E8-6643. Revision to the California State Implementation Plan, Bay Area Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of revisions to the Bay Area Air Quality Management District (BAAQMD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the Federal Register on December 20, 2007, and concern nitrogen oxides (NO_X) and carbon monoxide (CO) emissions from boilers, steam generators and process heaters at petroleum refineries. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Effective Date: This rule is effective on May 2, 2008.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2007-0970 for this action. The index to the docket 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].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Background

III. Public Comments and EPA Responses

IV. EPA Action

V. Statutory and Executive Order Reviews

I. Proposed Action

On December 20, 2007 (72 FR 72322), EPA proposed to approve BAAQMD Rule 9-10, Nitrogen Oxides and Carbon Monoxide from Boilers, Steam Generators, and Process Heaters in Petroleum Refineries, into the California SIP. This rule was adopted by the BAAQMD on July 17, 2002, and submitted by the California Air Resources Board on August 12, 2002.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

II. Background

On March 29, 2001 (66 FR 17078), EPA published a limited approval and limited disapproval of a previous version of BAAQMD Rule 9-10, 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 were addressed in a second proposed approval, published on December 20, 2007 (72 FR 72322), which is being finalized by this action. For more information on BAAQMD Rule 9-10 and our evaluation, please see the proposed action.

III. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we did not receive any comments.

IV. EPA Action

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California 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 sanctions and sanction clocks will be permanently terminated on the effective date of this final rule approval.

V. Statutory and Executive Order Reviews

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 Clean Air Act. 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 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 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. section 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. section 804(2).

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 June 2, 2008. 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements

Dated: February 15, 2008.

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)(353) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(353) New and amended regulations were submitted on August 12, 2002, by the Governor's designee.

(i) Incorporation by reference.

(A) Bay Area Air Quality Management District.

(1) Rule 9-10, Inorganic Gaseous Pollutants: Nitrogen Oxides and Carbon Monoxide from Boilers, Steam Generators, and Process Heaters in Petroleum Refineries, adopted on July 17, 2002.