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

[Federal Register: March 30, 1999 (Volume 64, Number 60)]

[Rules and Regulations]

[Page 15129-15132]

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

[DOCID:fr30mr99-4]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 211-0127a; FRL-6313-4]

Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; El Dorado 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 California State Implementation Plan (SIP). The El Dorado County Air Pollution Control District (EDCAPCD), Rule 239 concerns control of emissions of oxides of nitrogen (NO‹INF›X‹/INF›) from natural gas-fired residential water heaters.

This approval action will incorporate this rule into the Federally approved SIP. The intended effect of approving of this rule is to regulate NO‹INF›X‹/INF› emissions in accordance with the requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is finalizing the approval of this revision into the California SIP under provisions of the CAA regarding EPA actions on SIP submittals, SIPs for national primary and secondary ambient air quality standards (NAAQS), and plan requirements for nonattainment areas.

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DATES: This rule is effective on June 1, 1999 without further notice, unless EPA receives adverse comments by April 29, 1999. If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES: Written comments must be submitted to Andrew Steckel at the Region IX office listed below. Copies of the rule and EPA's evaluation report of each rule are available for public inspection at EPA's Region IX office during normal business hours. Copies of the submitted rule are also available for inspection at the following locations:

Rulemaking Office, AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 Environmental Protection Agency, Air Docket (6102) 401 ``M'' Street, S.W., Washington, D.C. 20460 California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812 El Dorado County Environmental Management Department, Air Pollution Control District, 2850 Fairlane Court, Placerville, CA 95667

FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office, AIR-4, Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 Telephone: (415) 744- 1185.

SUPPLEMENTARY INFORMATION:

  1. Applicability

    The rule being approved into the California SIP is EDCAPCD's Rule 239, Natural Gas-fired Residential Water Heaters. Rule 239 was submitted by the State of California to EPA on June 23, 1998.

  2. Background

    On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401- 7671q.

    On November 25, 1992, EPA published a proposed rule entitled, ``State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,'' (the NO‹INF›X‹/INF› Supplement) which describes and provides preliminary guidance on the requirements of section 182(f). The November 25, 1992, action should be referred to for further information on the NO‹INF›X‹/INF› requirements and is incorporated into this document by reference.

    Section 182 (f) of the Clean Air Act requires States to apply the same requirements to major stationary sources of NO‹INF›X‹/INF› (``major'' as defined in section 302 and sections 182(c), (d), and (e)) as are applied to major stationary sources of volatile organic compounds (VOCs), in moderate or above ozone nonattainment areas. El Dorado County Air Pollution Control District (EDCAPCD) is classified as serious ‹SUP›1‹/SUP›; therefore this area is subject to the RACT requirements of section 182(b)(2) cited below and the November 15, 1992 deadline.

    \1\ EDCAPCD area retained the designation of nonattainment and is classified by operation of law pursuant to sections 107(d) and 181(a) upon the date of enactment of the CAA. See 55 FR 56694 (November 6, 1991).

    Section 182(b)(2) requires submittal of RACT rules for major stationary sources of VOC (and NO‹INF›X‹/INF›) emissions (not covered by a pre-enactment control technologies guidelines (CTG) document or a post-enactment CTG document) by November 15, 1992. There are no major stationary sources covered by this rule; however, this rule is expected to achieve substantial reductions of NO‹INF›X‹/INF› because it applies to a large number of small sources.

    This document addresses EPA's direct final action for EDCAPCD's Rule 239, Natural Gas-fired Residential Water Heaters. EDCAPCD's Rule 239 was first adopted on March 24, 1998.

    The State of California submitted the rule to EPA for incorporation into its SIP on June 23, 1998. Rule 239 was found to be complete on August 25, 1998 pursuant to EPA's completeness criteria that are set forth in 40 CFR Part 51, Appendix V ‹SUP›2‹/SUP› and is being finalized for approval into the SIP.

    \2\ EPA adopted the completeness criteria on February 16, 1990 (55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, revised the criteria on August 26, 1991 (56 FR 42216).

    NO‹INF›X‹/INF› emissions contribute to the production of ground level ozone and smog. EDCAPCD's Rule 239 specifies exhaust emission standards for NO‹INF›X‹/INF› from natural gas-fired residential water heaters. This rule was originally adopted as part of District's efforts to achieve the National Ambient Air Quality Standard (NAAQS) for ozone, and in response to the CAA requirements cited above. The following is EPA's evaluation and final action for this rule.

  3. EPA Evaluation and Proposed Action

    In determining the approvability of a NO‹INF›X‹/INF› rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and Part D of the CAA and 40 CFR Part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for today's action, appears in the NO‹INF›X‹/INF› Supplement (57 FR 55620) and various other EPA policy guidance documents.‹SUP›3‹/SUP›

    \3\ Among other things, the pre-amendment guidance consists of those portions of the proposed post-1987 ozone and carbon monoxide policy 52 FR 45044 (November 24, 1987); ``Issues Relating to VOC regulation Cutpoints, Deficiencies, and Deviation, Clarification to Appendix D of November 24, 1987 Federal Register Notice'' (Blue Book) (notice of availability was published in the Federal Register on May 25, 1988).

    South Coast Air Quality Management District (SCAQMD) has developed a protocol document entitled Nitrogen Oxides Emissions Compliance Testing for Natural Gas-fired Water Heaters and Small Boilers jointly with the industry and replaces the ANSI requirements currently used by manufacturers. EPA has used SCAQMD's guidance document in evaluating EDCAPCD's Rule 239 for consistency with the enforceability requirements.

    There is currently no version of EDCAPCD's Rule 239, Natural Gas- fired Residential Water Heaters, in the SIP. Rule 239 establishes NO‹INF›X‹/INF› and carbon monoxide (CO) emissions limits for natural gas-fired residential water heaters with rated heat inputs of greater than or equal to 75,000 Btu per hour.

    The submitted rule includes the following provisions:

    ‹bullet› General provisions including applicability, exemptions, and definitions.

    ‹bullet› Exhaust emissions standards for oxides of nitrogen (NO‹INF›X‹/INF›).

    ‹bullet› Administrative and monitoring requirements including compliance schedule, reporting requirements, monitoring and record keeping, and test methods.

    Rules submitted to EPA for approval as revisions to the SIP must be fully enforceable, must maintain or strengthen the SIP and must conform with EPA policy in order to be approved by EPA. When reviewing rules for SIP approvability, EPA evaluates enforceability elements such as test methods, record keeping, and compliance testing in addition to applicable guidance regarding emission limits. Rule 239 strengthens the SIP through the addition of enforceable measures such as record keeping, test methods, definitions, and emissions limits. Incorporation of the rule into the SIP would decrease the NO‹INF›X‹/INF› emissions allowed by the SIP.

    A detailed discussion of the sources controlled, the controls required, and justification can be found in the

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    Technical Support Document (TSD) for Rule 229, dated December 30, 1998, which is available from the U.S. EPA Region IX office.

    EPA has evaluated the submitted rule and has determined it consistent with the CAA, EPA regulations and EPA policy. Therefore, Rule 239, Natural Gas-fired Residential Water Heaters; is being approved under section 110(k)(3) of the CAA as meeting the requirements of section 110(a), section 182(b)(2), section 182(f) and the NO‹INF›X‹/INF› Supplement to the General Preamble.

  4. Administrative Requirements

    1. Executive Order 12866

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

    2. Executive Order 12875

      Under Executive Order 12875, Enhancing the Intergovernmental Partnership, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on State, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

    3. Executive Order 13045

      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 E.O. 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 E.O. 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

    4. Executive Order 13084

      Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

    5. 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 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 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).

    6. 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 annual 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 annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves 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.

    7. 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

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      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. This rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

    8. Petitions for Judicial Review

      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 June 1, 1999. 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, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

      Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

      Note: Incorporation by reference of the State Implementation Plan for the State of California was approved by the Director of the Federal Register on July 1, 1982.

      Dated: March 11, 1999. Laura Yoshii, Deputy 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) (256) (D) to read as follows:

        Sec. 52.220 Identification of plan.

        * * * * *

        (c) * * *

        (256) * * *

        (i) * * *

        (D) El Dorado County Pollution Control District .

        (1) Rule 239 adopted on March 24, 1998. * * * * *

        [FR Doc. 99-7668Filed3-29-99; 8:45 am]

        BILLING CODE 6560-50-P

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