Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: December 31, 1998 (Volume 63, Number 251)]

[Rules and Regulations]

[Page 72195-72197]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr31de98-27]

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.

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 (NO‹INF›x‹/INF›) 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 NO‹INF›x‹/INF› 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:

1. 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.

2. 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, NO‹INF›2‹/INF›, 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 ‹SUP›1‹/SUP› 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.

   \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).

   NO‹INF›X‹/INF› emissions contribute to the production of ground level ozone and smog. MBUAPCD's Rule 431 controls emissions NO‹INF›X‹/INF› 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.

3. EPA Evaluation and Action

   In determining the approvability of a NO‹INF›X‹/INF› 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 NO‹INF›X‹/INF› rule must, at a minimum, provide for the implementation of RACT for stationary sources of NO‹INF›X‹/INF› 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 NO‹INF›2‹/INF›, 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 NO‹INF›X‹/INF› 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.

4. Administrative Requirements

   1. 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.''

   2. 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.

   3. 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.

   4. 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.

   5. 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).

   6. 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.

   7. 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).

   8. Petitions for Judicial Review

      Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin 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. 98-34552Filed12-30-98; 8:45 am]

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