Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, San Joaquin Valley Unified Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 207-0121; FRL-6214-5]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, San Joaquin Valley Unified Air

Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval

of a revision to the California State Implementation Plan (SIP)

proposed in the Federal Register on August 7, 1998. This final action

will incorporate this rule into the federally approved SIP. The

intended effect of finalizing this action is to regulate emissions of

volatile organic compounds (VOCs) in accordance with the requirements

of the Clean Air Act, as amended in 1990 (CAA or the Act). The rule

controls VOC emissions from a variety of sources. Thus, EPA is

finalizing a simultaneous limited approval and limited disapproval

under CAA provisions regarding EPA action on SIP submittals and general

rulemaking authority because this revision, while maintaining the SIP,

also does not fully meet the CAA provisions regarding plan submissions

and requirements for nonattainment areas. As a result of this limited

disapproval EPA will be required to impose highway funding or emission

offset sanctions under the CAA unless the State submits and EPA

approves a correction to the identified deficiency within 18 months of

the effective date of this disapproval. Moreover, EPA will be required

to promulgate a Federal Implementation Plan (FIP) unless the deficiency

is corrected within 24 months of the effective date of this

disapproval.

EFFECTIVE DATE: This action is effective on February 16, 1999.

ADDRESSES: Copies of the rule and EPA's evaluation report of the rule

are available for public inspection at EPA's Region IX office during

normal business hours. Copies of the submitted rule are 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

San Joaquin Valley Unified Air Pollution Control District, 1999

Tuolumne Street, Suite #200, Fresno, CA 93721

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, (AIR-

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

Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being approved into the California SIP is San Joaquin

Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4661,

Organic Solvents. This rule was submitted by the California Air

Resources Board (CARB) to EPA on March 10, 1998. Eighteen rules from

the San Joaquin Valley Air Basin's eight counties are being replaced by

SJVUAPCD Rule 4661 and are being rescinded from their respective SIPs

with this action. A detailed list of the rules being rescinded from the

county SIPs can be found in the Technical Support Document (TSD) for

Rule 4661 (dated July 1, 1998), which is available from the U.S. EPA,

Region IX office.

II. Background

On August 7, 1998 in 63 FR 42308, EPA proposed granting limited

approval and limited disapproval of SJVUAPCD Rule 4661, Organic

Solvents into the California SIP. Rule 4661 was adopted by SJVUAPCD on

December 17, 1992. This rule was submitted by the CARB to EPA on March

10, 1998. This rule was submitted in response to EPA's 1988 SIP Call

and the CAA section 110(a)(2)(A) requirement. A detailed discussion of

the background for the above rule and nonattainment area is provided in

the proposed rule cited above.

EPA has evaluated the above rule for consistency with the

requirements of the CAA and EPA regulations and EPA's interpretation of

these requirements as expressed in the EPA policy guidance document

referenced in the proposed rule. EPA is finalizing the limited approval

of this rule in order to provide a uniform set of requirements for the

entire San Joaquin Valley Air Basin, maintain the SIP, and alleviate

problems associated with the listing of all applicable requirements in

Title V source permits. EPA is also finalizing the limited disapproval

of this rule and requiring the correction of the remaining deficiency.

Section 4.2 of Rule 4661 states that Rule 4661 shall not apply to any

source which is in full compliance with the provisions of other

applicable rules in Regulation IV (Prohibitions). This exemption does

not specify that it applies only in situations where sources are in

compliance with other SIP-approved rules. Because of this deficiency,

the rule is not fully approvable pursuant to section 110(a)(2)(A) of

the CAA because it is not consistent with the interpretation of Section

172 of the 1977 CAA as found in the Blue Book and may lead to

compliance problems. A detailed

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discussion of the rule provisions and evaluation has been provided in

the proposed rule and in the TSD available at EPA's Region IX office.

III. Response to Public Comments

A 30-day public comment period was provided in 63 FR 42308. EPA

received no comment letters on the proposed rule.

IV. EPA Action

EPA is finalizing a limited approval and a limited disapproval of

the above-referenced rule. The limited approval of this rule is being

finalized under section 110(k)(3) in light of EPA's authority pursuant

to section 301(a) to adopt regulations necessary to further air quality

by maintaining the SIP. The approval is limited in the sense that the

rule maintains the SIP but contains a deficiency, as discussed in the

proposed rule, that does not meet the section 110(a)(2)(A) CAA

requirement. Thus, in order to maintain the SIP, EPA is granting

limited approval of this rule under sections 110(k)(3) and 301(a) of

the CAA. This action approves the rule into the SIP as a federally

enforceable rule.

At the same time, EPA is finalizing the limited disapproval of this

rule because it contains a deficiency that has not been corrected as

required by section 110(a)(2)(A) of the CAA, and, as such, the rule

does not fully meet the requirements of Part D of the Act. As stated in

the proposed rule, upon the effective date of this final rule, the 18

month clock for sanctions and the 24 month FIP clock will begin.

Sections 179(a) and 110(c). If the State does not submit the required

correction and EPA does not approve the submittal within 18 months of

the effective date of the final rule, either the highway sanction or

the offset sanction will be imposed at the 18 month mark. It should be

noted that the rule covered by this final rule has been adopted by the

SJVUAPCD and is currently in effect. EPA's limited disapproval action

will not prevent SJVUAPCD or EPA from enforcing this rule.

V. 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 E.O. 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, E.O. 12875 requires

EPA to provide to the OMB 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, 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, 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, E.O. 13084 requires EPA to

provide to the OMB, 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, E.O. 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. 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 a 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

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State, local, or tribal governments in the aggregate; or to the 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 March 16, 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, Ozone,

Reporting and recordkeeping requirements, Volatile organic compound.

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: December 18, 1998.

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 paragraph (c) (254)(i)(A)(4)

to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(254) * * *

(i) * * *

(A) * * *

(4) Rule 4661, adopted on December 17, 1992.

* * * * *

[FR Doc. 99-892 Filed 1-14-99; 8:45 am]

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