[Federal Register Volume 65, Number 141 (Friday, July 21, 2000)]
[Rules and Regulations]
[Pages 45297-45299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18436]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 083-0243; FRL-6733-7]


Revisions to the California State Implementation Plan, El Dorado 
County Air Pollution Control District and Kern County Air Pollution 
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing limited approval and limited disapproval of 
revisions to the El Dorado County (EDCAPCD) Air Pollution Control 
District, and Kern County Air Pollution Control District (KCAPCD) 
portions of the California State Implementation Plan (SIP). The actions 
were proposed in the Federal Register on May 5, 1999, and March 22, 
2000, respectively, and concern control of emissions of oxides of 
nitrogen (NOX) from Industrial, Institutional, and 
Commercial Boilers, Steam Generators, and Process Heaters, and 
Stationary Piston Engines. Under authority of the Clean Air Act as 
amended in 1990 (CAA or the Act), this action simultaneously approves 
local rules that regulate these emission sources and directs California 
to correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on August 21, 2000.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, N.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, or
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: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On May 5, 1999 (64 FR 24119), and March 22, 2000 (65 FR 15287), 
respectively, EPA proposed a limited approval and limited disapproval 
of the following rules that were submitted for incorporation into the 
California SIP.

----------------------------------------------------------------------------------------------------------------
             Local agency                 Rule No.               Rule title               Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
EDCAPCD...............................          229  Industrial, Institutional, and        09/27/94     10/20/94
                                                      Commercial Boilers, Steam
                                                      Generators, and Process Heaters.
KCAPCD................................          427  Stationary Piston Engines (Oxides      07/2/98     08/21/98
                                                      of Nitrogen).
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
rules improve the SIP and are largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:
     Alternate Emission Control Plan (AECP) in Section 229.3 
(D) and Rule 427 Section VIII C.2.d.
     Compliance schedule in Section 229.4 (A) and Rule 427 
Section VIII C.1.
     Heat input language in Section 229.3 (A).
     Flow rate meter language in Section 229.3 (C).
     Group testing of engines in Rule 427 Section VIII C.2.d.
     Exemption of engines between 25 and 250 bhp in Rule 427 
Section V.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittals.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. No 
comments were submitted regarding our proposed action on EDCAPCD Rule 
229.
    KCAPCD Rule 427: KCAPCD commented orally that EPA should not object 
to exempting engines between 50 and 250 bhp from NOX 
emission limits or testing requirements. KCAPCD argued that these 
engines are not likely to emit greater than 50 tons/year of 
NOX and are therefore not major sources subject to the RACT 
requirement in serious ozone nonattainment areas like Southeastern Kern 
County. EPA concurs with this comment and withdraws this as a basis for 
disapproving Rule 427 at this time. We note, however, that Southeastern 
Kern County may soon be reclassified as severe nonattainment and thus 
be subject to a 25 ton/year major source threshold. If and when that 
occurs, this exemption will need to be modified since engines smaller 
than 250 bhp are capable of emitting more than 25 tons/year 
NOX.

III. EPA Action

    No comments were submitted that change our assessment of the rules 
as described in our proposed action except for the comment discussed 
above. Therefore, as authorized in sections 110(k)(3) and 301(a) of the 
Act, EPA is finalizing a limited approval of the submitted rules. This 
action incorporates the submitted rules into the California SIP, 
including those provisions identified as deficient. As authorized under 
section 110(k)(3), EPA is simultaneously finalizing a limited 
disapproval of the rules. As a result, sanctions will be imposed unless 
EPA approves subsequent SIP revisions that correct the rules 
deficiencies within 18 months of the effective date of this action. 
These sanctions will be imposed under section 179 of the Act according 
to 40 CFR 52.31. In addition, EPA must promulgate a federal 
implementation plan (FIP) under section 110(c) unless we approve 
subsequent SIP revisions that correct the rules deficiencies within 24 
months. Note that the submitted rules have been adopted by the El 
Dorado County Air Pollution Control District and Kern County Air 
Pollution Control District, and EPA's final limited disapproval does 
not prevent the local agency from enforcing them.

IV. Administrative Requirements

A. Executive Order 12866

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

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B. Executive Order 13045

    Executive Order 13045, entitled 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 rules on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    The rules are not subject to Executive Order 13045 because they do 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. 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 affects 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. If the mandate is unfunded, 
EPA must 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 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 Executive Order 13084 
do not apply to the rules.

D. Executive Order 13132

    Executive Order 13121, entitled 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.
    The rules 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 the 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.
    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 act on 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.
    EPA's disapproval of the state request under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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

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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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. The rules are not ``major'' rules as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. 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 September 19, 2000. Filing a 
petition for reconsideration by the Administrator of the final rules 
does not affect the finality of the 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 
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 compounds.

    Dated: June 7, 2000.
Felicia Marcus,
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) 
(203)(i)(A)(2) and (c) (230)(i)(C)(2) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (203) * * *
    (i) * * *
    (A) * * *
    (2) Rule 229 adopted on September 27, 1994.
* * * * *
    (230) * * *
    (i) * * *
    (C) * * *
    (2) Rule 427 adopted on July 2, 1998.
* * * * *
[FR Doc. 00-18436 Filed 7-20-00; 8:45 am]
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