[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Proposed Rules]
[Pages 75916-75918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21497]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2005-CA-0013, FRL-8257-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the Kern County Air 
Pollution Control District (KCAPCD) portion of the California State 
Implementation Plan (SIP). The KCAPCD revisions concern permitting 
requirements. We are proposing to approve local rules that administer 
regulations 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 January 18, 2007.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2005-CA-0013, by one of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the online instructions.
     E-mail: [email protected].
     Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Manny Aquitania, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, (415) 972-3977, 
[email protected].

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rule revisions?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What is the deficiency in Rule 203?
    D. EPA recommendation to further improve a rule
    E. Public comment and final action
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rules did the State submit?

    Table 1 lists the rules we are proposing to approve and Table 2 
lists the rule we are proposing to disapprove with the date that they 
were amended by the local air agency and submitted by the California 
Air Resources Board (CARB).

                              Table 1.--Submitted Rules Proposed for Full Approval
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                Local agency                  Rule No.            Rule title              Amended     Submitted
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KCAPCD......................................     201    Permits Required..............     05/02/96     07/23/96
KCAPCD......................................     202.1  Experimental Research              05/02/96     07/23/96
                                                         Operations.
KCAPCD......................................     209.1  Permit Conditions.............     05/02/96     07/23/96
KCAPCD......................................     210.2  Standards for Permits to           05/02/96     07/23/96
                                                         Operate.
KCAPCD......................................     210.5  Visibility Protection.........     05/02/96     07/23/96
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[[Page 75917]]


                             Table 2.--Submitted Rule Proposed for Full Disapproval
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                                                Rule
                Local agency                    No.               Rule title              Amended     Submitted
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KCAPCD......................................      203  Transfer.......................     05/02/96     07/23/96
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    On October 30, 1996, the submittal of Rules 201, 202.1, 203, 209.1, 
210.2, and 210.5 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 these rules?

    We approved Rules 201 and 202.1 into the SIP on July 6, 1982 (47 FR 
29233). We approved Rule 203 into the SIP on September 22, 1972 (37 FR 
19812). We approved Rule 210.2 into the SIP on August 21, 1981 (46 FR 
42460). There are no versions of Rules 209.1 and 210.5 in the SIP.

C. What is the purpose of the submitted rule revisions?

    Section 110(a) of the CAA requires states to submit regulations 
that control volatile organic compounds, oxides of nitrogen, 
particulate matter, and other air pollutants which harm human health 
and the environment. These rules were developed as part of the local 
agency's program to control these pollutants.
    The purposes of the new rules are as follows:
     Rule 209.1 adds a prohibition to operate equipment 
contrary to conditions in the Permit to Operate (PTO) issued in 
accordance with the provisions of Rule 209 in order to comply with the 
standards of Rules 208 and 208.1.
     Rule 210.5 adds a requirement that the Air Pollution 
Control Officer (APCO) not issue an Authority to Construct (ATC) unless 
the analysis required by this rule demonstrates that an adverse impact 
on visibility in Federal Class I Areas will not occur for any new major 
stationary source or major modification which would have the potential 
to emit nitrogen oxides, sulfur dioxide or particulate matter in 
significant amounts and is required to utilize BACT/LAER for such 
pollutants. The purposes of revisions relative to the SIP rules are as 
follows:
     Rule 201 adds a provision that the ATC will serve as the 
temporary PTO after notifying the APCO of the intent to start-up new or 
modified equipment and adds a provision that the application for a PTO 
will serve as the temporary PTO for existing equipment.
     Rule 202.1 is reformatted for clarity.
     Rule 203 replaces the prohibition from transferring a 
permit with the allowance to transfer a permit from one person to 
another or from one location to another, providing a new application is 
filed and approved by the APCO.
     Rule 210.2 deletes the severability provision.
    The TSD has more information about these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
CAA) and must not relax existing requirements (see sections 110(l) and 
193).
    The following guidance documents were used for reference:
     Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
     Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations, EPA (May 25, 1988). (The Blue Book)
     Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies, EPA Region IX (August 21, 2001). (The Little Bluebook)

B. Do the rules meet the evaluation criteria?

    We believe Rules 201, 202.1, 209.1, 210.2, and 210.5 are consistent 
with the relevant policy and guidance regarding enforceability and SIP 
relaxations.
    A provision in Rule 203 which does not meet the evaluation criteria 
is summarized below and discussed further in the TSD.

C. What is the deficiency in Rule 203?

    This provision conflicts with section 110 and part D of the CAA and 
prevents full approval of the SIP revision:
     The revision to Rule 203 to allow transfer of a permit 
from one location to another is prohibited, because permitting 
requirements may be different at different locations. A New Source 
Review must be performed upon changing location. See 40 CFR part 51, 
sections 165-166.

D. EPA Recommendation to further improve a rule

    The TSD describes an additional revision to Rule 201 that does not 
affect EPA's current action but is recommended for the next time the 
local agency modifies the rule.

E. Public comment and final action

    As authorized in section 110(k)(3) of the CAA, we are proposing 
full approval of the submitted KCAPCD Rules 201, 202.1, 209.1, 210.2, 
and 210.5.
    As authorized in sections 110(k)(3) of the CAA, we are proposing a 
full disapproval of the submitted KCAPCD Rule 203. If finalized, this 
action would retain the present SIP-approved rule in the SIP. Sanctions 
would not be imposed as described in CAA section 179 and 40 CFR 52.30-
52.32, because the present SIP-approved rule fulfills CAA requirements.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    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.)

C. 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 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 approve 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

[[Page 75918]]

relationship, under the Clean Air Act preparation of flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness. 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. 10(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 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 
the 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 proposed 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 proposes to 
approve 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.

E. Executive Order 13132, Federalism

    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 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    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.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. 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. The EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: November 28, 2006.
Wayne Nastri,
Regional Administrator, Region IX.
 [FR Doc. E6-21497 Filed 12-18-06; 8:45 am]
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