[Federal Register Volume 64, Number 208 (Thursday, October 28, 1999)]
[Rules and Regulations]
[Pages 57991-57994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA71-168a ; FRL -6452-3]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Kern County Air Pollution Control 
District; Yolo-Solano Air Quality Management 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 revisions concern Kern 
County Air Pollution Control District (KCAPCD), Rule 424 and Yolo-
Solano Air Quality Management District, Rule 2.37. The revisions 
include rescission and removal of an obsolete rule from the SIP and the 
incorporation of two rules into the Federally approved SIP.
    The rule to be removed regulated sulfur compound emissions from oil 
field steam generators. No units covered by this rule remain or are in 
operation within KCAPCD's jurisdictional area.
    The rules to be incorporated control emissions of oxides of 
nitrogen (NOX) from natural gas-fired residential water 
heaters.
    This approval action will incorporate the two rules into the 
Federally approved SIP. The intended effect of approving the rules 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.

DATES: These rules are effective on December 27, 1999 without further 
notice, unless EPA receives adverse comments by November 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 
respective rules 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, 
SW, Washington, DC 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
Kern County Air Pollution Control District, 2700 ``M'' Street, Suite 
302, Bakersfield, CA 93301-2370
Yolo-Solano Air Quality Management District 1947 Galileo Court, Suite 
103, Davis, CA 95616-4882

FOR FURTHER INFORMATION CONTACT: Sam Agpawa, Air Planning Office, AIR-
2, Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1228.

SUPPLEMENTARY INFORMATION:

[[Page 57992]]

I. Applicability

    The rule being rescinded and removed is KAPCD Rule 424. The rule 
was adopted by KAPCD on July 18, 1983; approved into the SIP on May 3, 
1984; and rescinded by KAPCD's Board on April 19, 1993. The rule was 
submitted to EPA for rescission on November 18, 1993. The rule number 
was reassigned to a subsequent rule which was adopted by KAPCD's Board 
on the date of rescission.
    The rule being approved for rescission and removal from the SIP is 
the old KAPCD rule 424. The rule applied to sulfur compounds from 
oilfield steam generators. The rules being approved into the California 
SIP are:
    (1) The new KCAPCD Rule 424 and (2) YSAQMD Rule 2.37. The rules 
apply to natural gas-fired residential water heaters. The rules were 
submitted by the State of California to EPA on: (1) KCAPCD Rule 424--
November 18, 1993; and (2) YSAQMD Rule 2.37--February 24, 1995.

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. The air quality planning requirements for the reduction of 
NOX emissions through reasonably available control 
technology (RACT) are set out in section 182(f) of the CAA.
    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. 
KCAPCD and YSAQMD are designated and classified as non-attainment-
serious for ozone 1; therefore, the jurisdictional areas of 
KCAPCD and YSAQMD are subject to the RACT requirements of section 
182(b)(2) cited below and the November 15, 1992 deadline.
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    \1\ Kern County and the Yolo-Solano Air Quality Management 
District retained their designation(s) of nonattainment and were 
classified by operation of law pursuant to sections 107(d) and 
181(a) upon the date of enactment of the CAA. See 56 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 KCAPCD Rule 424 and YSAQMD Rule 2.37 and 
RACT requirements do not apply; however, the rules are expected to 
achieve substantial reductions of NOX because they apply to 
a large number of small sources.
    This document addresses EPA's direct final action for KCAPCD Rule 
424 and YSAQMD Rule 2.37, applying to natural gas-fired residential 
water heaters. The rules were adopted on: (1) KCAPCD Rule 424--April 
19, 1993 and (2) YSAQMD 2.37--November 9, 1994.
    The State of California submitted the rules to EPA for 
incorporation into its SIP on: (1) KCAPCD Rule 424--November 18, 1993; 
and (2) YSAQMD Rule 2.37--February 24, 1995. KCAPCD Rule 424 was found 
complete on December 27, 1993; YSAQMD Rule 2.37 was found complete on 
March 10, 1995 pursuant to EPA's completeness criteria that are set 
forth in 40 CFR Part 51, Appendix V.2 The rules are 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. Both rules specify exhaust emission standards for 
NOX from residential water heaters. The rules were 
originally adopted as part of each applicable 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 these rules.

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 In general, the guidance documents cited above, 
as well as other relevant and applicable guidance documents, have been 
set forth to ensure that submitted NOX RACT rules meet 
Federal RACT requirements and are fully enforceable and strengthen or 
maintain the SIP.
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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 that concern RACT, 52 FR 45044 (November 24, 1987); ``Issues 
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, 
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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    KCAPCD Rule 424 and YSAMQD Rule 2.37 prohibit the sale and 
installation of units within Kern County and the Yolo-Solano Air 
Quality Management District that exceed the Rules' specified emission 
rates. Rule 424 replaces a rescinded rule which controlled sulfur 
compound emissions from oil fields. The rescinded rule is no longer 
applicable. The new rule was assigned the same number (424). KCAPCD 
Rule 424 and YSAQMD Rule 2.37 are similar to South Coast Air Quality 
Management District (SCAQMD) Rule 1121 which prohibits units that do 
not meet the SCAQMD rule requirements from being sold or installed in 
Los Angeles Basin.
    EPA has evaluated the submitted rules and has determined that they 
are consistent with the CAA, EPA regulations and EPA policy. Therefore, 
KCAPCD Rule 424; and YSAQMD Rule 2.37, Natural Gas-fired Residential 
Water Heaters; are 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.
    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 
adverse comments be filed. This rule will be effective December 27, 
1999 without further notice unless the Agency receives adverse comments 
by November 29, 1999.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register 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

[[Page 57993]]

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 December 27, 1999 and no 
further action will be taken on the proposed rule.

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 rules do not create a mandate on State, local or tribal 
governments. The rules do not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to these rules.

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. These rules are not subject to E.O. 13045 because they 
do 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 
rules do 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 these rules.

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. These final rules 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 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

[[Page 57994]]

the Federal Register. These rules are not ``major'' rules 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 December 27, 1999. Filing a 
petition for reconsideration by the Administrator of these final rules 
does not affect the finality of these rules 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 rules 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.

    Dated: September 9, 1999.
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 paragraphs (c)(140)(ii)(C), 
(194)(i)(B)(4), (215)(i)(D) introductory text, and (215)(i)(D)(2) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (140) * * *
    (ii) * * *
    (C) Previously approved on May 3, 1984 and now deleted without 
replacement for implementation in the Southeast Desert Air Basin Rule 
424.
* * * * *
    (194) * * *
    (i) * * *
    (B) * * *
    (4) Rule 424 adopted on April 19, 1993.
* * * * *
    (215) * * *
    (i) * * *
    (D) Yolo-Solano Air Pollution Control District.
* * * * *
    (2) Rule 2.37 adopted on November 9, 1994.
* * * * *
 [FR Doc 99-27199 Filed 10-27-99; 8:45 am]
 BILLING CODE 6560-50-P