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[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Proposed Rules]
[Pages 94633-94635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27518]

[[Page 94633]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2024-0417; FRL-12279-01-R9]

Air Plan Conditional Approval; California; Bay Area Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
conditionally approve revisions to the Bay Area Air Quality Management 
District (BAAQMD) portion of the California State Implementation Plan 
(SIP). These revisions concern emissions of oxides of nitrogen 
(NOX) from natural gas-fired furnaces and water heaters. We 
are proposing to approve local rules to regulate these emission sources 
under the Clean Air Act (CAA). We are taking comments on this proposal 
and plan to follow with a final action.

DATES: Comments must be received on or before December 30, 2025.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0417 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a 
language other than English or if you are a person with a disability 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Allison Kawasaki, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105; phone: (415) 972-3922; email: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to the EPA.

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. The EPA's Recommendations To Further Improve the Rules
    E. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
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       Local agency           Rule No.          Rule title               Adopted/amended             Submitted
----------------------------------------------------------------------------------------------------------------
BAAQMD...................             9-4  Nitrogen Oxides from  (Amended)03/15/23..............      01/10/2024
                                            Natural Gas-Fired
                                            Furnaces.
BAAQMD...................             9-6  Nitrogen Oxides from  (Adopted) 03/15/23.............      01/10/2024
                                            Natural Gas-Fired
                                            Boilers and Water
                                            Heaters.
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    On July 10, 2024, the submittal for BAAQMD Rule 9-4 and Rule 9-6 
were deemed complete by operation of law to meet the completeness 
criteria in 40 CFR part 51, appendix V.

B. Are there other versions of these rules?

    We approved an earlier version of Rule 9-4 into the SIP on January 
7, 1986 (47 FR 29231). The BAAQMD adopted revisions to the SIP-approved 
version on March 15, 2023, and CARB submitted them to us on January 10, 
2024. If we take final action to approve the March 15, 2023 version of 
Rule 9-4, this version will replace the previously approved version of 
this rule in the SIP.
    There is no previous version of Rule 9-6 in the SIP. The BAAQMD 
locally adopted an earlier version of Rule 9-6 on April 1, 1992, and an 
amended version of the rule (amended March 15, 2023) was submitted by 
CARB to the EPA on January 10, 2024.

C. What is the purpose of the submitted rules?

    Emissions of NOX contribute to the production of ground-
level ozone, smog and particulate matter, which harm human health and 
the environment. Section 110(a) of the CAA requires states to submit 
plans that provide for implementation, maintenance, and enforcement of 
the NAAQS. The CAA section 172(c)(1) and section 182 requires areas 
that are designated as ``Moderate'' or above for ozone nonattainment to 
implement Reasonably Available Control Technology (RACT) for specific 
sources. The San Francisco Bay Area is designated as ``Marginal'' 
nonattainment for the 2015, 2008, and 1997 8-hour ozone National 
Ambient Air Quality Standards (NAAQS).\1\ The San Francisco Bay Area is 
a Marginal ozone nonattainment area, which is a less severe 
classification than Moderate, and thus is not required to implement 
RACT for the sources regulated by the submitted rules.
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    \1\ 40 CFR 81.305. See 83 FR 25776 (June 04, 2018); 77 FR 30088 
(May 21, 2012); 69 FR 23858 (June 15, 2004).
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    CAA section 189 requires areas that are are designated Moderate or 
above for particulate matter nonattainment to assure that reasonably 
available control measures (RACM) are being implemented within the 
nonattainment area. The San Francisco Bay Area was designated as 
Moderate nonattainment for the 2006 24-hour PM2.5 NAAQS (74 
FR 58688, November 13, 2009). In 2017, the EPA made a determination of 
attainment by the attainment date (December 31, 2015) for this standard

[[Page 94634]]

based on air monitoring data.\2\ The EPA generally evaluates 
PM2.5 RACM requirements in the context of broader attainment 
planning actions as opposed to individual rule submissions. 
Nonetheless, pursuant to 40 CFR 51.1015(a), an EPA determination that a 
Moderate PM2.5 nonattainment area has attained the 
PM2.5 NAAQS suspends the requirement for the State to 
demonstrate RACM. Thus, although the State may choose to rely on 
reductions from these rules in a future plan or RACM demonstration, we 
will not evaluate the rules for PM2.5 RACM in this 
rulemaking. Accordingly, Rules 9-4 and 9-6 are not being evaluated for 
RACT or RACM at this time.
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    \2\ See 74 FR 58688 (June 02, 2014); 82 FR 21711 (May 10, 2017).
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    BAAQMD Rule 9-4 is an amended rule that sets emission limits for 
natural gas-fired furnaces sold, installed, or offered for sale within 
the District. Amended Rule 9-4 instates more stringent emission 
requirements that prohibit the sale or installation of natural gas-
fired furnaces manufactured after January 1, 2024, that emit more than 
14 ng/J (nanograms per Joule) of NOX and natural gas-fired 
furnaces manufactured after January 1, 2029, that emit more than 0.0 
ng/J of NOX. All natural gas-fired furnaces must be 
certified for sale, installation, or offering for sale within the 
District. Test methods and procedures are provided in Rule 9-4 for 
compliance demonstrations.
    BAAQMD Rule 9-6 is a locally adopted rule that has not been 
previously approved into the SIP. The rule applies similar emission 
limit timelines for natural gas-fired water heaters and boilers, where 
appliances with higher heat input ratings receive a lower 
NOX emission limit at a later date. Natural gas-fired 
appliances with a 75,000 British Thermal Unit (BTU)/hour or less rated 
heat input capacity manufactured after January 1, 2027, cannot be sold, 
installed, or offered for sale within the district if the appliance 
emits more than 0 ng/J of NOX. Mid-range and large 
appliances (75,001 BTU/hour-2,000,000 BTU/hour) manufactured after 
January 1, 2031, cannot be sold, installed, or offered for sale within 
the district if the appliance emits more than 0.0 ng/J of 
NOX.\3\ Mobile Home Water Heaters manufactured after January 
1, 2008, cannot emit more than 40 ng/J of NOX. Pools and Spa 
Heaters manufactured after January 1, 2008, cannot emit more than 40 
ng/J of NOX and units manufactured after January 1, 2013, 
cannot emit more than 14 ng/J of NOX. Appliances subject to 
Rule 9-6 must be certified for sale or installation within the 
District. Test methods and procedures are provided for certification 
for compliance demonstration. The EPA's technical support document 
(TSD) has more information about these rules.
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    \3\ Note: the emission limits for different sized appliances are 
different (0 ng/J vs. 0.0 ng/J) due to different rounding 
conventions.
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rules?

    Rules in the SIP must be enforceable (see CAA section 110(a)(2)), 
and must not interfere with applicable requirements concerning 
attainment and reasonable further progress or other CAA requirements 
(see CAA section 110(l)). As discussed above, these rules are not being 
evaluated for RACT or RACM in this rulemaking.
    Guidance and policy documents that we used to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:
    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11, 
1990).
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

B. Do the rules meet the evaluation criteria?

    Rule 9-4 and Rule 9-6 improve the SIP by establishing more 
stringent emission limits. The rules are largely consistent with CAA 
requirements and relevant guidance regarding enforceability and SIP 
revisions. Rule provisions which do not meet the evaluation criteria 
are summarized below and discussed further in the TSD.
    The District has committed to adopt specific enforceable measures 
to remedy the identified deficiencies within one year of the EPA's 
action, and CARB has committed to submit the adopted revisions to the 
EPA within 12 months of the effective date of the EPA's final 
conditional approval. These commitment letters are included in the 
docket for the action, and are described in the TSD.

C. What are the rule deficiencies?

    The EPA is proposing to determine that the following provisions in 
Rule 9-4 and Rule 9-6 do not satisfy the requirements of section 110 of 
the CAA.
    1. Rule 9-4 section 201 contains an outdated reference to ``Section 
4.2.35 of the Code of Federal Regulations (CFR), Title 10, Part 430, 
Subpart B, Appendix N.'' This reference does not exist in the current 
version of the CFR and thus, does not properly define a variable used 
in calculating emissions.
    2. Rule 9-4 section 401 contains an outdated reference to ``Section 
3.1 of the Code of Federal Regulations, Title 10, Part 430, Subpart B, 
Appendix N.'' This reference does not exist in the current version of 
the CFR and as a consequence does not contain any test method language 
to verify compliance.
    3. Rule 9-4 section 402.2 references South Coast Air Quality 
Management District (SCAQMD) Rule 1111 certification methods for 
compliance determination purposes. These certification methods have not 
been submitted for approval into the SIP and Rule 9-4 does not 
reference an EPA approved version of the rule. As a result, the 
certification methods in section 402.2 cannot be utilized to ensure 
enforceability under the CAA.
    4. Rule 9-4 Section 402 does not require emissions test results 
used for certifications to be reported to the Air Pollution Control 
Officer (APCO) when certification takes place through the District. The 
rule also allows for the use of SCAQMD's certification method. 
Although, as discussed in the previous deficiency, that manner in which 
that method is referenced is not approvable, we note that the SCAQMD 
method requires submittal of the test results, in contrast to the 
District-only certification option. As a result, the District's 
certification method does not provide a sufficiently enforceable means 
for determining compliance.
    5. Rule 9-4 Section 601.3 and 601.4 contain references to Method 
ST-5 and Method ST-14 from the Bay Area Manual of Procedures. The 
procedures and test methods have not previously been EPA approved and 
Rule 9-6 does not reference an EPA approved version of the rule.
    6. Rule 9-6 Section 205 contains an outdated reference to ``Section 
6.1.3 of the Code of Federal Regulation, Title 10, Part 430, Subpart B, 
Appendix E.'' However, section 6.1.3 does not exist in the current CFR.
    7. Rule 9-6 Section 402.2 references certification methods from 
SCAQMD Rule 1121 and 1146.2. These methods have not been previously EPA 
approved and lie outside the SIP.

D. The EPA's Recommendations To Further Improve the Rules

    The TSD includes recommendations for the next time BAAQMD amends 
the rules.

[[Page 94635]]

E. Public Comment and Proposed Action

    Section 110(k)(4) of the CAA authorizes the EPA to conditionally 
approve a plan revision based on a commitment by the State to adopt 
specific enforceable measures by a date certain but not later than one 
year after the date of the plan approval. 42 U.S.C. 7410(k)(4). In this 
instance, the enforceable measures that the State must submit are new 
or revised rules that correct the rule deficiencies identified above. 
On October 30, 2024, the State transmitted a commitment letter, dated 
October 2, 2024, from the BAAQMD committing to correct the deficiencies 
identified in this proposed action. The State also submitted a letter, 
dated October 30, 2024, from CARB committing to submit the revised 
rules to the EPA within 12 months of the publication of the final 
conditional approval by the EPA. As authorized in section 110(k)(4) of 
the CAA, the EPA proposes to conditionally approve the submitted rules 
based on the commitment by the state to adopt specific enforceable 
measures by a date certain but not later than one year after the date 
of the plan approval.
    If this proposed conditional approval is finalized as proposed, and 
the BAAQMD or the State fail to comply with this commitment, the 
conditional approval would convert to a disapproval.
    We will accept comments from the public on this proposal until 
December 30, 2024. If we take final action to approve the submitted 
rules, our final action will incorporate these rules into the federally 
enforceable SIP.

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference BAAQMD, Rule 9-4, Nitrogen Oxides from Natural Gas-Fired 
Furnaces, amended on March 15, 2023 and BAAQMD, Rule 9-6, Nitrogen 
Oxides from Natural Gas-Fired Boilers and Water Heaters, adopted March 
15, 2023, as discussed in section I. of this document. The EPA has 
made, and will continue to make, these materials available through 
https://www.regulations.gov and at the EPA Region IX Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely proposes to approve State law 
as meeting Federal requirements and does not impose additional 
requirements beyond those imposed by State law. For that reason, this 
proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it proposes to approve a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of section 12(ds) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rulemaking does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, ``the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.''
    The air agency evaluated EJ considerations as part of its rule 
development process even though the CAA and applicable implementing 
regulations neither prohibit nor require an evaluation. The EPA is 
taking action under the CAA on bases independent of the air agency's 
evaluation of EJ. Due to the nature of the action being taken here, 
this action is expected to have a neutral to positive impact on the air 
quality of the affected area. In addition, there is no information in 
the record upon which this decision is based that is inconsistent with 
the stated goal of Executive Orders 12898 and 14096 of achieving EJ for 
communities with EJ concerns.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements.

    Dated: November 18, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-27518 Filed 11-27-24; 8:45 am]
BILLING CODE 6560-50-P
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