[Federal Register Volume 64, Number 60 (Tuesday, March 30, 1999)]
[Rules and Regulations]
[Pages 15129-15132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7668]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0127a; FRL-6313-4]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; El Dorado County Air Pollution 
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
California State Implementation Plan (SIP). The El Dorado County Air 
Pollution Control District (EDCAPCD), Rule 239 concerns control of 
emissions of oxides of nitrogen (NOX) from natural gas-fired 
residential water heaters.
    This approval action will incorporate this rule into the Federally 
approved SIP. The intended effect of approving of this rule is to 
regulate NOX emissions in accordance with the requirements 
of the Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is 
finalizing the approval of this revision into the California SIP under 
provisions of the CAA regarding EPA actions on SIP submittals, SIPs for 
national primary and secondary ambient air quality standards (NAAQS), 
and plan requirements for nonattainment areas.


[[Page 15130]]


DATES: This rule is effective on June 1, 1999 without further notice, 
unless EPA receives adverse comments by April 29, 1999. If EPA receives 
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 and EPA's evaluation 
report of each rule are available for public inspection at EPA's Region 
IX office during normal business hours. Copies of the submitted rule 
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 94105-3901
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
El Dorado County Environmental Management Department, Air Pollution 
Control District, 2850 Fairlane Court, Placerville, CA 95667

FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office, AIR-4, 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901 Telephone: (415) 744-
1185.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being approved into the California SIP is EDCAPCD's Rule 
239, Natural Gas-fired Residential Water Heaters. Rule 239 was 
submitted by the State of California to EPA on June 23, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were 
enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
7671q.
    On November 25, 1992, EPA published a proposed rule entitled, 
``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) which describes and 
provides preliminary guidance on the requirements of section 182(f). 
The November 25, 1992, action should be referred to for further 
information on the NOX requirements and is incorporated into 
this document by reference.
    Section 182 (f) of the Clean Air Act requires States to apply the 
same requirements to major stationary sources of NOX 
(``major'' as defined in section 302 and sections 182(c), (d), and (e)) 
as are applied to major stationary sources of volatile organic 
compounds (VOCs), in moderate or above ozone nonattainment areas. El 
Dorado County Air Pollution Control District (EDCAPCD) is classified as 
serious 1; therefore this area is subject to the RACT 
requirements of section 182(b)(2) cited below and the November 15, 1992 
deadline.
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    \1\ EDCAPCD area retained the designation of nonattainment and 
is classified by operation of law pursuant to sections 107(d) and 
181(a) upon the date of enactment of the CAA. See 55 FR 56694 
(November 6, 1991).
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    Section 182(b)(2) requires submittal of RACT rules for major 
stationary sources of VOC (and NOX) emissions (not covered 
by a pre-enactment control technologies guidelines (CTG) document or a 
post-enactment CTG document) by November 15, 1992. There are no major 
stationary sources covered by this rule; however, this rule is expected 
to achieve substantial reductions of NOX because it applies 
to a large number of small sources.
    This document addresses EPA's direct final action for EDCAPCD's 
Rule 239, Natural Gas-fired Residential Water Heaters. EDCAPCD's Rule 
239 was first adopted on March 24, 1998.
    The State of California submitted the rule to EPA for incorporation 
into its SIP on June 23, 1998. Rule 239 was found to be complete on 
August 25, 1998 pursuant to EPA's completeness criteria that are set 
forth in 40 CFR Part 51, Appendix V 2 and is being finalized 
for approval into the SIP.
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    \2\ EPA adopted the completeness criteria on February 16, 1990 
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, 
revised the criteria on August 26, 1991 (56 FR 42216).
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    NOX emissions contribute to the production of ground 
level ozone and smog. EDCAPCD's Rule 239 specifies exhaust emission 
standards for NOX from natural gas-fired residential water 
heaters. This rule was originally adopted as part of District's efforts 
to achieve the National Ambient Air Quality Standard (NAAQS) for ozone, 
and in response to the CAA requirements cited above. The following is 
EPA's evaluation and final action for this rule.

III. EPA Evaluation and Proposed Action

    In determining the approvability of a NOX rule, EPA must 
evaluate the rule for consistency with the requirements of the CAA and 
EPA regulations, as found in section 110 and Part D of the CAA and 40 
CFR Part 51 (Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans). The EPA interpretation of these requirements, 
which forms the basis for today's action, appears in the NOX 
Supplement (57 FR 55620) and various other EPA policy guidance 
documents.3
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    \3\ Among other things, the pre-amendment guidance consists of 
those portions of the proposed post-1987 ozone and carbon monoxide 
policy 52 FR 45044 (November 24, 1987); ``Issues Relating to VOC 
regulation Cutpoints, Deficiencies, and Deviation, Clarification to 
Appendix D of November 24, 1987 Federal Register Notice'' (Blue 
Book) (notice of availability was published in the Federal Register 
on May 25, 1988).
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    South Coast Air Quality Management District (SCAQMD) has developed 
a protocol document entitled Nitrogen Oxides Emissions Compliance 
Testing for Natural Gas-fired Water Heaters and Small Boilers jointly 
with the industry and replaces the ANSI requirements currently used by 
manufacturers. EPA has used SCAQMD's guidance document in evaluating 
EDCAPCD's Rule 239 for consistency with the enforceability 
requirements.
    There is currently no version of EDCAPCD's Rule 239, Natural Gas-
fired Residential Water Heaters, in the SIP. Rule 239 establishes 
NOX and carbon monoxide (CO) emissions limits for natural 
gas-fired residential water heaters with rated heat inputs of greater 
than or equal to 75,000 Btu per hour.
    The submitted rule includes the following provisions:
     General provisions including applicability, exemptions, 
and definitions.
     Exhaust emissions standards for oxides of nitrogen 
(NOX).
     Administrative and monitoring requirements including 
compliance schedule, reporting requirements, monitoring and record 
keeping, and test methods.
    Rules submitted to EPA for approval as revisions to the SIP must be 
fully enforceable, must maintain or strengthen the SIP and must conform 
with EPA policy in order to be approved by EPA. When reviewing rules 
for SIP approvability, EPA evaluates enforceability elements such as 
test methods, record keeping, and compliance testing in addition to 
applicable guidance regarding emission limits. Rule 239 strengthens the 
SIP through the addition of enforceable measures such as record 
keeping, test methods, definitions, and emissions limits. Incorporation 
of the rule into the SIP would decrease the NOX emissions 
allowed by the SIP.
    A detailed discussion of the sources controlled, the controls 
required, and justification can be found in the

[[Page 15131]]

Technical Support Document (TSD) for Rule 229, dated December 30, 1998, 
which is available from the U.S. EPA Region IX office.
    EPA has evaluated the submitted rule and has determined it 
consistent with the CAA, EPA regulations and EPA policy. Therefore, 
Rule 239, Natural Gas-fired Residential Water Heaters; is being 
approved under section 110(k)(3) of the CAA as meeting the requirements 
of section 110(a), section 182(b)(2), section 182(f) and the 
NOX Supplement to the General Preamble.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, Regulatory 
Planning and Review.

B. Executive Order 12875

    Under Executive Order 12875, Enhancing the Intergovernmental 
Partnership, 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, or 
EPA consults with those governments. If EPA complies by consulting, 
Executive Order 12875 requires EPA to 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 any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 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.

C. 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.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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 officials and 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. Accordingly, the requirements of section 3(b) of 
E.O. 13084 do not apply to this rule.

E. 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).

F. 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.

G. 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

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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).

H. Petitions for Judicial Review

    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 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, Oxides of 
nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.
    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    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: March 11, 1999.
Laura Yoshii,
Deputy 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) (256) (D) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (256) * * *
    (i) * * *
    (D) El Dorado County Pollution Control District .
    (1) Rule 239 adopted on March 24, 1998.
* * * * *
[FR Doc. 99-7668 Filed 3-29-99; 8:45 am]
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