[Federal Register Volume 65, Number 24 (Friday, February 4, 2000)]
[Proposed Rules]
[Pages 5465-5468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-02476]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 105-0201 FRL-6532-9]


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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

-----------------------------------------------------------------------

SUMMARY:  EPA is proposing to approve a revision to the California 
State Implementation Plan (SIP) for ozone. The revision concerns the 
control of oxides of nitrogen (NOX) for the Kern County Air 
Pollution Control District (KCAPCD). The revision concerns KCAPCD Rule 
425.1 for the control of oxides of nitrogen (NOX) emissions 
from hot mix asphalt paving plants. The intended effect of proposing 
approval of this rule is to regulate emissions of (NOX) in 
accordance with the requirements of the Clean Air Act, as amended in 
1990 (CAA or the Act). EPA's final action on this proposed rule will 
incorporate this rule into the Federally approved SIP. EPA has 
evaluated this rule and is proposing to approve it 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:  Comments must be received on or before March 6, 2000.

ADDRESSES:  Comments may be mailed to: Andrew Steckel, Rulemaking 
Office, AIR-4, Air Division, U.S.

[[Page 5466]]

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
    Copies of the rule and EPA's evaluation report of the rule is 
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:

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


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-
1160.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for approval into the California SIP is 
Kern County Air Pollution Control District (KCAPCD) Rule 425.1, Hot Mix 
Asphalt Paving Plants (Oxides of Nitrogen). Rule 425.1 was submitted by 
the State of California to EPA on October 19, 1994.

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 Clean Air Act.
    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 NOX Supplement should be referred to for further 
information on the NOX requirements.
    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 compound 
(VOCs), in moderate or above ozone nonattainment areas. KCAPCD is 
classified as serious; \1\ therefore this area is subject to the RACT 
requirements of section 182(b)(2) and the November 15, 1992 deadline 
cited below.
---------------------------------------------------------------------------

    \1\ KCAPCD retained its designation of nonattainment and was 
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).
---------------------------------------------------------------------------

    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 were no 
NOX CTGs issued before enactment and EPA has not issued a 
CTG document for any NOX sources since enactment of the CAA. 
The RACT rule covering NOX sources and submitted as a SIP 
revision requires final installation of the actual NOX 
controls as expeditiously as practicable, but no later than May 31, 
1995.
    This document addresses EPA's proposed action for Kern County Air 
Pollution Control District (KCAPCD) Rule 425.1, Hot Mix Asphalt Paving 
Plants (Oxides of Nitrogen), adopted by the KCAPCD on October 13, 1994. 
The State of California submitted Rule 425.1 to EPA October 19, 1994. 
Rule 425.1 was found to be complete on October 21, 1994, pursuant to 
EPA's completeness criteria that are set forth in 40 CFR Part 51, 
Appendix V. \2\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    NOX emissions contribute to the production of ground 
level ozone and smog. KCAPCD Rule 425.1 specified exhaust emission 
standards for NOX, and was originally adopted as part of 
KCAPCD's effort 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 proposed action for the 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). Among those provisions is the requirement that a 
NOX rule must, at a minimum, provide for the implementation 
of RACT for stationary sources of NOX emissions. 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\
---------------------------------------------------------------------------

    \3\ ``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).
---------------------------------------------------------------------------

    For the purpose of assisting State and local agencies in developing 
NOX RACT rules, EPA prepared the NOX Supplement 
to the General Preamble. In the NOX Supplement, EPA provides 
preliminary guidance on how RACT will be determined for stationary 
sources of NOX emissions. While most of the guidance issued 
by EPA on what constitutes RACT for stationary sources has been 
directed towards application for VOC sources, much of the guidance is 
also applicable to RACT for stationary sources for NOX (see 
section 4.5 of the NOX Supplement). In addition, pursuant to 
section 183(c), EPA is issuing alternative control technique documents 
(ACTs), that identify alternative controls for all categories of 
stationary sources of NOX. The ACT documents will provide 
information on control technology for stationary sources that emit or 
have the potential to emit 25 tons per year or more of NOX. 
However, the ACTs will not establish a presumptive norm for what is 
considered RACT for stationary sources of NOX.
    In addition, the California Air Resources Board (CARB) is 
developing a guidance document entitled, ``California Clean Air Act 
Guidance, Determination of Reasonably Available Control Technology and 
Best Available Retrofit Control Technology for Institutional, 
Industrial and Commercial Boilers, Steam Generators and Process 
Heaters,'' July 18, 1991. EPA has used CARB's RACT Determination, dated 
July 18, 1991, in evaluating Rule 425.1 for consistency with the CAA's 
RACT requirements. In general, EPA uses the guidance documents cited 
above, as well as other relevant and applicable guidance documents, to 
ensure that submitted NOX RACT rules meet Federal RACT 
requirements and are fully enforceable and strengthen or maintain the 
SIP.
    There is currently no version of Kern County Air Pollution Control 
District Rule 425.1, Hot Mix Asphalt Paving Plants (Oxides of 
Nitrogen), in the SIP. Submitted Rule 425 includes the following 
provisions:
     General provisions including applicability, exemptions, 
and definitions.
     Exhaust emmissions standards for oxides of nitrogen 
(NOX).

[[Page 5467]]

     Compliance 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 
RACT guidance regarding emission limits. Rule 425.1 strengthens the SIP 
through the addition of enforceable measures such as emissions limits, 
record keeping, test methods, definitions, and more stringent 
compliance testing. Because there is no existing rule in the SIP, the 
incorporation of Rule 425.1 into the SIP would decrease the 
NOX emissions allowed by the SIP. A more detailed discussion 
of the sources controlled, the controls required, and justification for 
why these controls represent RACT can be found in the Technical Support 
Document (TSD), dated December 1, 1999, which is available from the 
U.S. EPA, Region IX office.
    EPA has evaluated the submitted rule and has determined that it is 
consistent with the CAA, EPA regulations and EPA policy. Therefore, 
Kern County Air Pollution Control District Rule 425.1 is being proposed 
for approval under section 110(k)(3) of the CAA is 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 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612, Federalism and 12875, Enhancing the 
Intergovernmental Partnership. Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed rule will 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), because it 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. Thus, the requirements of section 6 of the Executive Order 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 and 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 (FRA) 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).

[[Page 5468]]

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 costss 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.

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 record keeping requirements, Volatile 
organic compounds.

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

    Dated: January 21, 2000.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 00-02476 Filed 2-3-00; 8:45 am]
BILLING CODE 6560-50-M