# Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision; Kern County Air Pollution Control District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A98-33735 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 21, 1998 - **Citation:** 63 FR 70348 ## Text 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 The intended effect of this action is to remove rules from the SIP that are no longer in effect in KCAPCD, in accordance with the requirements of the Clean Air Act, as amended in 1990 (CAA or the Act).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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-33735. Public record. Not legal advice.