[Federal Register Volume 62, Number 142 (Thursday, July 24, 1997)]
[Proposed Rules]
[Pages 39795-39796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19549]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0033; FRL-5863-3]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Bay Area Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the California State Implementation Plan (SIP) for ozone. 
These revisions concern the control of oxides of nitrogen 
(NOX) and carbon monoxide from boilers, steam generators, 
and process heaters in petroleum refineries in the San Francisco Bay 
Area. The intended effect of proposing limited approval and limited 
disapproval of this rule is to regulate emissions of NOX in 
accordance with the requirements of the Clean Air Act, as amended in 
1990 (CAA or the Act). EPA's final action on this notice of proposed 
rulemaking will incorporate this rule into the Federally approved SIP. 
EPA has evaluated this rule and is proposing a simultaneous limited 
approval and limited disapproval under provisions of the CAA regarding 
EPA actions on SIP submittals and general rulemaking authority because 
these revisions, while strengthening the SIP, also do not fully meet 
the CAA provisions regarding plan submissions and SIP enforceability 
guidelines. This rule is being incorporated into the SIP in accordance 
with the requirements for contingency measures contained in the area's 
ozone maintenance plan.

DATES: Comments on this proposed action must be received in writing on 
or before August 25, 1997.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking 
Section (AIR-4), Air Division, U.S. Environmental Protection Agency, 
Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rule and EPA's evaluation report of this rule are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule are also available for 
inspection at the following locations:
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: Lily Wong, Rulemaking Office (AIR-4), 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1190.

SUPPLEMENTARY INFORMATION:

Background

    This document addresses EPA's proposed action for Bay Area Air 
Quality Management District (BAAQMD) Regulation 9, Rule 10, Nitrogen 
Oxides and Carbon Monoxide from Boilers, Steam Generators, and Process 
Heaters in Petroleum Refineries. BAAQMD adopted Regulation 9, Rule 10 
on January 5, 1994. The State of California originally submitted the 
rule being acted on in this document on May 24, 1994. Regulation 9, 
Rule 10 was found to be complete on July 14, 1994 pursuant to EPA's 
completeness criteria that are set forth in 40 CFR part 51, appendix 
V1.
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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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    NOX emissions contribute to the production of ground 
level ozone and smog. BAAQMD Regulation 9, Rule 10, controls emissions 
of NOX from boilers, steam generators, and process heaters 
in petroleum refineries. The rule was adopted as part of BAAQMD's 
efforts to achieve the National Ambient Air Quality Standards (NAAQS) 
for ozone, as well as to satisfy the mandates of the California State 
Clean Air Act requirements. The rule was originally submitted in 
response to the CAA requirements for the reduction of NOX 
emissions through reasonably available control technology (RACT) 
contained in section 182.
    However, prior to the complete submittal of the BAAQMD 
NOX rules pursuant to the CAA, the district applied for an 
exemption from the NOX 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 NOX 
measures. While the BAAQMD had adopted 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 NOX control measures. Subsequently, EPA evaluated the 
exemption request and published an approval for the BAAQMD's petition 
for a NOX RACT exemption on May 22, 1995 (60 FR 27028).
    While the BAAQMD was no longer required to submit NOX 
RACT rules pursuant to section 182(b)(2), the BAAQMD incorporated 
several of the previously submitted NOX 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, 2 the Bay Area has recorded violations 
of the Federal ozone

[[Page 39796]]

standard, thereby 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 
NOX 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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    \2\  See 60 FR 27028 (May 22, 1995).
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EPA Evaluation and Proposed Action

    Because BAAQMD Regulation 9, Rule 10 is being incorporated into the 
SIP as part of the maintenance measures for the area's redesignation 
plan, the rule is not being evaluated for meeting the RACT emission 
limits pursuant to section 182(f) of the CAA. Rather, the rule is being 
incorporated into the SIP as an attainment maintenance measure for 
ozone. It is therefore being evaluated against the emissions reductions 
committed to in the maintenance plan, and SIP enforceability 
guidelines.
    BAAQMD Regulation 9, Rule 10 controls emissions of nitrogen oxides 
and carbon monoxide from boilers, steam generators, and process heaters 
in petroleum refineries with rated capacities greater than or equal to 
1 million Btu per hour heat input. The rule requires sources (excluding 
carbon monoxide boilers) to meet a facility-wide emission rate of 0.20 
pounds NOX per million Btu heat input limit, and carbon 
monoxide boilers to meet 300 parts per million by volume (ppmv) of 
NOX. The rule requires compliance by May 31, 1995.
    Although Regulation 9, Rule 10 will strengthen the SIP, this rule 
still contains deficiencies related primarily to the lack of 
enforceability. This rule does not specify any test method for 
determination of compliance with the NOX emission limit, and 
it does not require recordkeeping to demonstrate compliance with the 
emission rate. A more detailed discussion of the sources controlled, 
the controls required, and rule deficiencies can be found in the 
Technical Support Document (TSD), dated May 30, 1997.
    Because of the above deficiencies, EPA cannot grant full approval 
of this rule under section 110(k)(3). Also, because the submitted rule 
is 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 may grant a limited approval of 
the submitted rule 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 approval is limited because 
EPA's action also contains a simultaneous limited disapproval. In order 
to strengthen the SIP, EPA is proposing a limited approval of BAAQMD's 
submitted Regulation 9, Rule 10 under sections 110(k)(3) and 301(a) of 
the CAA as meeting the requirements of section (110)(a). At the same 
time, EPA is also proposing a limited disapproval of this rule because 
it contains deficiencies which must be corrected in order to meet the 
requirement for enforceability under section 110(a). If the 
Administrator disapproves a submission under section 110(k) for an area 
designated attainment, based on the submission's failure to meet one or 
more of the elements required by the Act, the Administrator may, at her 
discretion, apply one of the sanctions set forth in section 179(b), 
pursuant to section 110(m). Moreover, the final disapproval triggers 
the Federal implementation plan (FIP) requirement under section 110(c). 
It should be noted that the rule covered by this document has been 
adopted by the BAAQMD and is currently in effect in the BAAQMD. EPA's 
final limited disapproval action will not prevent BAAQMD or EPA from 
enforcing this rule.
    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.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. 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 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 sections 110 and 301, 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 any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, 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 action 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 
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 proposed does not 
include a Federal mandate that may result in estimated 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 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Oxides of nitrogen, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: July 10, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-19549 Filed 7-23-97; 8:45 am]
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