[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42719-42721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21353]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 191-0088a; FRL-6138-6]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Monterey Bay Unified Air Pollution 
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
California State Implementation Plan (SIP). The revision concerns a 
rule from the Monterey Bay Unified Air Pollution Control District 
(MBUAPCD) which controls emissions of oxides of nitrogen 
(NOX) and sulfur compounds. 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 and SO2 in accordance with the requirements 
of the Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is 
finalizing the approval of this revision into the California SIP under 
provisions of the CAA regarding EPA action on SIP submittals, and SIPs 
for national primary and secondary ambient air quality standards.

DATES: This rule is effective on October 13, 1998 without further 
notice, unless EPA receives relevant adverse comments by September 10, 
1998. If EPA receives such comment, then it will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region 
IX office listed below. Copies of the rule revision and EPA's 
evaluation report of the rule are available for public inspection at 
EPA's Region IX office during normal business hours. Copies of the 
submitted rule revisions 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 95812.
Monterey Bay Unified Air Pollution Control District, Rule Development, 
24580 Silver Cloud Ct., Monterey, CA 93940-6536.

FOR FURTHER INFORMATION CONTACT: Stanley Tong, Rulemaking Office (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1191.

SUPPLEMENTARY INFORMATION:

I. Applicability

    This document addresses EPA's direct final action to approve 
Monterey Bay Unified Air Pollution Control District (MBUAPCD) Rule 404, 
Sulfur Compounds and Nitrogen Oxides, into the California SIP. This 
rule was adopted by MBUAPCD on October 16, 1996. It was submitted by 
the California

[[Page 42720]]

Air Resources Board (CARB) to EPA on March 3, 1997.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or 
the Act) were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 
U.S.C. 7401-7671q. 40 CFR part 91.305 provides the attainment status 
designations for air districts in California. MBUAPCD is listed as 
being in attainment for the National Ambient Air Quality Standards 
(NAAQS) for ozone, NO2, and SO2; therefore 
stationary sources in the air district are not subject to the 
Reasonably Available Control Technology (RACT) requirements of section 
182(b)(2).
    On October 16, 1996 MBUAPCD adopted Rule 404, Sulfur Compounds and 
Nitrogen Oxides. On March 3, 1997, the State of California submitted 
this rule to EPA. This submitted rule was found to be complete on 
August 12, 1997 pursuant to EPA's completeness criteria that are set 
forth in 40 CFR Part 51 Appendix V1 and is being finalized 
for approval into the SIP. By today's document, EPA is taking direct 
final action to approve this submittal. This final action will 
incorporate this rule into the Federally approved SIP.
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    \1\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5824) 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. The combustion of fuels containing sulfur 
compounds leads to the production of SO2. MBUAPCD Rule 404 
provides emission limits for oxides of nitrogen and sulfur compounds. 
The following is EPA's evaluation and final action for these rules.

III. EPA Evaluation and Action

    In determining the approvability of a NOX and 
SO2 rule, EPA must evaluate the rule for consistency with 
the requirements of the CAA and EPA regulations, as found in section 
110 and 40 CFR part 51 (Requirements for Preparation, Adoption and 
Submittal of Implementation Plans) respectively. The EPA interpretation 
of these requirements, which forms the basis for this action, appears 
in various EPA policy guidance documents. Among these provisions is the 
requirement that a NOX rule must, at a minimum, provide for 
the implementation of RACT for stationary sources of NOX 
emissions in areas designated as nonattainment for ozone. Since MBUAPCD 
is in attainment for ozone, RACT requirements do not apply.
    While MBUAPCD is in attainment with the NO2, 
SO2 and ozone NAAQS, many of the general SIP regulations 
regarding enforceability, for example, are still appropriate for the 
rule. In determining the approvability of this rule, EPA also evaluated 
it in light of the ``SO2 Guideline Document'', EPA-452/R-94-
008.
    On May 31, 1972 EPA approved into the SIP a version of Rule 404--
paragraphs (b) and (c), Sulfur Content and Oxides of Nitrogen, that had 
been adopted by San Benito APCD and Monterey-Santa Cruz Unified APCD. 
On October 27, 1977 EPA approved into the SIP Rule 404 paragraph (c), 
Sulfur Content and Oxides of Nitrogen that has been adopted by MBUAPCD. 
MBUAPCD submitted Rule 404, Sulfur Content and Oxides of Nitrogen, 
includes the following significant changes from the current SIP:
     Consolidates NOX emission limits under MBUAPCD 
that were previously listed separately for Monterey-Santa Cruz Air 
Pollution Control District (APCD) and San Benito County APCD
     Adds a section on applicability.
     Adds a section on definitions.
     Adds a section on recordkeeping.
     Adds a section on test methods.
     Clarifies, through an exemptions section, that a source 
subject to Best Available Control Technology (BACT) would not be 
subject to the general emission limits contained in Rule 404.
    A more detailed discussion can be found in the Technical Support 
Document (TSD) for Rule 404, dated July 17, 1998.
    EPA has evaluated the submitted rule and has determined that it is 
consistent with the CAA, EPA regulations and EPA policy. Therefore, 
MBUAPCD Rule 404, Sulfur Compounds and Oxides of Nitrogen, is being 
approved under section 110(k)(3) of the CAA as meeting the requirements 
of section 110(a), section 182(f) and the NOX Supplement to 
the General Preamble.
    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.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective October 
13, 1998 without further notice unless the Agency receives relevant 
adverse comments by September 10, 1998.
    If the EPA received such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. 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 rule will be effective on 
October 13, 1998 and no further action will be taken on the proposed 
rule.

IV. 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).

[[Page 42721]]

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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

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 October 13, 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 compound, sulfur oxides.

    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 28, 1998.
Sally Seymour,
Acting 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)(244)(i)(A)(2) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (244) * * *
    (i) * * *
    (A) * * *
    (2) Rule 404, adopted on October 16, 1996.
* * * * *
[FR Doc. 98-21353 Filed 8-10-98; 8:45 am]
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