

[Federal Register: December 20, 2007 (Volume 72, Number 244)]
[Proposed Rules]               
[Page 72322-72325]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de07-25]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2007-0970; FRL-8508-7]

 
Revision to the California State Implementation Plan, Bay Area 
Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 
(NOX) 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: http://www.regulations.gov. Follow the on-

line instructions.
    2. E-mail: steckel.andrew@epa.gov.
    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 http://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 http://www.regulations.gov or e-mail. 

http://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.

[[Page 72323]]

    Docket: The index to the docket for this action is available 
electronically at http://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, (415) 
947-4115, steckel.andrew@epa.gov.

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 (NOX) 
and carbon monoxide from boilers, steam generators, and process heaters 
in petroleum refineries. NOX 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 NOX 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 NOX 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

[[Page 72324]]

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 NOX 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 NOX 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 NOX 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) NOX RACT requirements. The request for ``the 
NOX waiver'' was based on a claim by the BAAQMD that a 
modeling analysis indicated that additional NOX 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 NOX waiver. See 60 FR 27028. As a result, 
the BAAQMD was not subject to the section 182(f) NOX 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 NOX waiver'' on July 
10, 1998. See 63 FR 37258. Under certain circumstances, the 
redesignation may have required that the BAAQMD impose NOX 
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 NOX 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 NOX measures 
which must be adopted.'' See 63 FR 37273. Specific NOX RACT 
requirements are found in part D, subpart 2. Therefore, the BAAQMD was 
not subject to the CAA section 182(f) NOX 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) NOX 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.

[[Page 72325]]

    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.
 [FR Doc. E7-24715 Filed 12-19-07; 8:45 am]

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