[Federal Register Volume 64, Number 52 (Thursday, March 18, 1999)]
[Proposed Rules]
[Pages 13379-13382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6507]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 011-0134 FRL-6309-7]


Approval and Promulgation of State Implementation Plans; 
California State Implementation Plan Revision, South Coast Air Quality 
Management District, San Joaquin Valley Unified Air Pollution Control 
District, Siskiyou County Air Pollution Control District, and Bay Area 
Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval of revisions to the 
California State Implementation Plan (SIP) which concerns the control 
of the sulfur content of fuels within the South Coast Air Quality 
Management District and the Siskiyou County Air Pollution Control 
District, emissions of sulfuric acid mist within the San Joaquin Valley 
Unified Air Pollution Control District and emissions of sulfur dioxide 
within the Bay Area Air Quality Management District.
    The intended effect of proposing a limited approval of these rules 
is to regulate emissions of sulfur dioxide (SO2) in 
accordance with the requirements of the Clean Air Act, as amended in 
1990 (CAA or ``Act''). EPA's final action on this proposed rulemaking 
will incorporate these rules into the federally approved SIP. EPA has 
evaluated the rules and is proposing a limited approval under 
provisions of the CAA regarding EPA action on SIP submittals and 
general rulemaking authority because these revisions, while 
strengthening the SIP, also do not fully meet the CAA provisions 
regarding plan submissions.

DATES: Comments must be received on or before April 19, 1999.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rules and EPA's evaluation reports of the rules are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rules are also available for 
inspection at the following locations:

Environmental Protection Agency, Air Docket, 401 ``M'' Street, SW., 
Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109-7714.
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg Ave., Fresno, CA 93726.
Siskiyou County Air Pollution Control District, 525 South Foothill Dr., 
Yreka, CA 96097
South Coast Air Quality Management District, 21865 E. Copley Dr., 
Diamond Bar, CA 91765-4182.

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

    The rules being proposed for approval into the California SIP 
include South Coast Air Quality Management District (SCAQMD) Rule 
431.2, Sulfur Content of Liquid Fuels, San Joaquin Valley Unified Air 
Pollution Control District (SJVUAPCD) Rule 4802, Sulfuric Acid Mist, 
Siskiyou County Air Pollution Control District (SCAPCD) Rule 4.14, 
Sulfur Content of Fuels and Bay Area Air Quality Management District 
(BAAQMD) Regulation 9 Rule 1, Sulfur Dioxide. SCAQMD Rule 431.2 and 
SCAPCD Rule 4.14 were submitted by the California Air Resources Board 
(CARB) to EPA on December 31, 1990, BAAQMD Regulation 9 Rule 1 was 
submitted by CARB to EPA on September 14, 1992, and SJVUAPCD Rule 4802 
was submitted by CARB to EPA on November 18, 1993.

II. Background

    40 CFR 81.305 provides the attainment status designations for air 
districts in California. South Coast Air Quality Management District 
1, San Joaquin Valley Unified Air Pollution Control 
District, Siskiyou County Air Pollution Control District and Bay Area 
Air Quality Management District are listed as being in attainment for 
the national ambient air quality standards (NAAQS) for sulfur dioxide 
(SO2). Therefore, for purposes of controlling 
SO2, these rules need only comply with the general 
provisions of Section 110 of the Act.
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    \1\ This Federal Register action for the South Coast Air Quality 
Management District excludes the Los Angeles County portion of the 
Southeast Desert AQMA, otherwise known as the Antelope Valley Region 
in Los Angeles County, which is now under the jurisdiction of the 
Antelope Valley Air Pollution Control District as of July 1, 1997.
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    Sulfur dioxide is formed by the combustion of fuels containing 
sulfur compounds. SCAQMD adopted Rule 431.2, Sulfur Content of Liquid 
Fuels, on May 4, 1990. SCAPCD adopted Rule 4.14, Sulfur Content of 
Fuels, on July 11, 1989. On December 31, 1990 the State of California 
submitted many rules for incorporation into its SIP, including SCAQMD 
Rule 431.2 and SCAPCD Rule 4.14. These rules were found to be complete 
on February 28, 1991 pursuant to EPA's completeness criteria that are 
set forth in 40 CFR Part 51, Appendix V 2 and are being 
proposed for limited approval.
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    \2\ EPA adopted 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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    SJVUAPCD adopted Rule 4802, Sulfuric Acid Mist, on December 17, 
1992. On November 18, 1993 the State of California submitted many rules 
for incorporation into its SIP, including SJVUAPCD Rule 4802. This rule 
was found to be complete on December 27, 1993 pursuant to EPA's 
completeness criteria and is being proposed for limited approval.
    BAAQMD adopted Regulation 9 Rule 1, Sulfur Dioxide, on May 20, 
1992. On September 14, 1992 the State of California submitted many 
rules for incorporation into its SIP, including BAAQMD Regulation 9 
Rule 1. This rule was found to be complete on November

[[Page 13380]]

20, 1992 pursuant to EPA's completeness criteria and is being proposed 
for limited approval.
    The following is EPA's evaluation and proposed action for these 
rules.

III. EPA Evaluation and Proposed Action

    In determining the approvability of an 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).
    While the SCAQMD, SCAPCD, SJVUAPCD and BAAQMD are in attainment 
with the SO2 NAAQS, many of the general SIP requirements 
regarding enforceability, for example, are still appropriate for these 
rules. In determining the approvability of these rules, EPA evaluated 
them in light of the ``SO2 Guideline Document'', EPA-452/R-
94-008.
    On September 28, 1981, EPA approved into the SIP a version of Rule 
431.2 , Sulfur Content of Liquid Fuels, that had been adopted by the 
SCAQMD on February 2, 1979. Revisions to this rule were subsequently 
adopted, and then were superseded by the submitted version. In 
evaluating the submitted version, EPA reviewed materials associated 
with the SIP approved rule and the submitted version. SCAQMD submitted 
an amendment to Rule 431.2 on December 31, 1990 which includes the 
following significant changes from the current SIP rule:
     Sets a uniform limit of 0.05 percent by weight for the 
sulfur content in liquid fuels that are burned, purchased, sold or 
offered for sale to be burned.
     Requires stationary internal combustion engines operating 
on diesel or distillate fuel to use CARB compliant diesel fuel on and 
after October 1, 1993.
     Requires a person selling the fuel to provide the customer 
or user with specifications for the sulfur content of the fuel.
     Requires a monthly report be submitted to the SCAQMD 
documenting the liquid fuel consumption and applicable sulfur content 
used in refineries and power plants.
     Requires an annual report be submitted documenting the 
liquid fuel consumption and applicable sulfur content for all other 
commercial and industrial facilities with permitted combustion 
equipment.
     Adds sections for recordkeeping, definitions and test 
methods.
    EPA has evaluated SCAQMD's submitted Rule 431.2 for consistency 
with the CAA, EPA regulations, and EPA policy and has found that the 
revisions result in a clearer, more enforceable rule. Although SCAQMD's 
Rule 431.2 will strengthen the SIP, this rule contains the following 
deficiency which should be corrected.
     The rule allows Executive Officer discretion in approving 
alternate test methods to determine compliance with the sulfur limits 
of the rule. EPA also recommends the following improvements to the 
rule.
     A reference to a CARB specification for motor vehicle 
diesel fuel (Title 13, Section 2256), should be updated to reflect 
renumbering of the section which occurred in the year following the 
amendment of Rule 431.2
     The period of record retention specified should be 
consistent with the federal record retention requirement of 5 years.
    A detailed discussion of the rule deficiency and recommendations 
for rule improvement can be found in the Technical Support Document for 
Rule 431.2 (2/12/99), which is available from the U.S. EPA, Region IX 
office.
    There is currently no version of SJVUAPCD Rule 4802, Sulfuric Acid 
Mist, in the SIP. The submitted rule includes the following provisions:
     Limits the amount of effluent process gas that can be 
discharged into the atmosphere from sulfuric acid production units 
constructed or modified before August 17, 1971 to 0.30 pounds per short 
ton of acid produced, the production being expressed as 100 percent 
sulfuric acid.
     Prohibits any owner or operator of an existing sulfuric 
acid production unit that emits less than the allowable limit from 
allowing an increase of emissions beyond the level being emitted as of 
December 17, 1992. Such owners or operators must also utilize all acid 
mist emissions control equipment to reduce acid mist emissions to 
lowest possible levels.
     Establishes Method 8 of 40 CFR 60 Appendix A as the test 
procedure to be used to determine sulfuric acid mist emissions.
    EPA has evaluated SJVUAPCD's submitted Rule 4802 for consistency 
with the CAA, EPA regulations, and EPA policy. Although SJVUAPCD's Rule 
4802 will strengthen the SIP, this rule contains the following 
deficiency which should be corrected.
     The rule lacks recordkeeping requirements to confirm 
source compliance with sections 4.1 and 4.2 of the rule.
    EPA also recommends the following improvements to the rule.
     The period of record retention specified should be 
consistent with the federal record retention requirement of 5 years.
     A typographical error in Section 4.2 should be corrected 
so that the requirement reads: ``The owner or operator of an existing 
sulfuric acid production unit which emits acid mist. * * *.''
    There is currently no version of SCAPCD Rule 4.14, Sulfur Content 
of Fuels, in the SIP. The submitted rule supersedes an earlier 
submittal of Rule 4.14, adopted on January 24, 1989 and submitted to 
EPA on March 26, 1990. The submitted rule being acted on in this 
document includes the following provisions:
     Prohibits the burning of any liquid fuel or solid fuel 
having a sulfur content in excess of 0.5 percent by weight.
     Exempts sources from the above limit which obtain written 
approval from the Control Officer and remove sulfur compounds from 
combustion products or use a mixture of fuels to the extent that sulfur 
compound emissions are no greater than that which would be emitted 
using a liquid or solid fuel complying with the 0.5 percent by weight 
limit.
    EPA has evaluated SCAPCD's submitted Rule 4.14 for consistency with 
the CAA, EPA regulations, and EPA policy. Although SCAPCD's Rule 4.14 
will strengthen the SIP, this rule contains the following deficiencies 
which should be corrected.
     The rule lacks recordkeeping requirements to confirm 
source compliance with sections A. and B. of the rule.
     The rule lacks test methods to determine source compliance 
with sections A. and B. of the rule.
    EPA also recommends the following improvement to the rule.
     The period of record retention specified should be 
consistent with the federal record retention requirement of 5 years.
    On May 3, 1984, EPA approved into the SIP a version of BAAQMD 
Regulation 9 Rule 1, Sulfur Dioxide, that had been adopted by the 
BAAQMD on February 16, 1983. Revisions to this rule were subsequently 
adopted, and then were superseded by the submitted version. In 
evaluating the submitted version, EPA reviewed materials associated 
with the SIP approved rule and the submitted version. BAAQMD submitted 
an amendment to Regulation 9 Rule 1 on September 14, 1992 which 
includes the following significant changes from the current SIP rule:
     Deletes obsolete phased-in compliance dates for sulfur 
recovery plants at local refineries.

[[Page 13381]]

     Deletes duplicative standards and definitions for sulfur 
recovery plants.
     Cuts in half the one hour SO2 limit to match 
the State SO2 limits.
     Adds additional definitions.
     Adds standards for sulfur removal operations at petroleum 
refineries.
     Adds additional test methods for hydrogen sulfide, 
ammonia, and the sulfur content of crude oil.
    EPA has evaluated BAAQMD's submitted Regulation 9 Rule 1 for 
consistency with the CAA, EPA regulations, and EPA policy and has found 
that the revisions result in a clearer, more enforceable rule. Although 
BAAQMD's Regulation 9 Rule 1 will strengthen the SIP, this rule 
contains the following deficiency which should be corrected.
     The rule lacks recordkeeping for some of the source 
categories with emissions limits covered by the rule. EPA also 
recommends the following improvements to the rule.
     An apparent typographical error resulted in the sulfur 
dioxide limits changing from 0.04 ppm to 0.05 ppm over 24 hours when 
the ground level sulfur dioxide limit was moved from one section to 
another section.
     Test method ST-19B is marked as deleted from the BAAQMD 
Manual of Procedures. The rule should be updated to delete this test 
method.
    A detailed discussion of the rule deficiencies and rule 
improvements can be found in the Technical Support Document for 
SJVUAPCD Rule 4802, SCAPCD Rule 4.14 and BAAQMD Regulation 9 Rule 1 (2/
19/99), which is available from the U.S. EPA, Region IX office.
    Because of the deficiencies identified for the rules being acted on 
in this document, they are not fully approvable and may lead to rule 
enforceability problems. Because of the above deficiencies, 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 rules under section 110(k)(3). However, EPA may 
grant a 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 advance the Act's overarching air quality 
protection goals by strengthening the SIP. In order to strengthen the 
SIP by advancing the SO2 air quality protection goal of the 
Act, EPA is proposing a limited approval of SCAQMD Rule 431.2, SJVUAPCD 
Rule 4802, SCAPCD Rule 4.14 and BAAQMD Regulation 9 Rule 1 under 
sections 110(k)(3) and 301(a) of the Act. However, this limited 
approval would not approve those measures as satisfying any other 
specific requirement of the Act, nor would it constitute full approval 
of the SIP submittals pursuant to section 110(k)(3). Rather, a limited 
approval of these rules by EPA would mean that the emission limitations 
and other control measure requirements become part of the California 
SIP and are federally enforceable by EPA. See, e.g. sections 302(q) and 
113 of the Act.
    It is should be noted that the rules covered by this proposed 
rulemaking have been adopted by and are currently in effect in the air 
quality districts to which this action pertains. EPA's final limited 
approval action will not prevent the SCAQMD, SJVUAPCD, SCAPCD, 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. 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.

B. 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.

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 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

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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.

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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, sulfur oxides.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: March 4, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-6507 Filed 3-17-99; 8:45 am]
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