[Federal Register Volume 67, Number 40 (Thursday, February 28, 2002)]
[Rules and Regulations]
[Pages 9209-9214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4643]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 169-0323; FRL-7148-8]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified 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 San Joaquin Valley Unified Air Pollution Control 
District portion of the California State Implementation Plan (SIP). 
This action was proposed in the Federal Register on September 14, 1998 
and concerns oxides of nitrogen (NOX) emissions from 
internal combustion engines; stationary gas turbines; and from boilers, 
steam generators, and process heaters. 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 April 1, 2002.

ADDRESSES: You can inspect copies of the administrative record for this 
action

[[Page 9210]]

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, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 East 
Gettysburg Avenue, Fresno, California 93726-0244

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office 
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-
4121.

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

I. Proposed Action

    On September 14, 1998 (63 FR 49053), 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
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.............................         4305  Boilers, Steam Generators,          12/19/96        03/03/97
                                                     and Process Heaters.
SJVUAPCD.............................         4351  Boilers, Steam Generators,          10/19/95        03/26/96
                                                     and Process Heaters--
                                                     Reasonably Available
                                                     Control Technology.
SJVUAPCD.............................         4701  Internal Combustion Engines.        12/19/96        03/10/98
SJVUAPCD.............................         4703  Stationary Gas Turbines.....        10/16/97        03/10/98
----------------------------------------------------------------------------------------------------------------

    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:
    1. Exemption from regulation, or exemption from federal 
enforceability of regulation, of facilities located west of Interstate 
Highway 5 in Fresno, Kern, or Kings county (the ``West Side 
Exemption'').
    2. Automatic exemption from regulation of emissions which occur 
during start-up, shutdown, or breakdown conditions.
    3. The application of the four rules and the circumstances under 
which sources might be exempt from the rules.
    4. The absence of explicitly stated averaging times for emissions 
concentration limits.
    5. The absence of interim parametric monitoring in instances of 
deferred source testing.
    6. The overly lenient use of representative testing to fulfill 
monitoring requirements.
    7. The lack of a requirement for a 10% additional reduction of 
emissions beyond established baselines as an environmental benefit when 
sources meet rule requirements via an alternative emission control 
plan.
    8. The failure to require physical modification of an exempted unit 
to assure its operation at or below the rule application capacity 
threshold when the unit's nameplate capacity exceeds this threshold.
    9. The failure to require source tests to be performed on units 
using each fuel which is allowed to be burned in that unit.
    10. The lack of source test requirements for certain units through 
May 31, 1999.
    11. The lack of specificity as to what information is required to 
be recorded and maintained as part of recordkeeping requirements.
    12. The frequency of required compliance testing for internal 
combustion engines under Rule 4701.
    13. The lack of specificity as to what operating records and 
support documentation are to be maintained by owners claiming exemption 
to the requirements of Rule 4701.
    14. The allowance until May 31, 2001 for Reasonably Available 
Control Technology (``RACT'') compliance for certain internal 
combustion engines under Rule 4701.
    15. Use of 14 day averaging to determine compliance under the 
alternative emission control plan provisions of Rule 4701.
    16. Excessive director's discretion in specifying what method is to 
be used to determine the applicable conversion factor from fuel use to 
engine emissions in the alternative emission control plan provisions of 
Rule 4701.
    17. The inclusion of the factor AEMotor to account for 
emissions avoided by replacing internal combustion engines with 
electric motors.
    18. The lack of reference to continuous emission monitoring system 
requirements and reporting requirements of 40 CFR part 60.
    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. The 
comment period was subsequently extended for an additional 30 days. 
During and after the 60-day comment period, we received comments from 
the following parties.
    1. Mark Boese, San Joaquin Valley Unified Air Pollution Control 
District (``SJVUAPCD'' or ``the District''); letter dated November 10, 
1998.
    2. Marc Chytilo, Environmental Defense Center (``EDC''); letter 
dated November 13, 1998.
    3. William A. Brommelsiek, Chevron USA Production Company 
(``CUPC''); letter dated November 13, 1998.
    4. Malcolm C. Weiss, McClintock, Weston, Benshoof, Rochefort, 
Rubalcava, & MacCuish LLP (``MWB''); letter dated November 12, 1998.
    5. David R. Farabee, Pillsbury, Madison, & Sutro LLP (``PMS''); 
letter dated November 13, 1998.
    6. Bruce Nilles, Earthjustice, email dated November 14, 2001.
    The letter from EDC expressed unequivocal support for our proposed 
action. The letter from CUPC concurred with and incorporated by 
reference the comments submitted by MWB. The email from Earthjustice 
noted the exemption in Rule 4701 for engines used in agricultural 
production and requested that this exemption be added to the rule 
provisions determined by EPA to be deficient. Since this comment was 
received well after the close of the comment period, EPA simply 
acknowledges it in the present rulemaking and will defer any 
determination of whether the agricultural exemption fails to implement 
CAA requirements until such time as the State of California submits a 
revised version of this rule. The remainder of the comments and our 
responses are summarized below.

[[Page 9211]]

    Comment: SJVUAPCD commented on a number of instances where EPA 
found that the rules should be made applicable to more sources. These 
instances include sections 4.1.5 and 5.2 of Rule 4305; and section 3.11 
of Rule 4701. SJVUAPCD objected to our findings by referring to their 
cost effectiveness analyses which they performed while developing these 
rules. These analyses were based on a cost effectiveness threshold of 
$9700 per ton of NOX reduced, and SJVUAPCD objected to our 
proposed requirement that their rules be made applicable to additional 
sources on the grounds that to do so would incur costs to sources that 
exceed SJVUAPCD's threshold.
    Response: SJVUAPCD provided no information on how and when they 
selected $9,700 per ton NOX reduced as a cost effectiveness 
threshold for the subject rules. We believe this figure may have been 
generated originally by the South Coast Air Quality Management District 
in the 1980s and has no link to applicable RACT or attainment 
requirements. In evaluating RACT, we have reviewed analogous 
requirements contained in other District, state and federal rules and 
guidance including RACT determinations developed by the California Air 
Resources Board (CARB). Relevant CARB RACT determinations, for example, 
incorporate cost effectiveness thresholds as high as $24,000/ton. We 
retain the specified deficiencies as proposed, but acknowledge that 
SJVUAPCD may be able to correct them by demonstrating local 
circumstances that justify alternative RACT limits.
    Comment: SJVUAPCD commented on EPA's finding that the emission 
limits in section 5.1.3 of Rule 4701 should be made more stringent. 
Again SJVUAPCD's objection was based on their cost effectiveness 
threshold of $9700 per ton of NOX reduced.
    Response: Again, we have reviewed analogous requirements contained 
in other District, state and federal rules and guidance including RACT 
determinations developed by CARB and compared these to the limits in 
section 5.1.3. We retain the specified deficiencies as proposed, but 
acknowledge that SJVUAPCD may be able to correct them by demonstrating 
local circumstances that justify alternative RACT limits.
    Comment: SJVUAPCD objected to our requirement that an alternate 
emissions limit be applicable during natural gas curtailment on the 
grounds that this would necessitate additional emissions testing. Also 
SJVUAPCD stated that gas curtailments can last longer than the 168 
hours allowed by EPA.
    Response: EPA does not intend that additional source testing be 
required and withdraws our comment to this effect in regard to section 
6.3 of Rule 4351. However, if gas curtailment extends beyond 168 hours 
of operation per year EPA does require that the standard emissions 
limitations for non-gaseous fuel firing be met.
    Comment: SJVUAPCD objected to our disallowance of their exemption 
of sources that operate only during winter months.
    Response: The CAA requires that RACT level of controls be 
implemented at major sources of NOX year-round. This 
requirement of the CAA is addressed in a March 30, 1994 memorandum 
``Nitrogen Oxides Questions from the Ohio EPA,'' U.S. EPA, Ozone/Carbon 
Monoxide Programs Branch. The EPA's RACT guidance for volatile organic 
compounds (VOC) states that seasonal controls are generally not allowed 
(EPA clarification to Appendix D of the November 24, 1987 Federal 
Register, ``Issues Relating to VOC Regulations Cutpoints, Deficiencies, 
and Deviations,'' revised January 1, 1990). As stated in the 
NOX Supplement to the General Preamble (57 FR 55625, 
November 25, 1992), the VOC RACT guidance is generally applicable to 
NOX RACT. Thus the limitation on seasonal controls also 
applies to NOX RACT.
    Comment: SJVUAPCD objected to our requirement that averaging times 
for emissions measurements be explicitly stated in the rules.
    Response: EPA believes that an explicit averaging time is necessary 
in order that emissions limits be enforceable on a continuous basis. 
This is consistent with the CARB RACT determination as well as other 
SIP-approved rules for these source categories.
    Comment: SJVUAPCD commented that the excess emissions provisions in 
section 5.5.2 of Rule 4305 are consistent with EPA policy.
    Response: On September 20, 1999, EPA issued a policy guidance 
document entitled ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown,'' U.S. EPA, 
Office of Air Quality Planning and Standards. This guidance document is 
intended to assist states in drafting excess emissions provisions into 
SIPs that are consistent with the requirements of the federal Clean Air 
Act. Generally speaking, automatic exemptions from emissions limits are 
allowed during start-up and shutdown only insofar as control 
technologies or strategies are shown to be technically infeasible 
during these periods and are not allowed during malfunctions. The 
existing exemptions in Rule 4305 apply during malfunction and are not 
time-limited during start-up and shutdown and thus do not meet the 
requirements of the Act as interpreted by EPA policy.
    Comment: SJVUAPCD expressed concern that EPA's requirement for 
equipment tune-ups between source tests may result in setting operating 
parameters at different levels than were established during source 
tests.
    Response: EPA believes that equipment tune-ups, properly conducted, 
will result in decreased emissions. See, for example, the procedures 
described in Attachment 1 to the CARB Determination of Reasonably 
Available Control Technology for Industrial, Institutional, and 
Commercial Boilers, Steam Generators, and Process Heaters dated July 
18, 1991.
    Comment: SJVUAPCD expressed concern that requiring source tests for 
each fuel burned would be impractical since some fuels are burned only 
as a back-up during natural gas curtailment and then only for a limited 
period of time.
    Response: EPA agrees with SJVUAPCD's concern and withdraws this 
requirement for section 6.3 of Rule 4351.
    Comment: SJVUAPCD objected to EPA's disallowance of representative 
testing for internal combustion engines.
    Response: EPA continues to disapprove of representative testing for 
internal combustion engines due to the inherently high variability of 
emissions from units within this source category. This is consistent 
with other rulemakings EPA has promulgated for this source category.
    Comment: SJVUAPCD stated that 14-day averaging is appropriate for 
evaluating compliance with an Alternative Emissions Compliance Plan 
(``AECP'') as opposed to a shorter averaging time as would be required 
for a standard compliance determination.
    Response: EPA's interpretation of CAA requirements with respect to 
long-term (greater than 24 hours) averaging of emissions is contained 
in section 16.13 of our January 2001 Economic Incentive Program 
guidance as well as in the January 20, 1984 memorandum ``Averaging 
Times for Compliance with VOC Emission Limits--SIP Revision Policy'', 
U.S. EPA Office of Air Quality Planning and Standards. Any State that 
wishes to allow long-term averaging for compliance evaluation for RACT 
limits must include in the SIP submittal a justification that the long-
term average is needed and demonstrate that

[[Page 9212]]

averaging will not interfere with attainment or other requirements of 
the Act. Since the submittal for Rule 4701 does not contain this 
information, EPA cannot approve the long-term averaging provisions in 
section 8.0 of Rule 4701.
    Comment: SJVUAPCD explained that the emission factor EFi 
in section 8.3.2 of Rule 4701 is the actual NOX emissions as 
determined by the most recent source test and not a general emission 
factor as was EPA's concern.
    Response: EPA agrees and withdraws our previous comment concerning 
section 8.3.2 of Rule 4701.
    Comment: SJVUAPCD stated that emissions reductions obtained when 
engines are replaced with an electric motor should be allowed to be 
included in an AECP so long as the engines are not being replaced 
solely to comply with RACT limits.
    Response: EPA agrees and withdraws our previous comment concerning 
section 8.4 of Rule 4701.
    Comment: MWB and PMS assert that the EPA's determination that 
NOX sources may contribute significantly to PM-10 levels 
which exceed the standard in the area and that, therefore, Reasonably 
Available Control Measures (``RACM'') are required at West Side sources 
is contrary to documentation provided by the SJVUAPCD.
    Response: The SJVUAPCD presented their PM-10 Attainment 
Demonstration Plan Progress Report 1997-1999 (``Progress Report'') to a 
hearing of their Governing Board on June 15, 2000. The Progress Report 
states that during winter months secondary ammonium nitrate is the 
largest contributor to PM mass and that the core sites were found to be 
ammonia rich with the formation of secondary ammonium nitrate limited 
by the amount of NOX rather than ammonia. This finding is 
consistent with our September 14, 1998 Proposed Rulemaking. RACM is 
required for the West Side NOX sources because section 
189(a)(1)(C) and section 189(e) of the Act require RACM at major 
stationary sources of PM-10 precursors in PM-10 nonattainment areas 
independent of separate ozone attainment requirements. The SJVUAPCD has 
not demonstrated to EPA that the West Side sources do not contribute 
significantly to PM-10 levels which exceed the standard in the area.
    Comment: MWB asserts that the West Side Exemption is required under 
state law since emissions from that area do not impact other portions 
of the SJVUAPCD.
    Response: Without commenting on the provisions of California state 
law, EPA notes that our interpretation of the CAA requirements 
applicable to the subject Rules does not rest on any finding regarding 
transport of pollutants within the SJVUAPCD.
    Comment: MWB asserts that EPA does not have authority under the CAA 
to grant limited approval and simultaneous limited disapproval of a 
Rule. MWB further expresses confusion over the effect of such an 
action.
    Response: While the Act does not expressly provide for limited 
approvals, EPA is using its ``gap-filling'' authority under section 
301(a) of the Act in conjunction with the section 110(k)(3) approval 
provision to interpret the Act to provide for this type of approval 
action. EPA routinely publishes limited approval/limited disapproval 
actions (e.g. we did so for nine different rules in the SJVUAPCD in the 
year 2000 alone). Under this action EPA approves and can enforce the 
entire rule as submitted, even those portions that prohibit full 
approval. For example, upon the effective date of this final 
rulemaking, the West Side Exemption becomes part of the SIP and will 
remain in the SIP until such time as EPA approves a SIP revision 
removing the exemption or EPA promulgates a FIP. The disapproval only 
applies to whether the submittal meets specific requirements of the Act 
and does not affect incorporation of the rule into the approved, 
federally enforceable SIP.
    Comment: MWB and PMS assert that since the Rules were submitted to 
EPA as part of the ozone SIP, EPA lacks the authority to consider 
whether the provisions of the Rules are sufficient to meet requirements 
of the CAA related to PM-10 and that, further, this is not the proper 
time to consider CAA requirements related to PM-10.
    Response: As stated in the September 14, 1998 Notice of Proposed 
Rulemaking, section 189(a)(1)(C) of the Act requires that RACM for the 
control of PM-10 be implemented in moderate nonattainment areas 
(including the SJVUAPCD) by December 10, 1993. These control 
requirements also apply to major stationary sources of PM-10 precursors 
(including NOX) under section 189(e) of the Act unless the 
EPA determines that such sources do not contribute significantly to PM-
10 levels which exceed the standard in the area. Section 172(c)(1) 
provides that RACM shall include, at a minimum, those reductions in 
emissions from existing sources as may be obtained through the adoption 
of RACT. The four subject Rules contain provisions waiving RACT 
requirements under the SIP for facilities on the West Side. This 
constitutes a failure to implement RACM at these facilities as required 
under section 189(a)(1)(C) of the Act. Section 110(l) of the Act 
forbids EPA from approving SIP revisions which would interfere with any 
applicable requirement, including section 189(a)(1)(C). For this reason 
EPA must disapprove the West Side Exemption.
    Comment: MWB asserts that EPA has inappropriately concluded that 
Best Available Retrofit Control Technology (``BARCT''), as required 
under state law, is the same as RACT.
    Response: EPA has determined that the control requirements waived 
under the West Side Exemption are reasonably available. This 
determination was made by comparing these requirements with those 
implemented elsewhere in the SJVUAPCD and the State of California, as 
well as by referring to applicable Determinations of Reasonably 
Available Control Technology published by the California Air Resources 
Board. We agree with the commentor that states can adopt requirements 
more stringent than those required by federal RACT. The SJVUAPCD could, 
theoretically, demonstrate that NOX emission limits 
currently applied to the east-side sources are more stringent than 
RACT, and are therefore not needed to fulfill RACT for the West Side 
sources. However, some level of control beyond the existing full 
exemption for the West Side sources is clearly needed to fulfill RACT.
    Comment: MWB and PMS noted that EPA objected to certain of the 
compliance deadlines in Rule 4701. MWB and PMS assert that it would be 
impractical to accelerate these deadlines.
    Response: EPA notes that the deadlines to which the commentors 
refer have now passed rendering moot this particular objection by EPA.
    Comment: MWB and PMS assert that the District has shown, through 
modeling, that the reduction of NOX emissions from West Side 
sources would not contribute to the attainment of the ozone National 
Ambient Air Quality Standards (``NAAQS'') in the District and that 
therefore the West Side Exemption is consistent with CAA requirements 
for ozone.
    Response: Since our September 14, 1998 Notice of Proposed 
Rulemaking, EPA on November 8, 2001 (66 FR 56476), published a final 
rulemaking action reclassifying the San Joaquin Valley Ozone 
Nonattainment Area from serious to severe nonattainment because the 
area was unable to attain the ozone standard by the serious area 
deadline of 1999. This indicates that the previous control strategy and 
modeling that supported the West Side Exemption were inadequate to 
attain the standard by the applicable attainment date and that 
substantial additional reductions of

[[Page 9213]]

ozone precursors (NOX and/or VOC) will be necessary to 
achieve attainment of the ozone NAAQS.

III. EPA Action

    Two of the rule provisions listed above as being in conflict with 
the Act included compliance dates that we proposed as deficient for 
being too far in the future. However, both of those dates have now 
passed so those issues are moot. The relevant requirements are found in 
section 6.3 of Rule 4351 and section 7.3 of Rule 4701. As stated in the 
above responses, there are three specific instances where we agree with 
SJVUAPCD's comments and therefore withdraw our proposed finding that 
the subject rule provisions are deficient. These are found in section 
6.3 of Rule 4351, and sections 8.3.2 and 8.4 of Rule 4701. For the 
remainder of the above listed rule provisions, we have concluded that 
they are in conflict with the Act and are thus grounds for a limited 
disapproval. 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 rule 
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 rule deficiencies within 24 
months. Note that the submitted rules have been adopted by the San 
Joaquin Valley Unified 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 has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 13211

    This 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 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.
    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.

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 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.

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 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.

[[Page 9214]]

    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).

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 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.

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 action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. 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).

J. 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 29, 2002. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: January 14, 2002.
Wayne Nastri,
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)(230)(i)(D)(3), (244)(i)(E)(2) and (254)(i)(A)(5) to read as 
follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (230) * * *
    (i) * * *
    (D) * * *
    (3) Rule 4351 adopted on October 19, 1995.
* * * * *
    (244) * * *
    (i) * * *
    (E) * * *
    (2) Rule 4305 adopted on December 19, 1996.
* * * * *
    (254) * * *
    (i) * * *
    (A) * * *
    (5) Rule 4701 adopted on December 19, 1996, and Rule 4703 adopted 
on October 16, 1997.
* * * * *

[FR Doc. 02-4643 Filed 2-27-02; 8:45 am]
BILLING CODE 6560-50-P