[Federal Register Volume 62, Number 74 (Thursday, April 17, 1997)]
[Rules and Regulations]
[Pages 18710-18712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9946]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0029a; FRL-5697-1]


Approval and Promulgation of State 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 revisions to the 
California State Implementation Plan. The revisions concern rules from 
the Bay Area Air Quality Management District (BAAQMD). This approval 
action will incorporate five rules into the Federally approved SIP. The 
intended effect of approving these rules is to regulate emissions of 
oxides of nitrogen (NO<INF>X) in accordance with the requirements of 
the Clean Air Act, as amended in 1990 (CAA or the Act). The rules 
control NO<INF>X emissions from boilers, steam generators, process 
heaters, stationary internal combustion engines, stationary gas 
turbines, and glass melting furnaces in the San Francisco Bay area. EPA 
has evaluated the rules and is taking direct final action to approve 
them under provisions of the CAA regarding EPA actions on SIP 
submittals, and SIPs for national primary and secondary ambient air 
quality standards. The rules are being approved into the SIP in 
accordance with the area's ozone maintenance plan for redesignation to 
attainment.

DATES: This action is effective on June 16, 1997 unless adverse or 
critical comments are received by May 19, 1997. If the effective date 
is delayed, a timely notice will be published in the Federal Register.

ADDRESSES: Copies of the rules and EPA's evaluation report for each 
rule are available for public inspection at EPA's Region IX office 
during normal business hours. Copies of the submitted rules are 
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 95814.
Bay Area Air Quality Management District, Rule Development Section, 939 
Ellis Street, San Francisco, CA 94109.

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, Telephone: (415) 744-
1185.

SUPPLEMENTARY INFORMATION:

Applicability

    This document addresses EPA's direct final action for the following 
BAAQMD rules: Regulation 9, Rule 7, Nitrogen Oxides and Carbon Monoxide 
from Industrial, Institutional, and Commercial Boilers, Steam 
Generators, and Process Heaters; Regulation 9, Rule 8, Nitrogen Oxides 
and Carbon Monoxide Emissions from Stationary Internal Combustion 
Engines; Regulation 9, Rule 9--Nitrogen Oxides from Stationary Gas 
Turbines; Regulation 9, Rule 11--Nitrogen Oxides and Carbon Monoxide 
from Utility Electric Power Generating Boilers; and Regulation 9, Rule 
12, Nitrogen Oxides from Glass Melting Furnaces.
    These BAAQMD rules were adopted on September 15, 1993, January 20, 
1993, September 21, 1994, November 15, 1995 and January 19, 1994, 
respectively. They were submitted by the State of California on July 
23, 1996. The rules were found to be complete on January 17, 1997, 
pursuant to EPA's completeness criteria that are set forth in 40 CFR 
part 51, Appendix V.<SUP>1 EPA is taking direct final action to approve 
all five rules into the SIP.
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    \1\ 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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Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA) 
were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 
7401-7671q. The air quality planning requirements for the reduction of 
NO<INF>X emissions through reasonably available control technology 
(RACT) are set out in section 182(f) of the CAA. On November 25, 1992, 
EPA published a notice of proposed rulemaking entitled ``State 
Implementation Plans; Nitrogen Oxides Supplement to the General 
Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; 
Proposed Rule,'' (the NO<INF>X Supplement) which describes the 
requirements of section 182(f). The November 25, 1992 document should 
be referred to for further information on the NO<INF>X requirements and 
is incorporated into this document by reference. Section 182(f) of the 
Clean Air Act requires States to apply the same requirements to major 
stationary sources of NO<INF>X (``major'' as defined in section 302 and 
section 182 (c), (d), and (e)) as are applied to major stationary 
sources of volatile organic compounds (VOCs), in moderate or above 
ozone nonattainment areas.<SUP>2
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    \2\ The San Francisco Bay Area was designated as a moderate 
nonattainment area for ozone, and classified by operation of law 
pursuant to sections 107(d) and 181(a) upon the date of enactment of 
the CAA. See 56 FR 56694 (November 6, 1991).

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[[Page 18711]]

    Section 182(b)(2) requires submittal of RACT rules for major 
stationary sources of VOC emissions (not covered by a pre-enactment 
control technique guidelines (CTG) document or a post-enactment CTG 
document) by November 15, 1992. There were no NO<INF>X CTGs issued 
before enactment and EPA has not issued a CTG document for any NO<INF>X 
category since enactment of the CAA. The RACT rules covering NO<INF>X 
sources and submitted as SIP revisions are expected to require final 
installation of the actual NO<INF>X controls by May 31, 1995 for those 
sources where installation by that date is practicable.
    NO<INF>X emissions contribute to the production of ground level 
ozone and smog. The five BAAQMD rules control emissions of NO<INF>X 
from commercial and industrial boilers, steam generators, and process 
heaters; stationary internal combustion engines; stationary gas 
turbines; electric power generating boilers; and glass melting 
furnaces. The rules were adopted as part of the BAAQMD's efforts to 
achieve the National Ambient Air Quality Standard for ozone, as well as 
to satisfy the mandates of the California State Clean Air Act 
requirements. They were submitted in response to the CAA requirements 
cited above.
    However, subsequent to the complete submittal of the BAAQMD 
NO<INF>X rules pursuant to the CAA, the district applied for an 
exemption from the NO<INF>X RACT requirements pursuant to section 
182(f)(3). The BAAQMD's exemption request was submitted along with 
amendments to the BAAQMD's request for redesignation to attainment of 
the ozone standard. The basis for the BAAQMD's exemption request was 
that the area had achieved the ozone standard, as demonstrated by three 
years of monitoring data, without having implemented the NO<INF>X 
measures. While the BAAQMD had adopted and submitted the measures in 
response to both the State and Federal requirements, the emission 
reductions obtained by the rules would not occur until full 
implementation in the future. The district was able to demonstrate with 
three years of monitoring data that the Federal ozone standard was 
reached without having implemented the NO<INF>X control measures. 
Subsequently, EPA evaluated the exemption request and published an 
approval for the BAAQMD's petition for a NO<INF>X RACT exemption on May 
22, 1995 (60 FR 27028).
    While the BAAQMD was no longer required to submit NO<INF>X RACT 
rules pursuant to section 182(b)(2), the BAAQMD incorporated several of 
the previously submitted NO<INF>X rules as contingency measures in its 
ozone maintenance plan as a requirement for redesignation to 
attainment. Since being redesignated to attainment of the ozone 
standard,<SUP>3 the Bay Area has recorded violations of the Federal 
ozone standard, therefore triggering the contingency measures of the 
maintenance plan. In accordance with the redesignation maintenance 
plan, and at the request of the BAAQMD, EPA is incorporating the 
NO<INF>X measures into the SIP. The BAAQMD resubmitted the contingency 
measures being acted on in this document on July 23, 1996. This action 
encompasses part of the measures identified in the plan as contingency 
measures.
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    \3\ See 60 FR 27028 (May 22, 1995).
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EPA Evaluation and Action

    In determining the approvability of a NO<INF>X rule, EPA must 
evaluate the rule for consistency with the requirements of the CAA and 
EPA regulations, as found in section 110, and part D of the CAA and 40 
CFR part 51 (Requirements for Preparation, Adoption and Submittal of 
Implementation Plans). The EPA interpretation of these requirements, 
which forms the basis for this action, appears in the NO<INF>X 
Supplement and various EPA policy guidance documents.<SUP>4 Among these 
provisions is the requirement that a NO<INF>X rule must, at a minimum, 
provide for the implementation of RACT for stationary sources of 
NO<INF>X emissions. However, because these measures are being 
incorporated into the SIP as maintenance measures for the area's 
redesignation plan, the rules are not being evaluated for meeting the 
RACT emission limits pursuant to section 182(f) of the CAA. Rather, the 
rules are being incorporated into the SIP as attainment maintenance 
measures for ozone. They are therefore being evaluated against the 
emissions reductions committed to in the maintenance plan, and SIP 
enforceability guidelines.
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    \4\ Among other things, the pre-amendment guidance consists of 
those portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044 (November 24, 1987); and 
``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations, Clarification to Appendix D of November 24, 1987 Federal 
Register Notice'' (Blue Book) (notice of availability was published 
in the Federal Register on May 25, 1988).
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    EPA is approving these measures, although some areas for 
improvement have been identified. Refer to the technical support 
document, dated January 24, 1997, for further analysis of the rules and 
areas identified for improvement. The BAAQMD rules will strengthen and 
maintain the SIP and together are estimated to achieve 32.4-34 tons per 
day of NO<INF>X emissions upon full implementation. EPA has evaluated 
the submitted rules and has determined that they are consistent with 
the CAA, EPA regulations and EPA policy. Therefore, all five rules are 
being approved under section 110(k)(3) of the CAA as meeting the 
applicable requirements of section 110(a) and part D.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future 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 document without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective June 16, 1997, unless, by May 19, 1997, adverse or critical 
comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. 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 action will be effective June 16, 1997.

Regulatory Process

Unfunded Mandates

    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector or to 
State, local, or tribal governments in the aggregate.
    Through submission of this State implementation plan revision, the 
State and any affected local or tribal governments have elected to 
adopt the program provided for under part D of the Clean Air Act. These 
rules may bind State, local, and tribal governments to

[[Page 18712]]

perform certain actions and also require the private sector to perform 
certain duties. The rules being approved by this action will impose no 
new requirements because affected sources are already subject to these 
regulations under State law. Therefore, no additional costs to State, 
local, or tribal governments or to the private sector result from this 
action. EPA has also determined that this direct final action does not 
include a mandate that may result in estimated costs of $100 million or 
more to State, local, or tribal governments in the aggregate or to the 
private sector.

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 economic 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 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 impose any new requirements, I certify that it does 
not have a significant impact on affected small entities. Moreover, due 
to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. section 7410(a)(2).

Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2225), as revised by a July 
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air 
and Radiation. The Office of Management and Budget has exempted this 
regulatory action from review under Executive Order 12866.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
nitrogen, Ozone, Reporting and recordkeeping requirements, 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: February 6, 1997.
Felicia Marcus,
Regional Administrator.

    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. 7401-7671q

Subpart F--California

    2. Section 52.220 is amended by adding paragraph (c)(239)(i)(D) to 
read as follows:


Sec. 52.220  Identification of Plan.

* * * * *
    (c) * * *
    (239) * * *
    (i) * * *
    (D) Bay Area Air Quality Management District.
    (1) Regulation 9, Rule 7, adopted on September 15, 1993; Regulation 
9, Rule 8, adopted on January 20, 1993; Regulation 9, Rule 9, adopted 
on September 21, 1994; Regulation 9, Rule 11, adopted on November 15, 
1995; Regulation 9, Rule 12, adopted on January 19, 1994.
* * * * *
[FR Doc. 97-9946 Filed 4-16-97; 8:45 am]
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