[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Rules and Regulations]
[Pages 51833-51835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25891]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0102a; FRL-6161-8]


Approval and Promulgation of 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 a revision to the 
California State Implementation Plan. 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 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). 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 general rulemaking 
authority.

DATES: This rule is effective on November 30, 1998 without further 
notice, unless EPA receives adverse comments by October 29, 1998. If 
EPA receives such comment, it will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the 
Region IX office listed below. Copies of the rule revision are 
available for public inspection at EPA's Region IX office during normal 
business hours and 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

[[Page 51834]]

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109

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, Telephone: (415) 744-1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being approved into the California SIP is BAAQMD 
Regulation 1, General Provisions and Definitions. This rule was 
submitted by the California Air Resources Board (CARB) to EPA on June 
23, 1998. A corrected version of BAAQMD Regulation 1, revised only to 
remove a provision that was inadvertently included with the rule, was 
subsequently forwarded by CARB to EPA on September 2, 1998.

II. Background

    On March 3, 1978, EPA promulgated a list of ozone nonattainment 
areas under the provisions of the Clean Air Act, as amended in 1977 
(1977 Act 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 1977 Act, that the 
above district's portion of the California 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, the 
Clean Air Act Amendments of 1990 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 subsequently redesignated 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 July 10, 1998. See 63 FR 37258.
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    On May 27, 1998, EPA proposed limited approval and limited 
disapproval of the version of Regulation 1 adopted by BAAQMD on 
December 19, 1990 and submitted by CARB on May 13, 1991. 63 FR 28958. 
EPA did not propose full approval of Regulation 1 because that version 
contained a public nuisance provision and references to a Manual of 
Procedures that are inappropriate for incorporation into the SIP. EPA 
will not finalize action on this previous submittal of the rule because 
CARB withdrew the May 13, 1991 submittal of BAAQMD Regulation 1 at the 
request of the district on July 20, 1998.
    This document addresses EPA's direct-final action for BAAQMD 
Regulation 1, General Provisions and Definitions. The BAAQMD adopted 
Regulation 1 on November 11, 1993. This submitted rule was found to be 
complete on August 25, 1998 pursuant to EPA's completeness criteria 
that are set forth in 40 CFR part 51, Appendix V 2 and is 
being finalized for approval into the SIP. Regulation 1, as submitted 
by BAAQMD on June 23, 1998, inadvertently contained a provision that 
the district had not intended to submit to the EPA for inclusion in the 
SIP. The State of California removed the provision from Regulation 1 at 
the request of BAAQMD and resubmitted the corrected version to EPA on 
September 2, 1998. It is this corrected version, as submitted to EPA by 
the State of California, that this direct final action incorporates 
into the Federally approved SIP.
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    \2\ 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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    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. This rule was originally adopted as part 
of the district'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 final action for this 
rule.

III. EPA Evaluation and 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''), 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 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. BAAQMD Regulation 1 includes the following 
significant changes from the current 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 Section 236 and 237. The 
deficiencies noted in EPA's May 27, 1998 proposed limited approval and 
limited disapproval have been corrected in this version.
    EPA has evaluated the submitted rule and has determined that it is 
consistent with the CAA, EPA regulations, and EPA policy. Therefore, 
BAAQMD Regulation 1, General Provisions and Definitions is being 
approved under section 110(k)(3) of the CAA as meeting the requirements 
of section 110(a).
    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 
adverse comments be filed. This rule will be effective November 30, 
1998 without further notice unless the Agency receives adverse comments 
by October 29, 1998.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register 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 on this rule. Any 
parties interested in commenting on this rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on November 30, 1998 and no further action will 
be taken on the proposed rule.

[[Page 51835]]

IV. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and 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

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because 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 create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, 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 
annual 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 promulgated does not 
include a Federal mandate that may result in estimated annual 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 
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 Comptroller General

    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 November 30, 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, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, 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: September 4, 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)(256) to read 
as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (256) New and amended regulations for the following APCDs were 
submitted on June 23, 1998, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Bay Area Air Quality Management District.
    (1) Regulation 1, revised on November 3, 1993.
* * * * *
[FR Doc. 98-25891 Filed 9-28-98; 8:45 am]
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