[Federal Register Volume 63, Number 147 (Friday, July 31, 1998)]
[Rules and Regulations]
[Pages 40828-40829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20510]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0061; FRL-6131-4]


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 the approval of a revision to the California 
State Implementation Plan (SIP) proposed in the Federal Register on 
April 17, 1997. The revision concerns a rule from the Bay Area Air 
Quality Management District (BAAQMD). This approval action will 
incorporate this rule into the Federally approved SIP. The intended 
effect of approving this rule is to regulate emissions of oxides of 
nitrogen (NOX) in accordance with the requirements of the 
Clean Air Act, as amended in 1990 (CAA or the Act). The rule concerns 
the control of NOX emissions from utility electric power 
generating boilers in the San Francisco Bay area. Thus, EPA is 
finalizing the approval of this revision into the California SIP under 
provisions of the CAA regarding EPA actions on SIP submittals, and SIPs 
for national primary and secondary ambient air quality standards. The 
rule is being approved into the SIP in accordance with the area's ozone 
maintenance plan.

DATES: This action is effective on August 31, 1998.

ADDRESSES: Copies of the rule and EPA's evaluation report are available 
for public inspection at EPA's Region IX office during normal business 
hours. Copies of the submitted rule 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 95812.
Bay Area Air Quality Management District, Rule Development Section, 939 
Ellis Street, San Francisco, CA 94109.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 
744-1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The BAAQMD rule being approved into the California SIP is 
Regulation 9, Rule 11, Nitrogen Oxides and Carbon Monoxide from Utility 
Electric Power Generating Boilers. This BAAQMD rule was adopted on 
February 16, 1994 and amended November 15, 1995. A revision of the 
amended rule, containing the Reasonably Available Control Technology 
(RACT) NOX provisions required under the Act but omitting 
state-mandated NOX emission limits, was submitted to EPA by 
the State of California on July 23, 1996. The rule was 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.1 A 
subsequent version revised only to correct typographical errors was 
submitted on February 20, 1998. EPA is taking final action to approve 
the rule 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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II. Background

    On April 17, 1997, EPA proposed to approve Regulation 9, Rule 11 
into the California SIP (62 FR 18730). While the BAAQMD was no longer 
required to submit NOX RACT rules pursuant to section 
182(b)(2), the BAAQMD incorporated several previously submitted 
NOX rules as contingency measures in its ozone maintenance 
plan as a requirement for redesignation to attainment. Shortly after 
being redesignated to attainment of the ozone standard, the Bay Area 
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 NOX measures into the SIP. The 
BAAQMD submitted the contingency measure being acted on in this 
document on July 23, 1996. This action encompasses part of the measures 
identified in the plan as contingency measures. A detailed discussion 
of the background for BAAQMD Regulation 9, Rule 11 (as submitted on 
July 23, 1996) is provided in the proposed rule cited above.
    EPA has evaluated BAAQMD Regulation 9, Rule 11 for consistency with 
the requirements of the CAA and EPA regulations and EPA interpretation 
of these requirements as expressed in the various EPA policy guidance 
documents referenced in the proposed rule cited above. EPA has found 
that the BAAQMD submitted rule meets the applicable EPA requirements. A 
detailed discussion of the BAAQMD rule provisions and EPA's evaluation 
has been provided in the proposed rule and in the technical support 
document (TSD), dated January 24, 1997, which is available at EPA's 
Region IX office.

III. Response to Public Comments

    A 30-day public comment period was provided in 62 FR 18730. The 
rule in the present action, along with four additional rules (BAAQMD 
Regulation 9, Rule 7; Regulation 9, Rule 8; Regulation 9, Rule 9; and 
Regulation 9, Rule 12) were the subject of a prior direct final action. 
See 62 FR 18710 (April 17, 1997). EPA received adverse comments on 
Regulation 9, Rule 11 only. Consequently the previous direct final 
action was withdrawn. See 62 FR 32687 (June 17, 1997). Following is 
EPA's response to comments received on Regulation 9, Rule 11 from 
Pacific Gas and Electric Company (PG&E), a public utility that owns and 
operates sources affected by Regulation 9, Rule 11. PG&E objected to 
the presence in BAAQMD Regulation 9, Rule 11 of provisions that relate 
to carbon monoxide and ammonia emissions on the grounds that these 
substances are not ozone precursors. However, the BAAQMD submitted the 
carbon monoxide and ammonia provisions for inclusion into the SIP and 
there is no basis for EPA to disapprove them.
    PG&E also objected to the inclusion in BAAQMD Regulation 9, Rule 11 
of references to those portions of the rule which contain state-
mandated NOX emissions limits and were therefore not 
included in the rule as submitted to EPA on July 23, 1996. In response 
to this comment, the State of California removed these typographical 
errors from

[[Page 40829]]

BAAQMD Regulation 9, Rule 11 and resubmitted the corrected version to 
EPA on February 20, 1998. It is this corrected version, as submitted to 
EPA by the State of California, that this approval action incorporates 
into the Federally approved SIP.

IV. EPA Action

    EPA is finalizing this action to approve the above rule for 
inclusion into the California SIP. EPA is approving the submittal under 
section 110(k)(3) as meeting the requirements of section 110(a) and 
part D of the CAA. This approval action will incorporate this rule into 
the Federally approved SIP. The intended effect of approving this rule 
is to regulate emissions of NOX in accordance with the 
requirements of the CAA.
    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.

V. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks,'' because 
it is not an ``economically significant'' action under E.O. 12866.

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 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 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 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).

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 promulgated 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. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended 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 section 804(2) of the 
APA as amended.

E. 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 September 29, 1998. 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, 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: July 13, 1998.
Felicia Marcus,
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 paragraph (c)(239)(i)(E)(4) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (239) * * *
    (i) * * *
    (E) * * *
    (4) Rule 9-11 amended November 15, 1995.
* * * * *
[FR Doc. 98-20510 Filed 7-30-98; 8:45 am]
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