[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Proposed Rules]
[Pages 15287-15290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7125]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 214-0191; FRL-6563-2]


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.

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SUMMARY: EPA is proposing a limited approval and a simultaneous limited 
disapproval of revisions to the California State Implementation Plan 
(SIP) for the Kern County Air Pollution Control District (KCAPCD). The 
revisions concern Rule 427, stationary piston engines, for the control 
of oxides of nitrogen (NOX) emissions.
    The intended effect of proposing limited approval and a 
simultaneous limited disapproval of the 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 the 
proposed rule will incorporate the rule into the federally approved 
SIP. EPA has evaluated the rule and is proposing a limited approval and 
a simultaneous limited disapproval under

[[Page 15288]]

provisions of the CAA regarding EPA action on SIP submittals and 
general rulemaking authority because these revisions do not fully meet 
the CAA provisions regarding plan submissions and requirements for 
nonattainment areas.

DATES: Comments must be received on or before April 21, 2000.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking 
Office, AIR-4, Air Division, U.S. 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 are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule is also available for 
inspection at the following locations:

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
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 limited approval and a simultaneous 
limited disapproval into the California SIP is Kern County Air 
Pollution Control District (KCAPCD) Rule 427, Stationary Piston Engines 
(Oxides of Nitrogen). Rule 427 was submitted by the State of California 
to EPA on August 21, 1998.

II. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 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 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 November 25, 1992, action 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 
compounds (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.
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    \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).
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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 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 SIP 
revisions require 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 427, Stationary Piston 
Engines (Oxides of Nitrogen), adopted by the KCAPCD, on July 2, 1998. 
The State of California submitted Rule 427 to EPA on August 21, 1998. 
Rule 427 was found to be complete on October 2, 1998, pursuant to EPA's 
completeness criteria that are set forth in 40 CFR part 51, appendix 
V.\2\
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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. KCAPCD Rule 427 specifies NOX emission 
standards 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\
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    \3\ ``Issues Relating to VOC regulation Cutpoints, Deficiencies, 
and Deviation, 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 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 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 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, ``Proposed Determination of 
Reasonably Available Control Technology and Best Available Retrofit 
Control Technology for Stationary Internal Combustion Engines,'' Dec. 
3, 1997. EPA has used CARB's proposed RACT Determination, dated Dec. 3, 
1997, in evaluating Rule 427, for consistency with the CAA's RACT 
requirements while awaiting a final determination. 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

[[Page 15289]]

RACT rules meet Federal RACT requirements and are fully enforceable and 
strengthen or maintain the SIP.
    There is currently a January 25, 1996, version of Rule 427, 
Stationary Piston Engines (Oxides of Nitrogen), in the SIP.
    Submitted Rule 427 includes the following provisions:
     General provisions including applicability, exemptions, 
and definitions.
     Exhaust emissions standards for oxides of nitrogen 
(NOX).
     Compliance and monitoring requirements including 
compliance schedule, reporting requirements, monitoring and 
recordkeeping, and test methods.
    Submitted Rule 427 contains the following significant modifications 
from the 1996 version:
     Exempts low use rate engines.
     Allows and clarifies representative engine testing.
     Clarifies recordkeeping requirements.
    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, recordkeeping, and compliance testing in addition to RACT 
guidance regarding emission limits.
    EPA has evaluated Kern County Air Pollution Control District Rule 
427 for consistency with the CAA, EPA regulations, and EPA policy and 
has found that KCAPCD Rule 427 contains the following deficiencies, 
which must be corrected pursuant to the section 182(a)(2)(A) 
requirement of part D of the CAA.
    Section V: Engines between 50 and 250 bhp are not subject to 
NOX emission limits or testing requirements. Since such 
engines can easily emit at least 25 tons per year of NOX 
(the major source threshold for KACPCD), this rule does not fulfill the 
CAA section 182 requirement to implement RACT for all major sources. 
Although a similar version of section V was previously approved into 
the SIP, it needs to be modified to implement RACT. Emission limits 
should be included for engines larger than 50 bhp (as exist, for 
example, in analogous rules in other California Districts) and groups 
of smaller engines that total 25 tons per year of NOX 
emissions. Annual NOX emission tests and operational non-
resettable totalizing time or fuel meters should also be required.
    Section VIII:
    C.1: The extended compliance test schedule: Allows for once every 
two years instead of annual source testing. To ensure enforceability of 
the emission limits and early identification of violations, the 
frequency of source testing should be increased to once every 8760 
hours of operation or every two years, whichever is shorter, as 
recommended in the proposed CARB RACT Determination.
    C.2.d: Group testing of engines: This provision relaxes the general 
requirement to annually test each affected engine by allowing testing 
of a representative sample of engines. Such representative sampling 
provisions must be carefully designed to assure consistency with RACT 
and enforceability requirements of the Act. We believe that addition of 
the following elements to the representative sampling requirements of 
the rule would assure consistency with enforceability and RACT 
requirements.
     The EPA policy provisions require, among other things, a 
10 percent (%) or greater reduction in emissions for each individual 
engine beyond the emission limits established in compliance with 
section V.
     The number of engines tested should be the greater of 
either one engine, or one third of all identical engines in the group. 
The engines must be rotated in such a way that all engines are tested 
in a three year period.
    A detailed discussion of these deficiencies can be found in the 
Technical Support Document for Rule 427, dated December 1, 1999, which 
is available from the U.S. EPA, Region IX office. Because of these 
deficiencies, EPA cannot grant approval of the rule under section 
110(k)(3) and part D. In order to strengthen the SIP, EPA is proposing 
a limited approval and a simultaneous limited disapproval of KCAPCD's 
submitted Rule 427 under sections 110(k)(3) and 301(a) of the CAA 
because it contains deficiencies which must be corrected in order to 
fully meet the requirements of sections 182(a)(2), 182(b)(2), 182(f), 
of part D of the CAA. Under section 179(a)(2), if the Administrator 
disapproves a submission under section 110(k) for an area designated 
nonattainment, based on the submission's failure to meet one or more of 
the elements required by the Act, the Administrator must apply one of 
the sanctions set forth in section 179(b) unless the deficiency has 
been corrected within 18 months of such disapproval. Section 179(b) 
provides two sanctions available to the Administrator: highway funding 
and offsets. The 18 month period referred to in section 179(a) will 
begin on the effective date of EPA's final disapproval. Moreover, the 
final disapproval triggers the Federal implementation plan (FIP) 
requirement under section 110(c). It should be noted that the rule 
covered by this document has been adopted by the Kern County Air 
Pollution Control District and is currently in effect in the Kern 
County Air Pollution Control District. EPA's final disapproval action 
will not prevent the Kern County Air Pollution Control District or EPA 
from enforcing the rule.

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 does 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

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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. The rule is 
not subject to Executive Order 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 
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. The proposed 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.

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: March 10, 2000.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 00-7125 Filed 3-21-00; 8:45 am]
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