[Federal Register Volume 67, Number 35 (Thursday, February 21, 2002)]
[Proposed Rules]
[Pages 7997-8000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3916]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 253-0321b; FRL-7139-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a conditional approval of revisions to the El 
Dorado County Air Pollution Control District (EDCAPCD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
oxides of nitrogen (NOX) emissions from internal combustion 
engines. We are proposing action on a local rule that regulates these 
emission sources under the Clean Air Act as amended in 1990 (CAA or the 
Act). We are taking comments on this proposal and plan to follow with a 
final action.

DATES: Any comments must arrive by March 25, 2002.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.
    You can inspect copies of the submitted SIP revisions and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see copies of the submitted SIP revisions 
at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
El Dorado County Air Pollution Control District, 2850 Fairlane 
Court, Building C, Placerville, CA 95667.

FOR FURTHER INFORMATION CONTACT: Charnjit Bhullar, Rulemaking Office 
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 972-
3960.

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating this rule?
    B. Does the rule meet the evaluation criteria?
    C. Proposed action and public comment.
III. Background Information
    Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

[[Page 7998]]



                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
               Local agency                  Rule No.             Rule title             Adopted      Submitted
----------------------------------------------------------------------------------------------------------------
EDCAPCD..................................          233   Stationary Internal             09/25/01      11/09/01
                                                          Combustion Engines.
----------------------------------------------------------------------------------------------------------------

    On January 15, 2002, this rule submittal was found to meet the 
completeness criteria in 40 CFR part 51, appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of This Rule?

    On January 13, 2000, we published a final limited approval and 
limited disapproval of a version of this rule that had been submitted 
to EPA on October 20, 1994.

C. What Is the Purpose of the Submitted Rule?

    EDCAPCD Rule 233 establishes NOX emission limits for 
stationary internal combustion engines within the Federal ozone non-
attainment area regulated by EDCAPCD. EPA published a limited approval 
and limited disapproval of a previous version of this rule because the 
following provisions conflicted with section 110 and part D of the Act.
    1. Emission limits were significantly higher than those established 
as Reasonably Available Control Technology (RACT) by CARB.
    2. Annual emission testing of all engines was not required.
    3. Nonresettable fuel or hour meters were not required. The 
submitted revisions are designed primarily to correct these 
deficiencies. The TSD has more information about this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating This Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require RACT for major sources in nonattainment areas (see 
sections 182(b)(2)(a) and 182(f)), and must not relax existing 
requirements (see sections 110(l) and 193). EDCAPCD regulates an ozone 
nonattainment area (see 40 CFR 81.305), so Rule 233 must fulfill RACT.
    Guidance and policy documents that we used to help evaluate 
enforceability and RACT requirements consistently include the 
following:
    1. Issue Relating to VOC Regulation, Cut points, Deficiencies, and 
Deviations (the ``Blue Book''), U.S. EPA, May 25, 1988.
    2. State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble for the Implementation of Title I of the Clean Air Act 
Amendment of 1990 (the ``NOX Supplement to the General 
Preamble''), U.S. EPA, 57 FR 55620, Nov. 25, 1992.
    3. State Implementation Plans for National Primary and Secondary 
Ambient Air Quality Standards, Section 110 of the Clean Air Act (CAA), 
and Plan Requirements for Nonattainment Areas, Title I, Part D of the 
CAA.
    4. Requirement for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR Part 51.
    5. Alternative Control Techniques (ACT) Document--NOX 
Emission from Stationary Reciprocating Internal Combustion Engines 
(EPA-453/R-93-032).
    6. CAPCOA/ARB Proposed Determination of Reasonably Available 
Control Technology and Best Available Retrofit Control Technology for 
Stationary Internal Combustion Engines State of California Air 
Resources Board, December, 1997.

B. Does the Rule Meet the Evaluation Criteria?

    In EPA's January 2000 action on a previous version the Rule, we 
determined that it improved the SIP and fulfilled the relevant 
evaluation criteria except for three deficiencies. The submitted rule 
addresses these deficiencies as follows:
    1. Emission limits have been significantly reduced in section 
233.3(A).
    2. Through an administrative error, the revisions to Rule 233 did 
not clearly require emission testing for all engines. By letter dated 
January 2, 2002, EDCAPCD has stated its intension to revise the rule 
appropriately by July 2002.
    3. A nonresettable fuel and/or hour meter is required in section 
233.5(D).
    The submitted revisions are designed primarily to correct these 
deficiencies. The TSD has more information about this rule.

C. Proposed Action and Public Comment

    A January 2, 2002 letter from the EDCAPCD Air Pollution Control 
Officer stated his intention to submit a commitment through CARB to 
adopt and submit revisions to Rule 233 by July 2002. As authorized in 
section 110(k)(4) of the Act and based on the expectation that we will 
receive this commitment shortly, EPA is proposing a conditional 
approval of the submitted rule to improve the SIP. If finalized, this 
action would incorporate into the SIP both the submitted rule and the 
commitment from CARB to correct the identified deficiency. Pursuant to 
40 CFR 52.31(d)(5), if finalized, this action would also permanently 
terminate all section 179 sanctions, sanctions clocks and section 
110(c) FIP obligations associated with our January 2000 action.
    This conditional approval shall be treated as a disapproval if 
EDCAPCD fails to adopt rule revisions to correct the deficiencies 
within one year. If this rule is disapproved, the stay of sanctions 
will be lifted under section 179 of the Act in accordance with 40 CFR 
52.31. Please see our Interim Final Determination elsewhere in today's 
Federal Register. Note that the submitted rule has been adopted by 
EDCAPCD, and EPA's final conditional approval would not prevent the 
local agency from enforcing it.
    We will accept comments from the public on the proposed conditional 
approval for the next 30 days.

III. Background Information

Why Was This Rule Submitted?

    NOX helps produce ground-level ozone, smog and 
particulate matter which harm human health and the environment. Section 
110(a) of the CAA requires states to submit regulations that control 
NOX emissions. Table 2 lists some of the national milestones 
leading to the submittal of these local agency NOX rules.

                Table 2.--Ozone Nonattainment Milestones
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               Date                                 Event
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March 3, 1978.....................  EPA promulgated a list of ozone
                                     nonattainment areas under the Clean
                                     Air Act as amended in 1977. 43 FR
                                     8964; 40 CFR 81.305.

[[Page 7999]]

 
May 26, 1988......................  EPA notified Governors that parts of
                                     their SIPs were inadequate to
                                     attain and maintain the ozone
                                     standard and requested that they
                                     correct the deficiencies (EPA's SIP-
                                     Call). See section 110(a)(2)(H) of
                                     the pre-amended Act.
November 15, 1990.................  Clean Air Act Amendments of 1990
                                     were enacted. Pub. L. 101-549, 104
                                     Stat. 2399, codified at 42 U.S.C.
                                     7401-7671q.
May 15, 1991......................  Section 182(a)(2)(A) requires that
                                     ozone nonattainment areas correct
                                     deficient RACT rules by this date.
------------------------------------------------------------------------

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulation 
action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13211

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

C. 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.

D. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing and 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 regulations. 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, 
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 
proposed rule.

E. 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 proposed 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. In the spirit 
of Executive Order 13175, and consistent with EPA policy to promote 
communications between EPA and tribal governments, EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

F. 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 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 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.
    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 8000]]

G. 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 proposed action 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 proposed 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.

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.
    EPA believes that VCS are inapplicable to today's proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

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

    Dated: January 23, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-3916 Filed 2-20-02; 8:45 am]
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