technical Support Document

(TSD) for Rule 431, dated October 27, 1998.

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

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

MBUAPCD's Rule 431, Emissions from Electric Power Boilers, 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.

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 March

1, 1999 without further notice unless the Agency receives adverse

comments by February 1, 1999.

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 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 March 1, 1999 and no further action will be taken on the

proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

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

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

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the 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 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected and

[[Page 72197]]

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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

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

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 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).

F. 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 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.

G. 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).

H. 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 March 1, 1999. 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.

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: December 4, 1998.

Laura Yoshii,

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)(254)(i)(G)(1)

to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(254) * * *

(i) * * *

(G) Monterey Bay Unified Air Pollution Control District.

(1) Rule 431, adopted on December 17, 1997.

* * * * *

[FR Doc. 98-34552 Filed 12-30-98; 8:45 am]

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