[Federal Register Volume 67, Number 41 (Friday, March 1, 2002)]
[Rules and Regulations]
[Pages 9405-9406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4783]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA248-0293c; FRL-7149-7]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; Interim Final Determination that 
State has Corrected the Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final determination.

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SUMMARY: Elsewhere in today's Federal Register, EPA published a direct 
final rulemaking fully approving revisions to the California State 
Implementation Plan. The revisions concern rules from El Dorado County 
Air Pollution Control District (EDCAPCD), Rule 523, New Source Review. 
Also in today's Federal Register, EPA published a proposed rulemaking 
document to provide the public with an opportunity to comment on EPA's 
action. If a person submits adverse comments on EPA's action within 30 
days of publication of the direct final action, EPA will withdraw its 
direct final action and will consider any comments received before 
taking final action on the State's submittal. Based on the full 
approval, EPA is making an interim final determination by this action 
that EDCAPCD has corrected the deficiencies for which a sanctions clock 
began on March 3, 2000. This action will stay application of the offset 
sanction and will defer the application of the highway sanction. 
Although this action is effective upon publication, EPA will take 
comment. If no comments are received on EPA's approval of the State's 
submittal, the direct final action published elsewhere in today's 
Federal Register will also finalize EPA's determination that the State 
has corrected the deficiencies that started the sanctions clock. If 
comments are received on EPA's approval and this interim final action, 
EPA will publish a final document taking into consideration any 
comments received.

DATES: This interim final determination is effective March 1, 2002. 
Comments must be received by April 1,2002.

ADDRESSES: Comments should be sent to: Roger Kohn, Permits Office (AIR-
3), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105
    The state submittal and EPA's analysis for that submittal, which 
are the basis for this action, are available for public review at the 
above address and at the following locations:

Environmental Protection Agency, Region 9, 75 Hawthorne Street, San 
Francisco, CA 94105.
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 Ct., 
Bldg. C, Placerville, CA 95667-4100.

FOR FURTHER INFORMATION CONTACT: Roger Kohn, Permits Office (AIR-3), 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 972-3973, 
e-mail: [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

    On May 24, 1994, the State submitted EDCAPCD Rule 523, New Source 
Review, for which EPA published a limited disapproval in the Federal 
Register on February 2, 2000 (65 FR 4887). EPA's disapproval action 
started an 18-month clock for the application of one sanction (followed 
by a second sanction 6 months later) under section 179 of the Clean Air 
Act (Act) and a 24-month clock for promulgation of a Federal 
Implementation Plan (FIP) under section 110(c) of the Act. The State 
subsequently submitted a revised rule on May 23, 2001. EPA has taken 
direct final action on this submittal pursuant to its modified direct 
final policy set forth at 59 FR 24054 (May 10, 1994). In the Rules 
section of this Federal Register, EPA is issuing a direct final full 
approval of the State of California's submittal of EDCAPCD Rule 523, 
New Source Review. In addition, in the Proposed Rules section of this 
Federal Register, EPA is proposing full approval of the State's 
submittal.
    Based on the proposed and direct final approval, EPA believes that 
it is more likely than not that the State has corrected the original 
disapproval deficiencies. Therefore, EPA is taking this final 
rulemaking action, effective on publication, finding that the State has 
corrected the deficiencies. However, EPA is also providing the public 
with an opportunity to comment on this final action. If, based on any 
comments on this action and any comments on EPA's proposed full 
approval of the State's submittal, EPA determines that the State's 
submittal is not fully approvable and this final action was 
inappropriate, EPA will either propose or take final action finding 
that the State has not corrected the original disapproval deficiencies. 
As appropriate, EPA will also issue an interim final determination or a 
final determination that the deficiencies have not been corrected. 
Until EPA takes such an action, the application of sanctions will 
continue to be deferred and or stayed.
    This action does not stop the sanctions clock that started for this 
area on March 3, 2000. However, this action will stay application of 
the offset sanction and will defer application of the highway sanction. 
See 59 FR 39832 (August 4, 1994). If EPA's direct final action fully 
approving the State's submittal becomes effective, such action will 
permanently stop the sanctions clock and will permanently lift any 
applied, stayed or deferred sanctions. If EPA must withdraw the direct 
final action based on adverse comments and EPA subsequently determines 
that the State, in fact, did not correct the disapproval deficiencies, 
EPA will also determine that the State did not correct the deficiencies 
and the sanctions consequences described in the sanctions rule will 
apply. See 59 FR 39832, to be codified at 40 CFR 52.31.

II. EPA Action

    EPA is taking interim final action finding that the State has 
corrected the disapproval deficiencies that started the sanctions 
clock. Based on this action, application of the offset sanction will be 
stayed and application of the highway sanction will be deferred until 
EPA's direct final action fully approving the State's submittal becomes 
effective or until EPA takes action proposing or finally disapproving 
in whole or part the State submittal. If EPA's direct final action 
fully approving the State submittal becomes effective, at that time any 
sanctions clocks will be permanently stopped and any applied, stayed or 
deferred sanctions will be permanently lifted.
    Because EPA has preliminarily determined that the State has an 
approvable plan, relief from sanctions should be provided as quickly as 
possible. Therefore, EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for

[[Page 9406]]

comment before this action takes effect.\1\ 5 U.S.C. 553(b)(B). EPA 
believes that notice-and-comment rulemaking before the effective date 
of this action is impracticable and contrary to the public interest. 
EPA has reviewed the State's submittal and, through its proposed and 
direct final action is indicating that it is more likely than not that 
the State has corrected the deficiencies that started the sanctions 
clock. Therefore, it is not in the public interest to initially impose 
sanctions or to keep applied sanctions in place when the State has most 
likely done all that it can to correct the deficiencies that triggered 
the sanctions clock. Moreover, it would be impracticable to go through 
notice- and comment rulemaking on a finding that the State has 
corrected the deficiencies prior to the rulemaking approving the 
State's submittal. Therefore, EPA believes that it is necessary to use 
the interim final rulemaking process to temporarily stay or defer 
sanctions while EPA completes its rulemaking process on the 
approvability of the State's submittal. Moreover, with respect to the 
effective date of this action, EPA is invoking the good cause exception 
to the 30-day notice requirement of the APA because the purpose of this 
notice is to relieve a restriction. See 5 U.S.C. 553(d)(1).
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    \1\ As previously noted, however, by this action EPA is 
providing the public with a chance to comment on EPA's determination 
after the effective date and EPA will consider any comments received 
in determining whether to reverse such action.
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III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 32111, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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). This action 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. This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 30, 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, Carbon monoxide, 
Intergovernmental regulations, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: February 8, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-4783 Filed 2-28-02; 8:45 am]
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