[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 9015-9017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4513]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 269-0382a; FRL-7451-6]


Revisions to the California State Implementation Plan, Mojave 
Desert Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to approve revisions to the 
Mojave Desert Air Quality Management District (MDAQMD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
Oxides of Nitrogen (NOX) emissions from Portland cement 
kilns. We are approving a local rule that regulates these emission 
sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on April 28, 2003 without further notice, 
unless EPA receives adverse comments by March 31, 2003. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register to notify the public that this rule will not take effect.

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:

Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail 
Code 6102T), Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Mojave Desert Air Quality Management District, 14306 Park Avenue, 
Victorville, California 92392.

    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA website and may not contain the same version of the rule that 
was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Charnjit Bhullar, EPA 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 revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating this rule?
    B. Does this rule meet the evaluation criteria?
    C. Public comment and final action.
III. Background Information
    A. Why was this rule submitted?
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule we are approving with the date that it was 
adopted by the local air agency and submitted by the California Air 
Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                            Rule                 Rule title             Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
MDAQMD....................................         1161  Portland Cement Kilns........      3/25/02      6/18/02
----------------------------------------------------------------------------------------------------------------

    On July 23, 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?

    MDAQMD adopted an earlier version of this rule on October 22, 2001, 
and CARB submitted it to us on November 8, 2001. We published approval 
of this previous version of Rule 1161 into the SIP on January 2, 2002 
(67 FR 19).

C. What Is the Purpose of the Submitted Rule Revisions?

    Rule 1161 applies to cement manufacturing operations within the 
Federal ozone non-attainment area

[[Page 9016]]

regulated by the MDAQMD. This rule controls emission of NOX 
from Portland cement kilns. On January 2, 2002, the EPA finalized 
approval of a previous version of this rule. CARB submitted comments on 
the previous version of proposed rule 1161 a few days prior to its 
scheduled adoption in October 2001. Because delaying adoption could 
have resulted in offset and highway sanctions for the region, MDAQMD 
committed to CARB that it would address CARB's comments no later than 
May 2002.
    On March 25, 2002, MDAQMD adopted the amended rule 1161. On June 
18, 2002, CARB submitted the revised version of rule 1161 for approval 
into the SIP. Rule 1161, as revised, addresses CARB's comments.
    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 Reasonably Available Control Technology (RACT) for 
major sources in nonattainment areas (see sections 182(a)(2)(A) and 
182(f)), and must not relax existing requirements (see sections 110(l) 
and 193). The MDAQMD regulates an ozone nonattainment area (see 40 CFR 
part 81), so Rule 1161 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. ``Guidance Document for Correcting VOC Rule Deficiencies'', U.S. 
EPA Region 9, August 21, 2001 (the little bluebook).
    3. 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, November 25, 1992.
    4. Nitrogen Oxides (NOX) Reasonably Available Control 
Technology (RACT) for the Repowering of Utility Boilers, U.S. EPA 
Office of Air Quality Planning and Standards, March 9, 1994.
    5. Alternative Control Techniques (ACT) Document, NOX 
Emission from Cement Manufacturing, U.S. EPA, March 1994, EPA 453/R-94-
004.
    6. State Implementation Plans (SIPS): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown, dated September 
20, 1999.

B. Does This Rule Meet the Evaluation Criteria?

    We believe this rule is consistent with the relevant policy and 
guidance regarding enforceability, RACT, and SIP relaxations.
    The TSD has more information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully 
approving the submitted rule because we believe it fulfills all 
relevant requirements. We do not think anyone will object to this 
approval, so we are finalizing it without proposing it in advance. 
However, in the Proposed Rules section of this Federal Register, we are 
simultaneously proposing approval of the same submitted rule. If we 
receive adverse comments by March 31, 2003, we will publish a timely 
withdrawal in the Federal Register to notify the public that the direct 
final approval will not take effect and we will address the comments in 
a subsequent final action based on the proposal. If we do not receive 
timely adverse comments, the direct final approval will be effective 
without further notice on April 28, 2003. This will incorporate this 
rule into the federally enforceable SIP.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

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 this local agency NOX 
rule.

                Table 2.--Ozone Nonattainment Milestones
------------------------------------------------------------------------
               Date                                 Event
------------------------------------------------------------------------
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.
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. Statutory and Executive Order Reviews

    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 13211, 
``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,

[[Page 9017]]

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 28, 2003. 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 31, 2003.
Alexis Strauss,
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 paragraph (c)(300) to read 
as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (300) Amended regulations for the following APCDs were submitted on 
June 18, 2002, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Mojave Desert Air Quality Management District.
    (1) Rule 1161 amended on March 25, 2002.
* * * * *

[FR Doc. 03-4513 Filed 2-26-03; 8:45 am]
BILLING CODE 6560-50-P