Final 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 102-0120; FRL-6220-2a]

Final 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 limited approval and limited disapproval of

revisions to the California State Implementation Plan (SIP) proposed in

the Federal Register on November 6, 1998. This limited approval and

limited disapproval action will incorporate portions of Rules 1, 2 and

4 of Regulation 2--Permits, for the Bay Area Air Quality Management

District (BAAQMD or the ``District'') into the federally approved State

Implementation Plan (SIP).

The intended effect of finalizing this limited approval and limited

disapproval of these rules is to strengthen the federally approved SIP

by incorporating these updated provisions and to satisfy Federal

requirements for an approvable nonattainment area NSR SIP for the

District.

Thus, EPA is finalizing simultaneous limited approval and limited

disapproval as a revision into the California SIP under provisions of

the Act regarding EPA action on SIP submittals, and general rulemaking

authority. While strengthening the SIP, this revision contains

deficiencies which the BAAQMD must address before EPA can grant full

approval under Section 110(k)(3).

DATES: This action is effective on February 25, 1999.

ADDRESSES: Copies of the state submittal and other supporting

information used in developing the final action are available for

public inspection (Docket Number CA102-0120) 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: John Walser, Permits Office [AIR-3],

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

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

1257.

SUPPLEMENTARY INFORMATION:

I. Applicability

The following rules are being approved for limited approval and

limited disapproval into the California SIP: District Regulation 2

Permits, Rule 1 General Requirements, Rule 2 New Source Review, and

Rule 4 Emissions Banking. Rules 2 and 4 were submitted by the

California Air Resources Board on behalf of the District to EPA on

September 28, 1994. Rule 1 was submitted by the California Air

Resources Board on behalf of the District to EPA on December 31, 1990.

II. Background

On November 6, 1998, in 63 FR 59924, EPA proposed limited approval

and limited disapproval for BAAQMD Regulation 2 Permits, Rules 1, 2 and

4. The BAAQMD adopted Rule 1 on November 1, 1989, and Rules 2 and 4 on

June 15, 1994. Submitted Rule 1 was found to be complete on February

28, 1991, and submitted Rules 2 and 4 were found to be complete on

November 22, 1994,1 pursuant to EPA's completeness criteria

that are set forth in 40 CFR Part 51, Appendix V.2 These

rules were proposed for limited approval and limited disapproval. A

detailed discussion of the background for these rules and EPA's

evaluation is provided in the November 6, 1998 Proposed Rulemaking

Notice (NPRM) cited above.

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\1\ The proposed action on November 6, 1998 mistakenly

identified the submittal and completeness date for Rule 1 as the

same date as Rules 2 and 4.

\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).

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III. Response to Comments

A 30 day public comment period was provided in 63 FR 59924. EPA

received one public comment on the proposal from the California Council

for Environmental and Economic Balance (CCEEB), and is responding to

that comment in this document.

CCEEB commented that EPA should specifically exclude Section 2-4-

304.3 of Regulation 2, Rule 4 from any final SIP approval of all or

portions of Rule 4. Section 2-4-304.3 of Rule 4 states that ``emission

reduction credits may not be used to exempt a source from any other air

pollution control requirements whatsoever of federal, State, or

District laws, rules and regulations.'' CCEEB is concerned that Section

2-4-304.3 addresses State law issues, and is not necessary to meet

Federal Clean Air Act requirements. In addition, CEEB commented that

the California Health and Safety Code Section 39602 provides that the

California SIP ``shall include only those provisions necessary to meet

the requirements of the Clean Air Act.''

Section 2-4-304.3 was not a section of Regulation 2, Rule 4 that

EPA identified as a SIP-approvability issue in 63 FR 59924. As written,

Section 2-4-304.3 of Rule 4 is not inconsistent with federal

requirements or EPA policy and does not present any SIP-approvability

issues. If CCEEB believes the language is inconsistent with state law,

its remedy is at the state and local level. The District, if in

agreement with CCEEB, would need to revise the rule and submit the rule

modification to the California Air Resources Board as a SIP submittal.

EPA does not have the authority to revise the rule language as

requested, or exclude Section 2-4-304.3 from final SIP approval.

IV. EPA Evaluation and Final Action

BAAQMD Regulation 2 clarifies the terms and requirements that apply

to the District's NSR regulation and emissions banking program. BAAQMD

Regulation 2 was originally adopted as part of BAAQMD's effort to

achieve the National Ambient Air Quality Standard (NAAQS) for ozone.

For EPA's detailed evaluation of BAAQMD Regulation 2, Rules 1, 2 and 4,

please refer to the NPRM at 63 FR 59924, November 6, 1998.

EPA has evaluated District Rules 1, 2 and 4 of Regulation 2 and has

determined that the rules contain

[[Page 3851]]

deficiencies and are not fully consistent with CAA requirements, EPA

regulations and EPA policy. Because these rule deficiencies are

inappropriate for inclusion in the SIP, EPA cannot grant full approval

of these rules under section 110(k)(3). Also, because the submitted

rules are 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 is granting final limited

approval of the submitted rules 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 final

approval is limited because EPA's action also contains a simultaneous

limited disapproval. In order to strengthen the SIP, EPA is finalizing

limited approval of BAAQMD's submitted Regulation 2 under sections

110(k)(3) and 301(a) of the CAA.

It should be noted that the rules covered by this final rulemaking

have been adopted by the BAAQMD, subsequently revised, and are

currently in effect in the BAAQMD. EPA's final limited disapproval

action does not prevent the BAAQMD or EPA from enforcing these rules.

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. Docket

Copies of Bay Area's submittal and other information relied upon

for the final actions are contained in docket number CA102-0120

maintained at the EPA Regional Office. The docket is an organized and

complete file of all the information submitted to, or otherwise

considered by, EPA in the development of this final rulemaking. The

docket is available for public inspection at the location listed under

the ADDRESSES section of this document.

B. Executive Order 12866

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

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

Planning and Review.

C. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, 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, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to 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 any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 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.

D. 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.

E. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to 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 officials and 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. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this rule.

F. 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).

G. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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(``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.

H. 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).

I. 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 29, 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, Particulate matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile organic compounds.

Dated: January 4, 1999.

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 paragraphs (c)(182)(i)(B)(6)

and (c)(199)(i)(A)(8) to read as follows:

Sec. 52.220 Identification of Plan.

* * * * *

(c) * * *

(182) * * *

(i) * * *

(B) * * *

(6) Regulation 2, Rule 1 adopted on November 1, 1989.

* * * * *

(199) * * *

(i) * * *

(A) * * *

(8) Regulation 2, Rule 2 and Rule 4 adopted on June 15, 1994.

* * * * *

[FR Doc. 99-1647 Filed 1-25-99; 8:45 am]

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