Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: October 10, 2001 (Volume 66, Number 196)]

[Rules and Regulations]

[Page 51578-51581]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr10oc01-12]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 242-0297a; FRL-7075-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve revisions to the El Dorado County Air Pollution Control District (EDCAPCD) and Imperial County Air Pollution Control District (ICAPCD) portions of the California State Implementation Plan (SIP). These revisions concern Oxides of Nitrogen (NOX) emissions from industrial, institutional, and commercial boilers, steam generators, and process heaters as well as administrative matters. We are approving and rescinding local rules that regulate emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES: This rule is effective on December 10, 2001 without further notice, unless EPA receives adverse comments by November 9, 2001. 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.

You can inspect copies of the submitted rule revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted rule revisions at the following locations: Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460. 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. Imperial County Air Pollution Control District, 150 South 9th Street, El Centro, CA 92243.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR- 4), U.S. Environmental Protection Agency, Region IX; (415) 744-1135.

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

Table of Contents

1. The State's Submittal

   1. What rules did the State submit?

   2. Are there other versions of these rules?

   3. What are the purposes of the submitted rule revisions? II. EPA's Evaluation and Action

   1. How is EPA evaluating the rules?

   2. Do the rules meet the evaluation criteria?

   3. Public comment and final action III. Background Information

   1. Why were these rules submitted? IV. Administrative Requirements

1. The State's Submittal

   1. What Rules Did the State Submit?

      Table 1 lists the rules we are approving or rescinding with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

      Table 1.--Submitted Rules

      Adopted or Local agency

      Rule No.

      Rule title

      (rescinded)

      Submitted

      EDCAPCD.........................

      101 General Provisions and 02/15/00........... 07/26/00 Definitions. EDCAPCD.........................

      229 Industrial,

      01/23/01........... 05/23/01 Institutional, and Commercial Boilers, Steam Generators, and Process Heaters. EDCAPCD.........................

      101 Title.................. 02/15/00........... 07/26/00 (Rescinded)........

      [[Page 51579]]

      EDCAPCD.........................

      102 Definitions............ 02/15/00........... 07/26/00 (Rescinded)........ ICAPCD..........................

      100 Rule Citation.......... 09/14/99........... 05/26/00 ICAPCD..........................

      113 Circumvention.......... 09/14/99........... 05/26/00

      On October 4, 2000, submittals of EDCAPCD Rules 101, 101 (recision), and 102 (recision) were found to meet the completeness criteria in 40 CFR Part 51, appendix V, which must be met before formal EPA review. On July 3, 2001, the submittal of EDCAPCD Rule 229 was found to meet the completeness criteria.

      On October 6, 2000, the submittal of ICAPCD Rules 100 and 113 were found to meet the completeness criteria.

   2. Are There Other Versions of These Rules?

      We approved a version of EDCAPCD Rule 101 into the SIP as Rule 101 on June 14, 1978 (43 FR 25674) and as Rule 102 on November 6, 1978 (43 FR 51632), both of which are now submitted for recision. Rules 101 and 102 were originally submitted on April 10, 1975 and November 4, 1977, respectively. We finalized a limited approval and limited disapproval of a version of EDCAPCD Rule 229 into the SIP on July 21, 2000 (65 FR 45297).

      We approved a version of ICAPCD Rules 100 and 113 into the SIP on August 11, 1978 (43 FR 35694) and on February 3, 1989 (54 FR 5448), respectively.

   3. What Are the Purposes of the Submitted Rule Revisions?

      The purposes are as follows:

      EDCAPCD Rule 101 combines SIP rules 101 and 102 for simplification and adds, deletes, or revises certain definitions.

      EDCAPCD Rule 229 regulates NOXand CO emissions from industrial, institutional, and commercial boilers, steam generators, and process heaters. Revisions were made to correct the deficiencies cited in the proposed limited approval and limited disapproval action on May 5, 1999 (64 FR 24121).

      ICAPCD Rule 100 changed the title for clarity.

      ICAPCD Rule 113 was reformatted.

      The TSD has more information about these rules.

2. EPA's Evaluation and Action

   1. How Is EPA Evaluating the Rules?

      Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in ozone nonattainment areas (see sections 182(a)(2)(A) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The EDCAPCD regulates a severe ozone nonattainment area (see 40 CFR part 81), so EDCAPCD Rule 229 must fulfill the requirements of RACT. The other rules are administrative and must meet only enforceability and relaxation requirements.

      Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

      ``Requirements for Preparation, Adoption, and Submittal of Implementation Plans,'' U.S. EPA, 40 CFR 61.

      ``State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,'' (the NOX Supplement), 57 FR 55620 (November 25, 1992).

      ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,'' (Blue Book), notice of availability published in the May 25, 1988 Federal Register.

      ``Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters,'' California Air Resources Board (July 18, 1991).

      ``Cost-Effective Nitrogen Oxides (NOX) Reasonably Available Control Technology,'' U.S. EPA Office of Air Quality Planning and Standards (March 16, 1994).

   2. Do the Rules Meet the Evaluation Criteria?

      We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. All of the deficiencies identified in our previous limited approval and limited disapproval action have been adequately addressed as follows:

      Section 229.3.D: [Multiple deficiencies are listed for this section, which allows for an alternate emission control plan.] This section is not required by the CAA and is deleted completely.

      Section 229.5.B.2: [The Executive Officer's discretion language should be expanded to include sampling methods approved by the CARB and EPA.] This is corrected.

      Section 229.3.A: [This section should be revised to ``greater than or equal to 90,000 therms per year limit for each of the three previous years.''] This is corrected.

      Section 229.3.C: [The specification for flow meters should be revised to require non-resettable mass and volume flow meters.] This is corrected.

      Section 229.4.A: [A date for full compliance of facilities should be added.] This is corrected.

      The TSD has more information on our evaluation.

   3. Public Comment and Final Action

      As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules and rule recisions because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by November 9, 2001, 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 December 10, 2001. This will incorporate these rules into or rescind from the federally-enforceable SIP. This will also terminate any sanction or FIP clocks initiated by our January 21, 2000 action under sections 179 and 110(c) of the CAA.

      [[Page 51580]]

3. Background Information

   1. Why Were These Rules Submitted?

   NOXhelps 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 NOXemissions. Table 2 lists some of the national milestones leading to the submittal of these local agency NOXrules.

   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 CAA. 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.

4. 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 (Public Law 104-4). This rule also does 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), nor will it 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), 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. This rule also is not subject to Executive Order 13045 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the ``Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued under the executive order. 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. section 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. section 804(2).

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by December 10, 2001. 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: September 12, 2001. Mike Shulz, Acting Regional Administrator, Region IX.

   Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

   [[Page 51581]]

   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)(27)(viii)(C), (c)(42)(x)(B), (c)(279)(i)(A)(6), (c)(280)(i)(B)(2), and (c)(281)(i)(A)(2) to read as follows:

      Sec. 52.220 Identification of plan.

      * * * * *

      (c) * * *

      (27) * * *

      (viii) * * *

      (C) Previously approved on June 14, 1978 in paragraph (c)(27)(viii)(A) of this section and now deleted Rule 101. * * * * *

      (42) * * *

      (x) * * *

      (B) Previously approved on November 6, 1978 in paragraph (c)(42)(x)(A) of this section and now deleted Rule 102. * * * * *

      (279) * * *

      (i) * * *

      (A) * * *

      (6) Rules 100 and 113, adopted on September 14, 1999. * * * * *

      (280) * * *

      (i) * * *

      (B) * * *

      (2) Rule 101, adopted on February 15, 2000. * * * * *

      (281) * * *

      (i) * * *

      (A) * * *

      (2) Rule 229, adopted on January 23, 2001. * * * * *

      [FR Doc. 01-25252Filed10-9-01; 8:45 am]

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