Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision; Kern County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 152-0104a FRL-6189-9]

Approval and Promulgation of State Implementation Plans;

California State Implementation Plan Revision; Kern County Air

Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct final action on revisions to the

California State Implementation Plan (SIP). The revisions concern rules

from the Kern County Air Pollution Control District (KCAPCD). This

action will remove these rules from the Federally approved SIP. The

intended effect of this action is to remove rules from the SIP that are

no longer in effect in KCAPCD, in accordance with the requirements of

the Clean Air Act, as amended in 1990 (CAA or the Act). Thus, EPA is

finalizing the removal of these rules from the California SIP under

provisions of the CAA regarding EPA action on SIP submittals, SIPs for

national primary and secondary ambient air quality standards and plan

requirements for nonattainment areas.

DATES: This rule is effective on February 19, 1999, without further

notice, unless EPA receives adverse comments by January 20, 1999. If

EPA receives such comment, then it will publish a timely withdrawal in

the Federal Register informing the public that this rule will not take

effect.

ADDRESSES: Comments must be submitted to Andrew Steckel at the Region

IX office listed below. Copies of these rules, along with EPA's

evaluation report for each rule, are available for public inspection at

EPA's Region IX office during normal business hours. Copies of the

submitted requests for rescission 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.

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 95814.

Kern County Air Pollution Control District, 2700 M Street, Suite

290, Bakersfield, CA 93003.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, Rulemaking Office

(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1197.

SUPPLEMENTARY INFORMATION:

I. Applicability

The KCAPCD rules being removed from the California SIP include:

Rule 404, Particulate Matter Concentration--Valley Basin; Rule 408,

Fuel Burning Equipment--Valley Basin, Rule 411.1, Steam-enhanced Crude

Oil Production Well Vents; Rule 414.2, Refinery Process Vacuum

Producing Devices or Systems; Rule 414.3, Refinery Process Unit

Turnaround; and Rule 414.4, Polystyrene Foam Manufacturing. These rules

were repealed by KCAPCD on April 6, 1995, and submitted by the

California Air Resources Board (CARB) to EPA on May 25, 1995 for

removal from the SIP.

II. Background

On March 3, 1978, EPA promulgated a list of ozone nonattainment

areas under the provisions of the Clean Air Act, as amended in 1977

(1977 Act or

[[Page 70349]]

pre-amended Act), that included the San Joaquin Valley Area which

encompassed the following eight air pollution control districts

(APCDs): Fresno County APCD, Kern County APCD,1 Kings County

APCD, Madera County APCD, Merced County APCD, San Joaquin County APCD,

Stanislaus County APCD, and Tulare County APCD. See 43 FR 8964, 40 CFR

81.305. On March 20, 1991, the San Joaquin Valley Unified APCD

(SJVUAPCD) was formed. The SJVUAPCD has authority over the San Joaquin

Valley Air Basin which includes all of the above eight counties except

for the Southeast Desert Air Basin portion of Kern County. Thus, Kern

County Air Pollution Control District still exists, but only has

authority over the Southeast Desert Air Basin portion of Kern County.

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

\1\ At that time, Kern County included portions of two air

basins: the San Joaquin Valley Air Basin and the Southeast Desert

Air Basin. The San Joaquin Valley Air Basin portion of Kern County

was designated as nonattainment, and the Southeast Desert Air Basin

portion of Kern County was designated as unclassified. See 40 CFR

81.305 (1991).

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

The rules being addressed in this action were adopted by the KCAPCD

prior to the formation of the SJVUAPCD. These rules were originally

adopted to control particulate matter emissions in the San Joaquin

Valley Air Basin, emissions from fuel burning equipment in the San

Joaquin Valley Air Basin, and volatile organic compound (VOC) emissions

from steam-enhanced crude oil production well vents, refinery process

vacuum producing devices, refinery process unit turnarounds, and

polystyrene foam manufacturing. However, all sources subject to these

rules are located in the San Joaquin Valley Air Basin portion of Kern

County, and therefore are under the jurisdiction of SJVUAPCD, where

these rules remain in effect until the SJVUAPCD adopts a replacement

rule. Due to a lack of sources in the district, these rules were

rescinded by the KCAPCD on April 6, 1995, and submitted by CARB to EPA

on May 25, 1995 for removal from the KCAPCD portion of the California

SIP.

III. EPA Action

The KCAPCD rules that are being rescinded by today's action are

listed below. EPA previously approved all these rules into the

California SIP:

Rule 404, Particulate Matter Concentration--Valley Basin,

submitted May 25, 1995.

Rule 408, Fuel Burning Equipment--Valley Basin, submitted

May 25, 1995.

Rule 411.1, Steam-enhanced Crude Oil Production Well

Vents, submitted May 25, 1995.

Rule 414.2, Refinery Process Vacuum Producing Devices or

Systems, submitted May 25, 1995.

Rule 414.3, Refinery Process Unit Turnaround, submitted

May 25, 1995.

Rule 414.4, Polystyrene Foam Manufacturing, submitted May

25, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future implementation

plan. Each request for revision to the state implementation plan shall

be considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

EPA is publishing this notice without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the Proposed Rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve this SIP revision should

adverse comments be filed. This rule will be effective February 19,

1999, without further notice unless the Agency receives adverse

comments by January 20, 1999.

If EPA receives such comments, then EPA will publish a document

withdrawing this final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period. Any parties interested in commenting

on this action should do so at this time. If no such comments are

received, the public is advised that this rule will be effective on

February 19, 1999 and no further action will be taken on the proposed

rule.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, 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. If the mandate is unfunded, EPA must 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 written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 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.

C. 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.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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

[[Page 70350]]

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 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. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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).

F. 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.

G. 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 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).

H. Petitions for Judicial Review

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 February 19, 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

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: November 9, 1998.

Felicia Marcus,

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 paragraphs (c)(24)(vii)(E),

(c)(52)(i)(C), (c)(67)(iii)(C), (c)(75)(iii), (c)(101)(ii)(F), and

(c)(140)(ii)(B) to read as follows:

Sec. 52.220 Identification of Plan.

* * * * *

(C) * * *

(24) * * *

(vii) * * *

(E) Previously approved on August 22, 1977 and now deleted with

replacement Rule 404 (valley basin only).

* * * * *

(52) * * *

(i) * * *

(C) Previously approved on August 21, 1981 and now deleted without

replacement Rule 414.2 (valley basin only).

* * * * *

(67) * * *

(iii) * * *

(C) Previously approved on July 8, 1982 and now deleted without

replacement Rule 411.1 (valley basin only).

* * * * *

(75) * * *

(iii) Previously approved on August 21, 1981 and now deleted

without replacement Rule 414.3 (valley basin only).

* * * * *

(101) * * *

(ii) * * *

(F) Previously approved on October 11, 1983 and now deleted without

replacement Rule 414.4 (valley basin only).

* * * * *

(140) * * *

(ii) * * *

(B) Previously approved on May 3, 1994 and now deleted without

replacement Rule 408 (valley basin only).

* * * * *

[FR Doc. 98-33735 Filed 12-18-98; 8:45 am]

BILLING CODE 6560-50-P