E7-24715. Revision to the California State Implementation Plan, Bay Area Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing approval of a revision to the Bay Area Air Quality Management District (BAAQMD) portion of the California State Implementation Plan (SIP). This revision concerns nitrogen oxides (NO_X) and carbon monoxide (CO) emissions from boilers, steam generators and process heaters at petroleum refineries. We are proposing to approve a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES:

Any comments must arrive by January 22, 2008.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2007-0970, by one of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions.

2. E-mail: [e-mail].

3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Andrew Steckel, EPA Region IX, [phone], [e-mail] v.

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 is the purpose of the submitted rule?

II. EPA's Evaluation

A. EPA's Previous Action

B. How is EPA evaluating the rule?

C. Why is EPA re-proposing to approve this rule?

D. Public Comments and EPA Responses

III. EPA Action

IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

EPA is proposing to approve BAAQMD Rule 9-10, Nitrogen Oxides and Carbon Monoxide from Boilers, Steam Generators, and Process Heaters in Petroleum Refineries, adopted by the BAAQMD on July 17, 2002, and submitted by the California Air Resources Board on August 12, 2002. On September 11, 2002, 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?

BAAQMD adopted an earlier version of this rule on January 5, 1994, and CARB submitted it to us on July 23, 1996. We published a limited approval and limited disapproval of this previous version of Rule 9-10 into the SIP on March 29, 2001 (66 FR 17078).

C. What is the purpose of the submitted rule?

Rule 9-10 limits the emissions of nitrogen oxides (NO_X) and carbon monoxide from boilers, steam generators, and process heaters in petroleum refineries. NO_X emissions contribute to producing 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 NO_X emissions.

II. EPA's Evaluation

A. EPA's Previous Action

On March 29, 2001 (66 FR 17078), EPA published a limited approval and limited disapproval of a previous version of this rule, because the rule improved the SIP overall, but some rule provisions failed to satisfy the requirements of section 110 of the CAA. On August 12, 2002, BAAQMD submitted a revised version of Rule 9-10 for approval into the SIP, to address the deficiencies identified by EPA in 2001.

On October 7, 2002 (67 FR 62389), EPA published a direct final rule to approve this revised version of BAAQMD Rule 9-10 into the California SIP. In association with the direct final rule, EPA published a proposed rule to allow an opportunity for the public to comment on the approval of Rule 9-10 into the California SIP (67 FR 62427). Based on the proposed approval of Rule 9-10, EPA made an interim final determination to stay the imposition of sanctions that resulted from the March 29, 2001, limited disapproval action. The interim final rule to stay the imposition of sanctions was published concurrently on October 7, 2002 (67 FR 62388).

Adverse comments were received in response to the October 7, 2002, proposed rule. As a result, EPA published a withdrawal of the direct final rule on November 25, 2002 (67 FR 70555). The proposed approval remained in effect, and therefore the interim final determination regarding sanctions was not affected by the withdrawal because the determination was based on the proposed approval of Rule 9-10. The comments received are being addressed in today's proposed rule.

B. How is EPA evaluating the rule?

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). However, as further explained in our response to public comments below, we believe that Rule 9-10 is not required to fulfill RACT or Reasonably Available Control Measures (RACM) to be approved into the SIP. Therefore, BAAQMD Rule 9-10 was primarily evaluated for enforceability and whether it would relax existing SIP requirements.

As mentioned in the October 7, 2002, proposed approval, the guidance and policy documents that we use to help evaluate enforceability and other general requirements consistently include the following:

1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO_X Supplement), 57 FR 55620, November 25, 1992.

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

We believe BAAQMD Rule 9-10 meets the evaluation criteria and is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations.

C. Why is EPA re-proposing to approve this rule?

In our proposed action on October 7, 2002, we stated that BAAQMD Rule 9-10 must fulfill RACT and that the rule was consistent with the relevant policy and guidance regarding RACT (67 FR 62386). As further explained in our response to public comments below, we have re-evaluated whether Rule 9-10 is subject to federal RACT requirements in CAA section 182(f). We believe that Rule 9-10 is not required to fulfill RACT to be approved into the SIP. Additionally, as a marginal 8-hour ozone nonattainment area, the BAAQMD is not required to submit an attainment demonstration showing that it has adopted all necessary RACM. See 70 FR 71659. In today's action, we are again proposing to fully approve BAAQMD Rule 9-10 into the SIP. In this proposed rule, we are giving the public an opportunity to review and comment on the changes in our evaluation of the rule.

D. Public Comments and EPA Responses

EPA's proposed action on October 7, 2002, provided a 30-day public comment period. During this period, we received comments from the following parties:

1. Brigette Tollstrup, Sacramento Metropolitan Air Quality Management District (SMAQMD); letter dated October 23, 2002, and received October 30, 2002.

2. Ken Kloc, Our Children's Earth Foundation (OCE); letter dated November 6, 2002, and received November 12, 2002.

3. Suma Peesapati, Community for a Better Environment (CBE); letter dated November 6, 2002, and received November 12, 2002.

4. Peter Hess, Bay Area Air Quality Management District (BAAQMD); letter dated November 30, 2002. The BAAQMD letter, in support of the EPA approval action, was received after the close of the comment period. However, we considered BAAQMD comments and included information from the BAAQMD in our responses.

The comments and our responses are summarized below.

Comment 1: SMAQMD and CBE contend that sources of NO_X in the BAAQMD must implement RACT under section 182(f) of the Act because the BAAQMD's redesignation plan, which relied on Rule 9-10 as a maintenance measure, was disapproved and “the NO_X waiver” revoked by EPA. See 63 FR 37258. CBE further contends that the BAAQMD must implement all RACM under section 172(c)(1) of the Act.

Response 1: The BAAQMD contends and EPA agrees that Rule 9-10 is not subject to federal RACT requirements in CAA section 182(f). Since the early 1990's, the Bay Area has fluctuated in and out of attainment with respect to the National Ambient Air Quality Standard (NAAQS) for ozone. Despite being designated as a nonattainment area under both the 1-hour and the recently promulgated 8-hour ozone standards, the Bay Area has not been subject to the NO_X RACT requirements contained in CAA section 182(f) since the early 1990's as explained below.

• From 1990 to 1992, the Bay Area did not experience any exceedances of the original 1-hour ozone NAAQS and submitted requests to EPA for redesignation to attainment and for a waiver of the CAA section 182(f) NO_X RACT requirements. The request for “the NO_X waiver” was based on a claim by the BAAQMD that a modeling analysis indicated that additional NO_X reductions would tend to raise local Bay Area ozone levels. On May 22, 1995, EPA redesignated the Bay Area to attainment and granted the BAAQMD's request for the NO_X waiver. See 60 FR 27028. As a result, the BAAQMD was not subject to the section 182(f) NO_X RACT requirements.
• From 1995 to 1996, the Bay Area experienced a number of exceedances of the 1-hour NAAQS. As a result, EPA redesignated the Bay Area to nonattainment and revoked “the NO_X waiver” on July 10, 1998. See 63 FR 37258. Under certain circumstances, the redesignation may have required that the BAAQMD impose NO_X RACT requirements, however, EPA's redesignation was made pursuant to our authority in part D, subpart 1 of the Act, which does not impose specific NO_X RACT requirements. As stated in our final rulemaking, “[b]ecause the Bay Area is being redesignated under subpart 1 of the Act, there are no mandatory NO_X measures which must be adopted.” See 63 FR 37273. Specific NO_X RACT requirements are found in part D, subpart 2. Therefore, the BAAQMD was not subject to the CAA section 182(f) NO_X RACT requirements.
• With additional exceedances of the 1-hour NAAQS from 1999 to 2000, EPA made a formal finding on September 20, 2001, that the Bay Area had not attained the standard, and EPA disapproved the BAAQMD's 1999 Ozone Attainment Plan. See 66 FR 48340. This finding required that the BAAQMD submit a new ozone attainment plan. However, the CAA section 182(f) NO_X RACT requirements were still not necessary because BAAQMD's nonattainment status was established under part D, subpart 1 of the Act in our 1998 rulemaking.
• From 2001 to 2003, the Bay Area did not experience any exceedances of the 1-hour NAAQS. As a result, EPA made a finding of attainment on April 22, 2004, which would also serve to relieve the BAAQMD of any possible unmet obligations with regard to RACT it may have had under the 1-hour standard. See 69 FR 21717.
• On June 15, 2004, EPA's designation of the Bay Area as an 8-hour ozone marginal nonattainment area became effective. See 69 FR 23857. As with all marginal areas, the BAAQMD is not required to submit a SIP that meets RACT. See “Final Rule to Implement the 8-hour Ozone NAAQS—Phase 2,” 70 FR 71653.

With regard to the section 172(c)(1) requirement that nonattainment areas must provide for RACM, we have interpreted this requirement to mean that it would not be reasonable to require implementation of those measures which might in fact be available for implementation yet would not advance the area's attainment date. See id. at 71653. Because we have determined that the Bay Area attained the revoked 1-hour ozone NAAQS (see 69 FR 21717), Rule 9-10 would not be expected to advance the Bay Area's attainment date and, therefore, would not be considered a necessary RACM measure under section 172(c)(1). Additionally, as a marginal 8-hour ozone nonattainment area, the BAAQMD is not required to submit an attainment demonstration showing that it has adopted all RACM necessary. See 70 FR 71659.

Comment 2: SMAQMD, OCE and CBE commented that Rule 9-10 contains several provisions that do not satisfy the RACT requirements of CAA section 182(f), citing more stringent standards imposed by other air pollution control agencies in California. These stricter provisions should be considered technologically feasible because they have been adopted in other areas and should therefore be required to be implemented by nonattainment areas including the BAAQMD.

Response 2: The BAAQMD is not required to submit rules which satisfy the RACT requirements of section 182(f). See Response 1 for a more detailed explanation.

Comment 3: SMAQMD, OCE and CBE highlight more stringent limits that were adopted by the BAAQMD but not submitted to EPA for approval into the SIP. SMAQMD and OCE argue that the adoption of a more stringent standard by the BAAQMD is further evidence that the submitted limits do not represent RACT.

Response 3: As discussed in Response 1, the BAAQMD need not submit regulations containing RACT requirements. The BAAQMD argues that the rule provisions which were not submitted to EPA for inclusion in the SIP implement California Best Available Retrofit Control Technology (BARCT). Measures necessary to meet California's more stringent air quality standards are not required to meet the NAAQS and therefore need not be submitted to EPA for inclusion in the SIP. The BAAQMD has determined which provisions of Rule 9-10 are necessary to meet the NAAQS and submitted them to EPA. The omission from the submitted version of Rule 9-10 of the other more stringent limits cited by the commenters does not affect EPA's ability to independently evaluate the submitted version of Rule 9-10 against applicable CAA requirements.

Comment 4: CBE urged EPA to require BAAQMD to submit the entire rule for inclusion in the SIP as required by the Act. CBE had requested that the BAAQMD include Rule 9-10, in its entirety, in the BAAQMD's 2001 and Revised 2001 Ozone Attainment Plans. CBE requests that EPA remedy the situation by requiring the BAAQMD to submit all provision of Rule 9-10.

Response 4: See Response 3.

Comment 5: OCE requested that EPA conduct a RACT evaluation of Rule 9-10 and re-propose approval of Rule 9-10 once that evaluation is complete.

Response 5: A RACT evaluation of Rule 9-10 is not required. For further discussion regarding RACT requirements in the BAAQMD, see Response 1.

III. EPA Action

Because EPA believes the submitted rule fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.

All sanctions and sanction clocks, which were triggered as a result of the disapproval action on March 29, 2001 (66 FR 17078), continue to be stayed as a result of the interim final determination published on October 7, 2002 (67 FR 62388). The comments received in response to the October 7, 2002, proposed rule approval have not changed our conclusion that the submitted rule complies with the relevant CAA requirements. The sanctions and sanction clocks will be permanently terminated on the effective date of the final rule approval.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve preexisting 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 proposed 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 proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed 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 approves a State rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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 proposed 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.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

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

Dated: November 27, 2007.

Wayne Nastri,

Regional Administrator, Region IX.