[Federal Register Volume 64, Number 16 (Tuesday, January 26, 1999)]
[Rules and Regulations]
[Pages 3850-3852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1647]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 102-0120; FRL-6220-2a]
Final 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 limited approval and limited disapproval of
revisions to the California State Implementation Plan (SIP) proposed in
the Federal Register on November 6, 1998. This limited approval and
limited disapproval action will incorporate portions of Rules 1, 2 and
4 of Regulation 2--Permits, for the Bay Area Air Quality Management
District (BAAQMD or the ``District'') into the federally approved State
Implementation Plan (SIP).
The intended effect of finalizing this limited approval and limited
disapproval of these rules is to strengthen the federally approved SIP
by incorporating these updated provisions and to satisfy Federal
requirements for an approvable nonattainment area NSR SIP for the
District.
Thus, EPA is finalizing simultaneous limited approval and limited
disapproval as a revision into the California SIP under provisions of
the Act regarding EPA action on SIP submittals, and general rulemaking
authority. While strengthening the SIP, this revision contains
deficiencies which the BAAQMD must address before EPA can grant full
approval under Section 110(k)(3).
DATES: This action is effective on February 25, 1999.
ADDRESSES: Copies of the state submittal and other supporting
information used in developing the final action are available for
public inspection (Docket Number CA102-0120) 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: John Walser, Permits Office [AIR-3],
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1257.
SUPPLEMENTARY INFORMATION:
I. Applicability
The following rules are being approved for limited approval and
limited disapproval into the California SIP: District Regulation 2
Permits, Rule 1 General Requirements, Rule 2 New Source Review, and
Rule 4 Emissions Banking. Rules 2 and 4 were submitted by the
California Air Resources Board on behalf of the District to EPA on
September 28, 1994. Rule 1 was submitted by the California Air
Resources Board on behalf of the District to EPA on December 31, 1990.
II. Background
On November 6, 1998, in 63 FR 59924, EPA proposed limited approval
and limited disapproval for BAAQMD Regulation 2 Permits, Rules 1, 2 and
4. The BAAQMD adopted Rule 1 on November 1, 1989, and Rules 2 and 4 on
June 15, 1994. Submitted Rule 1 was found to be complete on February
28, 1991, and submitted Rules 2 and 4 were found to be complete on
November 22, 1994,1 pursuant to EPA's completeness criteria
that are set forth in 40 CFR Part 51, Appendix V.2 These
rules were proposed for limited approval and limited disapproval. A
detailed discussion of the background for these rules and EPA's
evaluation is provided in the November 6, 1998 Proposed Rulemaking
Notice (NPRM) cited above.
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\1\ The proposed action on November 6, 1998 mistakenly
identified the submittal and completeness date for Rule 1 as the
same date as Rules 2 and 4.
\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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III. Response to Comments
A 30 day public comment period was provided in 63 FR 59924. EPA
received one public comment on the proposal from the California Council
for Environmental and Economic Balance (CCEEB), and is responding to
that comment in this document.
CCEEB commented that EPA should specifically exclude Section 2-4-
304.3 of Regulation 2, Rule 4 from any final SIP approval of all or
portions of Rule 4. Section 2-4-304.3 of Rule 4 states that ``emission
reduction credits may not be used to exempt a source from any other air
pollution control requirements whatsoever of federal, State, or
District laws, rules and regulations.'' CCEEB is concerned that Section
2-4-304.3 addresses State law issues, and is not necessary to meet
Federal Clean Air Act requirements. In addition, CEEB commented that
the California Health and Safety Code Section 39602 provides that the
California SIP ``shall include only those provisions necessary to meet
the requirements of the Clean Air Act.''
Section 2-4-304.3 was not a section of Regulation 2, Rule 4 that
EPA identified as a SIP-approvability issue in 63 FR 59924. As written,
Section 2-4-304.3 of Rule 4 is not inconsistent with federal
requirements or EPA policy and does not present any SIP-approvability
issues. If CCEEB believes the language is inconsistent with state law,
its remedy is at the state and local level. The District, if in
agreement with CCEEB, would need to revise the rule and submit the rule
modification to the California Air Resources Board as a SIP submittal.
EPA does not have the authority to revise the rule language as
requested, or exclude Section 2-4-304.3 from final SIP approval.
IV. EPA Evaluation and Final Action
BAAQMD Regulation 2 clarifies the terms and requirements that apply
to the District's NSR regulation and emissions banking program. BAAQMD
Regulation 2 was originally adopted as part of BAAQMD's effort to
achieve the National Ambient Air Quality Standard (NAAQS) for ozone.
For EPA's detailed evaluation of BAAQMD Regulation 2, Rules 1, 2 and 4,
please refer to the NPRM at 63 FR 59924, November 6, 1998.
EPA has evaluated District Rules 1, 2 and 4 of Regulation 2 and has
determined that the rules contain
[[Page 3851]]
deficiencies and are not fully consistent with CAA requirements, EPA
regulations and EPA policy. Because these rule deficiencies are
inappropriate for inclusion in the SIP, EPA cannot grant full approval
of these rules under section 110(k)(3). Also, because the submitted
rules are 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 is granting final limited
approval of the submitted rules 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 final
approval is limited because EPA's action also contains a simultaneous
limited disapproval. In order to strengthen the SIP, EPA is finalizing
limited approval of BAAQMD's submitted Regulation 2 under sections
110(k)(3) and 301(a) of the CAA.
It should be noted that the rules covered by this final rulemaking
have been adopted by the BAAQMD, subsequently revised, and are
currently in effect in the BAAQMD. EPA's final limited disapproval
action does not prevent the BAAQMD or EPA from enforcing these rules.
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. Docket
Copies of Bay Area's submittal and other information relied upon
for the final actions are contained in docket number CA102-0120
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, EPA in the development of this final rulemaking. The
docket is available for public inspection at the location listed under
the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
C. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, 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, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to 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 any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 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.
D. 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.
E. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly 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, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to 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 officials and 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. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this rule.
F. 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).
G. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
[[Page 3852]]
(``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.
H. 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).
I. 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 29, 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, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: January 4, 1999.
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 paragraphs (c)(182)(i)(B)(6)
and (c)(199)(i)(A)(8) to read as follows:
Sec. 52.220 Identification of Plan.
* * * * *
(c) * * *
(182) * * *
(i) * * *
(B) * * *
(6) Regulation 2, Rule 1 adopted on November 1, 1989.
* * * * *
(199) * * *
(i) * * *
(A) * * *
(8) Regulation 2, Rule 2 and Rule 4 adopted on June 15, 1994.
* * * * *
[FR Doc. 99-1647 Filed 1-25-99; 8:45 am]
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