[Federal Register Volume 63, Number 251 (Thursday, December 31, 1998)]
[Rules and Regulations]
[Pages 72195-72197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34552]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 207-0108a; FRL-6203-7]


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 
Monterey Bay Unified Air Pollution Control District's (MBUAPCD) Rule 
431. This rule controls emissions of oxides of nitrogen 
(NOx) and carbon monoxide (CO) from electric power boilers. 
This action will incorporate the rule into the Federally approved SIP. 
The intended effect of approving this rule is to regulate emissions of 
NOx and CO in accordance with the requirements of the Clean 
Air Act, as amended in 1990 (CAA or the Act). 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 direct final rule is effective on March 1, 1999 without 
further notice, unless EPA receives adverse comments by February 1, 
1999. If EPA received such comments, then 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 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 
revisions are also 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.
Monterey Bay Unified Air Pollution Control District, Rule Development, 
24580 Silver Cloud Ct., Monterey, CA 93940-6536.

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, 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

    The rule being approved into the California SIP includes MBUAPCD's 
Rule 431, Emissions from Electric Power Boilers. This rule was 
submitted by the California Air Resources Board (CARB) to EPA on March 
10, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or 
the Act) were enacted. Public Law 101-549, 104 Stat. 2399, codified at 
42 U.S.C. 7401-7671q. 40 CFR 81.305 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 CO; therefore stationary sources 
in the air district are not subject to the Reasonably Available Control 
Technology (RACT) requirements of section 182(b)(2).
    On March 10, 1998, the State of California submitted to EPA 
MBUAPCD's Rule 431, Emissions from Electric Power Boilers which was 
amended by MBUAPCD on December 17, 1997. This submitted rule was found 
to be complete on May 21, 1998 pursuant to EPA's completeness criteria 
that are set forth in 40 CFR Part 51

[[Page 72196]]

Appendix V 1 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. MBUAPCD's Rule 431 controls emissions 
NOX and CO from electric power boilers. The rule was adopted 
as part of MBUAPCD's effort to maintain attainment of the National 
Ambient Air Quality Standards (NAAQS) for ozone and CO. The following 
is EPA's evaluation and final action for this rule.

III. EPA Evaluation and Action

    In determining the approvability of a NOX and CO 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, CO, and 
ozone NAAQS, the emission limits and enforceability elements such as 
applicability, test methods, recordkeeping, and compliance 
determinations are still appropriate as part of the MBUAPCD's ozone 
attainment plan. Rule 431 is amended from the previous SIP approved 
rule to: (1) change the applicability from utility owner to non-utility 
owner; (2) delete provisions that no longer apply (i.e., for old units 
removed from service); and (3) incorporate acid rain program 
requirements for continuous emission monitoring system (CEMs). A more 
detailed discussion can be found in the Technical Support Document 
(TSD) for Rule 431, dated October 27, 1998.
    EPA has evaluated the submitted rule and has determined that it is 
consistent with the CAA, EPA regulations and EPA policy. Therefore, 
MBUAPCD's Rule 431, Emissions from Electric Power Boilers, 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. 
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 March 
1, 1999 without further notice unless the Agency receives adverse 
comments by February 1, 1999.
    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 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 March 1, 1999 and no further action will be taken on the 
proposed rule.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the 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 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and

[[Page 72197]]

other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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 
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 
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 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).

F. 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 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.

G. 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).

H. 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 March 1, 1999. 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.

    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: December 4, 1998.
Laura Yoshii,
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)(254)(i)(G)(1) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (254) * * *
    (i) * * *
    (G) Monterey Bay Unified Air Pollution Control District.
    (1) Rule 431, adopted on December 17, 1997.
* * * * *
[FR Doc. 98-34552 Filed 12-30-98; 8:45 am]
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