[Federal Register Volume 67, Number 97 (Monday, May 20, 2002)]
[Rules and Regulations]
[Pages 35434-35437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12410]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 245-0311a; FRL-7202-1]


Revisions to the California State Implementation Plan, 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 to approve a revision to the 
Bay Area Air Quality Management District (BAAQMD) portion of the 
California State Implementation Plan (SIP). This revision concerns 
emissions of nitrogen oxides (NOX) and carbon monoxide (CO) 
from electric power generating steam boilers. We are proposing action 
on a local rule that regulates these emission sources under the Clean 
Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on July 19, 2002, without further notice, 
unless EPA receives adverse comments by June 19, 2002. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register to notify the public that this rule will not take effect.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    You can inspect a copy of the submitted SIP revision and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see a copy of the submitted SIP revision 
at the following locations:

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, N.W., Washington D.C. 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94109.


FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What are the changes in the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. EPA recommendations for the next rule revision
    D. Public comment and final action
III. Background Information
    Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule we are approving with the dates that it was 
adopted by the local air agency and submitted by the California Air 
Resources Board (CARB).

[[Page 35435]]



                                            Table 1.--Submitted Rule
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               Local Agency                   Rule No.             Rule Title             Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
BAAQMD....................................         9-11  Nitrogen Oxides and Carbon        05/17/00     12/11/00
                                                          Monoxide From Electric Power
                                                          Generating Steam Boilers.
----------------------------------------------------------------------------------------------------------------

    On February 8, 2001, this rule submittal was found to meet the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of This Rule?

    The previous version of Rule 9-11 is SIP Rule 9-11, Nitrogen Oxides 
and Carbon Monoxide From Utility Electric Power Generating Boilers, 
approved into the SIP on July 31, 1998 (63 FR 40828).

C. What are the Changes in the Submitted Rule?

    BAAQMD Rule 9-11 regulates NOX and CO emissions from 
electric power generating steam boilers down to a rating of 250 million 
Btu per hour (MM Btu/hr). We approved an earlier version of Rule 9-11 
into the California SIP. The submitted Rule 9-11 includes changes 
necessary to ensure that the rule continues to be as effective in 
reducing emissions from power plants under the deregulated electricity 
market in California as had been anticipated when the original Rule 9-
11 was drafted and submitted to EPA for approval into the SIP. 
Specifically, the existing Rule 9-11 applies to electric power 
generating steam boilers owned and/or operated by a California Public 
Utilities Commission (CPUC) regulated utility. In the wake of 
deregulation of certain aspects of the California electricity market 
and the corresponding change in the role of the CPUC, the number of 
such boilers has decreased and will eventually be zero, which will 
diminish the enforceability of the rule by EPA or citizens. The 
submitted Rule 9-11 deletes the references to utilities or the CPUC 
that are found in the existing SIP Rule 9-11 and simply refers to all 
electric power generating steam boilers of a certain size or greater in 
the BAAQMD, thereby retaining the regulatory support for emission 
reductions assumed to be a part of the SIP.

II. EPA's Evaluation and Action

A. How is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193). The BAAQMD regulates an area designated as a nonattainment area 
for ozone, and such areas must comply with title I, part D, subpart 1 
of the CAA, which includes section 172(c)(1). accordance with subpart 
1, section 172(c)(1) of the CAA. This section requires that the BAAQMD 
adopt RACM that, at a minimum, includes RACT. However, there are no 
specific mandatory NOX measures that must be adopted under 
section 172(c)(1). In addition, ozone isopleths developed by the BAAQMD 
have shown that additional NOX control would be 
disbeneficial in reducing peak ozone concentrations in Livermore 
Valley, the subarea from which the most ozone violations are recorded 
and from which the regional ozone attainment strategy derives. See 
figure 3, on page 17, of the San Francisco Bay Area Ozone Attainment 
Plan for the 1-Hour National Ozone Standard, BAAQMD (June 1999) and 
figures 3 and 6, on pages 18 and 21, respectively, of the Revised San 
Francisco Bay Area Ozone Attainment Plan for the 1-Hour National Ozone 
Standard, BAAQMD (October 24, 2001). Therefore, requiring more 
stringent NOX controls is not required to fulfill RACM/RACT 
requirements under section 172(c)(1) of the CAA.
    Guidance and policy documents that we used include the following:
     Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
     Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations; Clarification to Appendix D of November 24,1987 Federal 
Register Document, (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.
     State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown, U.S. EPA 
(September 20, 1999).
     Alternative Control Techniques Document--NOX 
Emissions From Utility Boilers, U.S. EPA, Office of Air Quality 
Planning and Standards (March 1994).

B. Does the Rule Meet the Evaluation Criteria?

    We believe this rule is consistent with the relevant policy and 
guidance regarding enforceability, SIP relaxations, and RACM/RACT 
requirements. The TSD has more information on our evaluation.

C. EPA Recommendations for the Next Rule Revision

    The following are not grounds for disapproval at this time, but 
should be corrected in the next rule revision:
     The ammonia test method should not allow for the approval 
by the APCO of an unspecified alternate test method.
     The exemption from the NOX emission standards 
during startup can continue indefinitely if an unspecified catalytic 
reaction temperature is not reached. A maximum limit for the startup 
time or the means of determining the applicable catalytic reaction 
temperature should be stated.

D. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving the submitted rule because we believe it fulfills all 
relevant requirements. We do not think anyone will object to this 
approval, so we are finalizing it without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted rule. If we 
receive adverse comments by June 19, 2002, we will publish a timely 
withdrawal in the Federal Register to notify the public that the direct 
final approval will not take effect and we will address the comments in 
a subsequent final action based on the proposal. If we do not receive 
timely adverse comments, the direct final approval will be effective 
without further notice on July 19, 2002. This action will incorporate 
BAAQMD Rule 9-11, adopted on May 17, 2000 into the federally 
enforceable SIP and thereby supercede the existing SIP Rule 9-11, 
approved into the SIP on July 31, 1998 (63 FR 40828).

[[Page 35436]]

III. Background Information

Why Was This Rule Submitted?

    NOX helps produce ground-level ozone, smog, and 
particulate matter which harm human health and the environment. Section 
110(a) of the CAA requires states to submit regulations that control 
NOX emissions. Table 2 lists some of the national milestones 
leading to the submittal of these local agency NOX rules.

                Table 2.--Ozone Nonattainment Milestones
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             Date                                Event
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March 3, 1978................  EPA promulgated a list of ozone
                                nonattainment areas under the Clean Air
                                Act as amended in 1977. 43 FR 8964; 40
                                CFR 81.305.
May 26, 1988.................  EPA notified Governors that parts of
                                their SIPs were inadequate to attain and
                                maintain the ozone standard and
                                requested that they correct the
                                deficiencies (EPA's SIP-Call). See
                                section 110(a)(2)(H) of the pre-amended
                                Act.
November 15, 1990............  Clean Air Act Amendments of 1990 were
                                enacted. Pub. L. 101-549, 104 Stat.
                                2399, codified at 42 U.S.C. 7401-7671q.
May 15, 1991.................  Section 182(a)(2)(A) requires that ozone
                                nonattainment areas correct deficient
                                RACT rules by this date.
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IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 19, 2002. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: April 11, 2002.
Nora L. McGee,
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)(285)(C) to 
read as follows:

[[Page 35437]]

Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (285) * * *
    (C) Bay Area Air Quality Management District.
    (1) Rule 9-11, adopted on May 17, 2000.
* * * * *
[FR Doc. 02-12410 Filed 5-17-02; 8:45 am]
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