[Federal Register Volume 65, Number 50 (Tuesday, March 14, 2000)]
[Rules and Regulations]
[Pages 13694-13697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6094]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 200-0217; FRL-6550-4]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; South Coast 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 rules 
from the South Coast Air Quality Management District (SCAQMD). These 
revisions concern the New Source Review requirements and the 
methodology for calculating facility allocations for oxides of nitrogen 
(NOX) and oxides of sulfur (SOX) for sources 
subject to the Regional Clean Air Incentives Market (RECLAIM) program 
in the SCAQMD. This approval action will incorporate these rules into 
the Federally approved SIP. The intended effect of approving these 
rules is to regulate the construction and modification of stationary 
sources and the calculation of RECLAIM facility allocations 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 these 
revisions into the California SIP under provisions of the CAA regarding 
EPA action on SIP submittals, SIPs for national primary and secondary 
ambient air quality standards and plan requirements for permitting in 
nonattainment areas.

DATES: This rule is effective on April 28, 2000 without further notice, 
unless EPA receives adverse comments by March 29, 2000. If EPA receives 
such comment, 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 revisions and of 
EPA's evaluation report for each rule are available for public 
inspection at EPA's Region IX office during normal business hours. 
Copies of the submitted rule revisions 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;
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;
South Coast Air Quality Management District 21865 E. Copley Drive 
Diamond Bar, CA 91765-4182.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 
744-1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being approved into the California SIP include: South 
Coast Air Quality Management District (SCAQMD) Rule 2002--Allocations 
for Oxides of Nitrogen (NOX) and Oxides of Sulfur 
(SOX), and Rule 2005--New Source Review for RECLAIM. These 
rules were submitted by the California Air Resources Board (CARB) to 
EPA on August 22, 1997, and July 23, 1999, respectively. Rule 2002 
establishes the methodology for calculating initial facility 
allocations for NOX and SOX sources subject to 
the requirements of the RECLAIM program. Rule 2005 sets forth the 
preconstruction review requirements for new facilities subject to the 
requirements of the RECLAIM program, for modifications to RECLAIM 
facilities, and for facilities that increase their allocations to a 
level greater than their starting allocation plus non-tradable credits.

II. Background

    Rule 2002 was initially adopted by the South Coast Air Quality 
Management District Board on October 15, 1993 and approved by EPA into 
the California SIP on November 8, 1996 (61 FR 57775). The SCAQMD Board 
amended Rule 2002 on December 7, 1995; July 12, 1996 and February 14, 
1997. All of the above versions of Rule 2002 have been submitted to EPA 
for SIP approval. On June 15, 1998, EPA approved the December 7, 1995 
version of Rule 2002 into the California SIP (63 FR 32621). Today EPA 
is taking action on the February 14, 1997 version of Rule 2002.
    Rule 2005 was also initially adopted by the South Coast Air Quality 
Management District Board on October 15, 1993 and approved by EPA into 
the California SIP on November 8, 1996 (61 FR 57775). The SCAQMD Board 
adopted revisions to Rule 2005 on December 7, 1995; May 10, 1996; July 
12, 1996; February 14, 1997 and most recently, April 9, 1999. All of 
the above versions of Rule 2005 have been submitted to EPA for SIP 
approval, except the December 7, 1995 version. On June 15, 1998, EPA 
approved the May 10, 1996 version of Rule 2005 into the California SIP 
(63 FR 32621). Today EPA is taking action on the April 9, 1999 version 
of Rule 2005.
    We evaluated Rules 2002 and 2005 for consistency with the CAA, EPA 
regulations, and EPA policy. We have

[[Page 13695]]

found that the revisions made to Rules 2002 and 2005 meet the 
applicable EPA requirements.
    On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA or 
the Act) were enacted. Public Law 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 the 
requirements of section 182(f). The NOX supplement 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 section 182(c), (d), and (e)) 
as are applied to major stationary sources of volatile organic 
compounds (VOCs), in moderate or above ozone nonattainment areas. The 
South Coast Air Quality Management District is classified as 
extreme;\1\ therefore this area was subject to the RACT requirements of 
section 182(b)(2), cited below, and the November 15, 1992 deadline.
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    \1\ The South Coast Air Quality Management District 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 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 techniques 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 rules covering NOX sources and submitted as SIP 
revisions are expected to require final installation of the actual 
NOX controls as expeditiously as practicable, but no later 
than May 31, 1995.
    NOX emissions contribute to the production of ground 
level ozone and smog. The subject rules were adopted as part of 
SCAQMD's efforts to achieve the National Ambient Air Quality Standards 
(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 Action

    On June 15, 1998, EPA approved into the SIP a version of Rule 
2002--Allocations for Oxides of Nitrogen (NOX) and Oxides of 
Sulfur (SOX) that had been adopted by SCAQMD on December 7, 
1995. Revisions to this rule were subsequently adopted by SCAQMD on 
July 12, 1996 and February 14, 1997 and submitted to EPA. While EPA can 
only act on the most recently submitted version, EPA reviewed relevant 
materials associated with superseded versions.
    SCAQMD submitted Rule 2002--Allocations for Oxides of Nitrogen 
(NOX) and Oxides of Sulfur (SOX) was revised to 
clarify that the SCAQMD is not required to print out the entire 
Facility Permit when the Facility Permit is reissued to reflect 
necessary updates. Only updated sections of the reissued Facility 
Permit need be printed out at the beginning of each compliance year. 
Language has also been added to Rule 2002 that stipulates that the 
annually reissued permit shall list a facility's initial starting 
allocation, starting Non-Tradable Credits (NTC), and the facility's 
allocations as well as any RECLAIM Trading Credits (RTCs) obtained 
pursuant to SCAQMD Rule 2007 for the next fifteen years. Rule 2002 
language has also been modified to replace incorrect emissions factors 
or to add emissions factors for some source categories. These source 
categories include fluid catalytic cracking units (FCCUs), delacquering 
furnaces, pot furnaces, new and/or modified boilers, and exempted 
internal combustion engines (ICEs). Unnecessary emissions factors have 
been removed from Rule 2002 for the following categories: ICE Large 
Bore Engines, Reported Value, Waste Gas Flare, Facility Surveyed 
Emissions Inventory, Petroleum Refining, and Petroleum Refining 
Blowdown Systems. Finally, language has been added to Rule 2002 so that 
the year 2003 allocation level will continue for years subsequent to 
2010. A more detailed discussion of these modifications to Rule 2002 
can be found in the Technical Support Document (TSD) for Rule 2002 
dated January 10, 2000.
    On June 15, 1998, EPA approved into the SIP a version of Rule 
2005--New Source Review for RECLAIM that had been adopted by SCAQMD on 
May 10, 1996. Revisions to this rule were subsequently adopted by the 
SCAQMD Board on July 12, 1996, February 14, 1997, and April 9, 1999 and 
submitted to EPA. While EPA can only act on the most recently submitted 
version, EPA reviewed relevant materials associated with superseded 
versions.
    SCAQMD submitted Rule 2005--New Source Review for RECLAIM was 
revised to clarify New Source Review requirements for a change of 
operator, and to clarify that the current requirements for 
modifications to existing facilities include modifications to 
facilities that received all permits to construct after January 1, 
1994. A more detailed discussion of these modifications to Rule 2005 
can be found in the Technical Support Document (TSD) for Rule 2005 
dated January 10, 2000.
    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 this action, appears in various EPA policy 
guidance documents.\2\ Among these provisions is the requirement that a 
NOX rule must, at a minimum, provide for the implementation 
of RACT for stationary sources of NOX emissions.
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    \2\ 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 
document'' (Blue Book) (notice of availability was published in the 
Federal Register on May 25, 1988).
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    For the purposes of assisting State and local agencies in 
developing NOX RACT rules, EPA prepared the NOX 
Supplement to the General Preamble, cited above (57 FR 55620). In the 
NOX Supplement, EPA provides 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 of 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 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

[[Page 13696]]

sources of NOX. 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.
    EPA has evaluated the submitted rules and has determined that the 
revisions made to these rules are consistent with the CAA, EPA 
regulations and EPA policy. Therefore, South Coast Air Quality 
Management District's Rules 2002 and 2005 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 these rules 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 revisions should 
adverse comments be filed. These rules will be effective April 28, 2000 
without further notice unless the Agency receives adverse comments by 
March 29, 2000.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rules 
commented on will not take effect. All public comments received will 
then be addressed in subsequent final rules based on the proposed 
rules. The EPA will not institute a second comment period on these 
rules. Any parties interested in commenting on these rules should do so 
at this time. If no such comments are received, the public is advised 
that these rules will be effective on April 28, 2000 and no further 
action will be taken on the proposed rules.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 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 Executive 
Order 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 
Executive Order 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 
Executive Order 13045 because it is 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 
Executive Order 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 a 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

[[Page 13697]]

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 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 April 28, 2000. 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, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compound.

    Dated: January 21, 2000.
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 paragraphs (c)(268) and 
(271) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (268) New and amended regulations for the following agencies were 
submitted on July 23, 1999, by the Governor's designee.
    (i) Incorporation by reference.
    (A) South Coast Air Quality Management District.
    (1) Rule 2005 adopted on April 9, 1999.
* * * * *
    (271) New and amended regulations for the following agencies were 
submitted on August 22, 1997, by the Governor's designee.
    (i) Incorporation by reference.
    (A) South Coast Air Quality Management District.
    (1) Rule 2002 adopted on February 14, 1997.
* * * * *
[FR Doc. 00-6094 Filed 3-13-00; 8:45 am]
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