Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Kern County Air Pollution Control District; Yolo-Solano Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA71-168a ; FRL -6452-3]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Kern County Air Pollution Control

District; Yolo-Solano Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

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

County Air Pollution Control District (KCAPCD), Rule 424 and Yolo-

Solano Air Quality Management District, Rule 2.37. The revisions

include rescission and removal of an obsolete rule from the SIP and the

incorporation of two rules into the Federally approved SIP.

The rule to be removed regulated sulfur compound emissions from oil

field steam generators. No units covered by this rule remain or are in

operation within KCAPCD's jurisdictional area.

The rules to be incorporated control emissions of oxides of

nitrogen (NOX) from natural gas-fired residential water

heaters.

This approval action will incorporate the two rules into the

Federally approved SIP. The intended effect of approving the rules is

to regulate NOX 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.

DATES: These rules are effective on December 27, 1999 without further

notice, unless EPA receives adverse comments by November 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

respective rules 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,

SW, Washington, DC 20460

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812

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

302, Bakersfield, CA 93301-2370

Yolo-Solano Air Quality Management District 1947 Galileo Court, Suite

103, Davis, CA 95616-4882

FOR FURTHER INFORMATION CONTACT: Sam Agpawa, Air Planning Office, AIR-

2, Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-

1228.

SUPPLEMENTARY INFORMATION:

[[Page 57992]]

I. Applicability

The rule being rescinded and removed is KAPCD Rule 424. The rule

was adopted by KAPCD on July 18, 1983; approved into the SIP on May 3,

1984; and rescinded by KAPCD's Board on April 19, 1993. The rule was

submitted to EPA for rescission on November 18, 1993. The rule number

was reassigned to a subsequent rule which was adopted by KAPCD's Board

on the date of rescission.

The rule being approved for rescission and removal from the SIP is

the old KAPCD rule 424. The rule applied to sulfur compounds from

oilfield steam generators. The rules being approved into the California

SIP are:

(1) The new KCAPCD Rule 424 and (2) YSAQMD Rule 2.37. The rules

apply to natural gas-fired residential water heaters. The rules were

submitted by the State of California to EPA on: (1) KCAPCD Rule 424--

November 18, 1993; and (2) YSAQMD Rule 2.37--February 24, 1995.

II. 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. The air quality planning requirements for the reduction of

NOX emissions through reasonably available control

technology (RACT) are set out in section 182(f) of the CAA.

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 NOX 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 NOX 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 NOX

(``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.

KCAPCD and YSAQMD are designated and classified as non-attainment-

serious for ozone 1; therefore, the jurisdictional areas of

KCAPCD and YSAQMD are subject to the RACT requirements of section

182(b)(2) cited below and the November 15, 1992 deadline.

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\1\ Kern County and the Yolo-Solano Air Quality Management

District retained their designation(s) of nonattainment and were

classified by operation of law pursuant to sections 107(d) and

181(a) upon the date of enactment of the CAA. See 56 FR 56694

(November 6, 1991).

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Section 182(b)(2) requires submittal of RACT rules for major

stationary sources of VOC (and NOX) 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 KCAPCD Rule 424 and YSAQMD Rule 2.37 and

RACT requirements do not apply; however, the rules are expected to

achieve substantial reductions of NOX because they apply to

a large number of small sources.

This document addresses EPA's direct final action for KCAPCD Rule

424 and YSAQMD Rule 2.37, applying to natural gas-fired residential

water heaters. The rules were adopted on: (1) KCAPCD Rule 424--April

19, 1993 and (2) YSAQMD 2.37--November 9, 1994.

The State of California submitted the rules to EPA for

incorporation into its SIP on: (1) KCAPCD Rule 424--November 18, 1993;

and (2) YSAQMD Rule 2.37--February 24, 1995. KCAPCD Rule 424 was found

complete on December 27, 1993; YSAQMD Rule 2.37 was found complete on

March 10, 1995 pursuant to EPA's completeness criteria that are set

forth in 40 CFR Part 51, Appendix V.2 The rules are being

finalized for approval into the SIP.

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\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).

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NOX emissions contribute to the production of ground

level ozone and smog. Both rules specify exhaust emission standards for

NOX from residential water heaters. The rules were

originally adopted as part of each applicable 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 these rules.

III. EPA Evaluation and Proposed Action

In determining the approvability of a NOX 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 NOX

Supplement (57 FR 55620) and various other EPA policy guidance

documents.3 In general, the guidance documents cited above,

as well as other relevant and applicable guidance documents, have been

set forth to ensure that submitted NOX RACT rules meet

Federal RACT requirements and are fully enforceable and strengthen or

maintain the SIP.

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\3\ Among other things, the pre-amendment guidance consists of

those portions of the proposed post-1987 ozone and carbon monoxide

policy that concern RACT, 52 FR 45044 (November 24, 1987); ``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 was published in the

Federal Register on May 25, 1988).

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KCAPCD Rule 424 and YSAMQD Rule 2.37 prohibit the sale and

installation of units within Kern County and the Yolo-Solano Air

Quality Management District that exceed the Rules' specified emission

rates. Rule 424 replaces a rescinded rule which controlled sulfur

compound emissions from oil fields. The rescinded rule is no longer

applicable. The new rule was assigned the same number (424). KCAPCD

Rule 424 and YSAQMD Rule 2.37 are similar to South Coast Air Quality

Management District (SCAQMD) Rule 1121 which prohibits units that do

not meet the SCAQMD rule requirements from being sold or installed in

Los Angeles Basin.

EPA has evaluated the submitted rules and has determined that they

are consistent with the CAA, EPA regulations and EPA policy. Therefore,

KCAPCD Rule 424; and YSAQMD Rule 2.37, Natural Gas-fired Residential

Water Heaters; are 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 NOX Supplement to the General Preamble.

EPA is publishing this rule 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 the SIP revision should

adverse comments be filed. This rule will be effective December 27,

1999 without further notice unless the Agency receives adverse comments

by November 29, 1999.

If the EPA receives such comments, then EPA will publish a timely

withdrawal in the Federal Register 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

[[Page 57993]]

proposed rule. The EPA will not institute a second comment period on

this rule. Any parties interested in commenting on this rule should do

so at this time. If no such comments are received, the public is

advised that this rule will be effective on December 27, 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, Regulatory

Planning and Review.

B. 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 rules do not create a mandate on State, local or tribal

governments. The rules do not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to these rules.

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. These rules are not subject to E.O. 13045 because they

do not involve decisions intended to mitigate environmental health or

safety risks.

D. 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

rules do 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 these rules.

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. These final rules 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

[[Page 57994]]

the Federal Register. These rules are not ``major'' rules 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 December 27, 1999. Filing a

petition for reconsideration by the Administrator of these final rules

does not affect the finality of these rules 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 rules 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.

Dated: September 9, 1999.

Laura Yoshii,

Acting 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)(140)(ii)(C),

(194)(i)(B)(4), (215)(i)(D) introductory text, and (215)(i)(D)(2) to

read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(140) * * *

(ii) * * *

(C) Previously approved on May 3, 1984 and now deleted without

replacement for implementation in the Southeast Desert Air Basin Rule

424.

* * * * *

(194) * * *

(i) * * *

(B) * * *

(4) Rule 424 adopted on April 19, 1993.

* * * * *

(215) * * *

(i) * * *

(D) Yolo-Solano Air Pollution Control District.

* * * * *

(2) Rule 2.37 adopted on November 9, 1994.

* * * * *

[FR Doc 99-27199 Filed 10-27-99; 8:45 am]

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