[Federal Register Volume 63, Number 101 (Wednesday, May 27, 1998)]
[Proposed Rules]
[Pages 28958-28960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13992]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 013-0073; FRL-6102-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
a revision to the California State Implementation Plan (SIP). This 
revision concerns the general provisions and definitions that are 
applicable to all regulations in the Bay Area Air Quality Management 
District.
    The intended effect of proposing a limited approval and limited 
disapproval of this rule is to clarify the general provisions and 
definitions that apply to the regulation of emissions of volatile 
organic compounds (VOCs), oxides of nitrogen (NOX), and 
other pollutants in accordance with the requirements of the Clean Air 
Act, as amended in 1990 (CAA or the Act). EPA's final action on this 
proposed rule will incorporate this rule into the federally approved 
SIP. EPA has evaluated the rule and is proposing a simultaneous limited 
approval and limited disapproval under provisions of the CAA regarding 
EPA action on SIP submittals and general rulemaking authority. While 
strengthening the SIP, this revision contains a public nuisance 
provision and references to a Manual of Procedures that are 
inappropriate for incorporation into the SIP. The limited disapproval 
portion of this proposed rulemaking will exclude elements that are not 
required by the Act.

DATES: Comments must be received on or before June 26, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rule are available for public inspection 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: Yvonne Fong, Rulemaking Office, [AIR-
4], Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for approval into the California SIP is Bay 
Area Air Quality Management District, BAAQMD, Regulation 1, General 
Provisions and Definitions. This rule was submitted by the California 
Air Resources Board to EPA on May 13, 1991.

II. Background

    On March 3, 1978, EPA promulgated a list of ozone nonattainment 
areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-
amended Act), that included the San Francisco Bay Area. 43 FR 8964. On 
May 26, 1988, EPA notified the Governor of California, pursuant to 
section 110(a)(2)(H) of the pre-amended Act, that the Bay Area Air 
Quality Management District's portion of the SIP was inadequate to 
attain and maintain the ozone standard and requested that deficiencies 
in the existing SIP be corrected (EPA's SIP-Call). On November 15, 
1990, amendments to the 1977 CAA were enacted. Pub. L. 101-549, 104 
Stat. 2399, codified at 42 U.S.C. 7401-7671q.
    On November 12, 1993, BAAQMD submitted a request for redesignation 
to attainment of the ozone standard. Subsequently, EPA evaluated and 
approved BAAQMD's request and the San Francisco Bay Area was 
reclassified as an attainment area.\1\ 40 CFR 81.305.
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    \1\ The San Francisco Bay Area was redesignated to attainment. 
See 60 FR 98 (May 22, 1995). The EPA proposed to redesignate the San 
Francisco Bay Area back to nonattainment for ozone based on a number 
of violations of the National Ambient Air Quality Standards (NAAQS) 
on December 19, 1997. See 62 FR 66578.
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    This document addresses EPA's proposed action for BAAQMD Regulation 
1, General Provisions and Definitions. The BAAQMD adopted this

[[Page 28959]]

rule on December 19, 1990. This submitted rule was found to be complete 
on July 10, 1991, pursuant to EPA's completeness criteria that are set 
forth in 40 CFR part 51, appendix V; \2\ and is being proposed for 
limited approval and limited disapproval.
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    \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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    BAAQMD Regulation 1 clarifies the definitions and general 
provisions that apply to the regulation of emissions of VOCs, 
NOX, and other pollutants. These pollutants contribute to 
the production of ground level ozone and smog. BAAQMD Regulation 1 was 
originally adopted as part of BAAQMD's effort to achieve the National 
Ambient Air Quality Standard (NAAQS) for ozone and has been revised in 
response to EPA's SIP-Call. The following is EPA's evaluation and 
proposed action for BAAQMD Regulation 1.

III. EPA Evaluation and Proposed Action

    In determining the approvability of a rule, EPA must evaluate the 
rule for consistency with the requirements of the CAA and EPA 
regulations, as found in section 110 of the CAA and 40 CFR part 51 
(Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans).
    In addition, this rule was evaluated against the SIP enforceability 
guidelines found in ``Issues Relating to VOC Regulation Cutpoints, 
Deficiencies, and Deviations--Clarification to appendix D of November 
24, 1987 Federal Register'' (EPA's `Blue Book') and the EPA Region IX--
California Air Resources Board document entitled ``Guidance Document 
for Correcting VOC Rule Deficiencies'' (April, 1991), and against other 
EPA policies. In general, these guidance documents have been set forth 
to ensure that VOC and other rules are fully enforceable and strengthen 
or maintain the SIP.
    EPA previously approved various portions of BAAQMD Regulation 1, 
General Provisions and Definitions, into the SIP on September 2, 1981, 
July 6, 1982, and November 10, 1982. These portions were originally 
adopted by BAAQMD on September 5, 1979, May 21, 1980, December 17, 
1980, and March 17, 1982. EPA has evaluated BAAQMD Regulation 1, 
submitted May 13, 1991, and compared it to the rule currently 
incorporated in the SIP. BAAQMD's submitted Regulation 1 includes the 
following significant changes from the SIP:
     The scope of the exemption in section 110.5 has been 
narrowed to prohibit the disposal of waste propellants, explosives, or 
pyrotechnics by manufacturing facilities in open outdoor fires, and
     Definitions for volatile organic compound and reduced 
sulfur compounds have been added in sections 236 and 237.
    Although these changes will strengthen the SIP, this rule also 
contains elements that are not appropriate for incorporation into the 
SIP. Regulation 1 includes provisions in sections 600-604, which have 
been approved into the SIP, and section 605, which is a new portion of 
the rule, that reference the BAAQMD's Manual of Procedures (MOP). The 
MOP sets policy and procedures for permitting, CEQA review, sample and 
source testing, emission monitoring, and mobile source emission 
credits. Because the MOP contains policies which are regularly and 
often revised by the BAAQMD and because those policies are not always 
submitted to EPA for approval, the references to the MOP potentially 
provide for director's discretion which may alter the stringency of the 
federally approved SIP. While EPA previously approved some MOP 
references, we should not repeat or aggravate that error by approving 
sections 600-605 at this time.
    Regulation 1, section 301 of the May 13, 1991 submittal contains a 
new provision that has not been previously incorporated into the SIP 
which prohibits sources from discharging quantities of air contaminants 
that cause a nuisance. EPA believes that nuisance provisions are 
inappropriate for inclusion in the SIP because they are not in any way 
required by the Act and do not specifically control criteria air 
pollutants. Nuisance provisions generally deal with complaints relating 
to odor or dust, problems which are appropriate for local air quality 
management district response. For these reasons, EPA believes it is 
inappropriate to incorporate nuisance provisions into the federally 
enforceable SIP. The removal of section 301 of Regulation 1 from the 
BAAQMD SIP submittal will have no effect on BAAQMD's ability to enforce 
its nuisance provision.
    Because the elements described above are inappropriate for 
inclusion in the SIP, 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 1 under sections 110(k)(3) and 301(a) of the CAA.
    It should be noted that the rule covered by this proposed 
rulemaking has been adopted by the BAAQMD and is currently in effect in 
the BAAQMD. EPA's final limited disapproval action will not prevent the 
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.

IV. 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 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, the Administrator certifies 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.

[[Page 28960]]

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 
the 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.

D. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to 
any rule that is (1) likely to be ``economically significant'' as 
defined under Executive Order 12866, and (2) the Agency has reason to 
believe that the environmental health or safety risk addressed by the 
rule may have a disproportionate effect on children. If a 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, ``Protection of Children 
from Environmental Health Risks and Safety Risks'' because this is not 
an ``economically significant'' regulatory action as defined by E.O. 
12866, and because it does not involve decisions on environmental 
health or safety risks that may disproportionately affect children.

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.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 12, 1998.
Sally Seymour,
Acting Regional Administrator, Region IX.
[FR Doc. 98-13992 Filed 5-26-98; 8:45 am]
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