[Federal Register Volume 66, Number 151 (Monday, August 6, 2001)]
[Rules and Regulations]
[Pages 40898-40901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19460]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 226-0284; FRL-7008-5]


Revisions to the California State Implementation Plan, Bay Area 
Air Quality Management District and Ventura County Air Pollution 
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the Ventura County Air Pollution Control District 
(VCAPCD) portion of the California State Implementation Plan (SIP) 
concerning particulate matter (PM-10) emissions and carbon monoxide 
(CO) emissions from incineration and from fuel burning equipment, 
respectively. EPA is also finalizing full approval of a revision to the 
Bay Area Air Quality Management District (BAAQMD) concerning tuning 
boilers. The proposed rule was in the Federal Register on March 29, 
2001. Under authority of the Clean Air Act as amended in 1990 (CAA or 
the Act), the final rule approves local rules that regulate these 
emission sources and directs California to correct deficiencies in 
certain rules.

EFFECTIVE DATE: This rule is effective on September 5, 2001.

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 rule revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94105.
Ventura County Air Pollution Control District, 669 County Square 
Drive, Ventura, CA 93003.


FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105; (415) 744-1135.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

[[Page 40899]]

I. Proposed Action

    On March 29, 2001 (66 FR 17131), EPA proposed actions on the rules 
in Table 1 that were submitted for incorporation into the California 
SIP.

                                            TABLE 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency                     Rule #                 Rule title            Adopted     Submitted.
----------------------------------------------------------------------------------------------------------------
BAAQMD.............................  Manual of Procedures,  Boiler, Steam Generator,       09/16/93     07/23/96
                                      volume I, section 5..  and Process Heater Tuning
                                                             Procedure..
VCAPCD.............................  57...................  Combustion Contaminants--      06/14/77     01/21/00
                                                             Specific.
VCAPCD.............................  68...................  Carbon Monoxide...........     06/14/77     01/21/00
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval of VCAPCD Rules 57 and 68, because 
we determined that the rules improve the SIP and are largely consistent 
with the relevant CAA requirements. The limited approval implied that 
these rules were also given a limited disapproval, because some rule 
provisions conflict with section 110 and part D of the CAA. We also 
proposed a full approval of the BAAQMD Manual of Procedures, volume I, 
section 5, because the rule met all the requirements of the CAA. Our 
proposed action contains more information on the rules and our 
evaluation.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. We 
received comments on the VCAPCD rules after the comment period closed, 
but we are considering these comments from the following party:
     Ashley Garrigan, Bryn Mawr College; letter postmarked May 
1, 2001 and received May 4, 2001.
    The comments and our responses are summarized below.
    Comment I: Ms. Garrigan requested clarification of the meaning of 
``These small uncontrolled sources are included in the air quality 
management plan for the District without any credit taken for 
controls.''
    Response: This refers to the District's PM-10 Maintenance 
Attainment Plan. Such a Plan is required, when a District is now in 
attainment with the National Ambient Air Quality Standards (NAAQS) but 
was once in nonattainment, to show what emission reductions through 
controls are needed to maintain attainment. In this case, the District 
does not take any credit for PM-10 emission reduction from controls on 
the exempted sources in order to maintain attainment. Allowing no PM-10 
controls on the exempted sources is consistent with section 110(l) of 
the CAA, which requires that plan revisions would not interfere with 
any applicable requirement concerning attainment or any other 
applicable requirement of the CAA.
    The District is in attainment for CO and has made a demonstration 
that allowing no controls for CO on the exempted sources would be 
consistent with section 110(l) of the CAA.
    Comment II: Ms. Garrigan is concerned that the point of revisions 
is to strengthen the SIP and not weaken it (such as by allowing 
exemptions). Ms. Garrigan is also concerned that any amount of PM-10 
and CO emissions is considered approved when such emissions harm human 
health and the environment.
    Response: Strengthening the SIP is usually the goal of revisions. 
Exemptions are allowed only if they comply with section 110(l) of the 
CAA, thus maintaining attainment. In the case of test jet engines, the 
District granting exemptions is reasonable, due to the experimental 
nature of the test jet engines and the difficulty and cost of applying 
controls.
    EPA is required by the CAA to set NAAQS to protect human health and 
the environment. This implies that, unless the NAAQS are zero, some 
emission of pollutants is ``approved''. We may not approve emissions 
that exceed the NAAQS.

III. EPA Action

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
finalizing a limited approval of VCAPCD Rules 57 and 68. 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 
these rules. This limited disapproval, although not specifically stated 
in the proposed rule, is implied by the limited approval. No sanctions 
under section 179 are associated with this final action, because 
control of these sources is not required for attainment of the NAAQS. 
Note that the submitted rules have been adopted by the VCAPCD, and 
EPA's final limited disapproval does not prevent the local agency from 
enforcing them.
    EPA is also finalizing full approval of BAAQMD Manual of 
Procedures, volume I, section 5.

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.''

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 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 does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13132

    Executive Order 13132, 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

[[Page 40900]]

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 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, because it 
merely acts on 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.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does 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.
    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 
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 costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action acts on 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. 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.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

H. 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. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

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 October 5, 2001. 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).)

[[Page 40901]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: June 20, 2001
Jane Diamond,
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)(239)(i)(E)(7) 
and (c)(278)(i)(C)(2) to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (239) * * *
    (i) * * *
    (E) * * *
    (7) Manual of Procedures, volume I, section 5, adopted on September 
16, 1993.
* * * * *
    (278) * * *
    (i) * * *
    (C) * * *
    (2) Rules 57 and 68, adopted on June 14, 1977.
* * * * *
[FR Doc. 01-19460 Filed 8-3-01; 8:45 am]
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