Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

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[Federal Register: February 28, 2002 (Volume 67, Number 40)]
[Rules and Regulations]
[Page 9209-9214]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe02-16]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 169-0323; FRL-7148-8]

Revisions to the California State Implementation Plan, 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 revisions to the San Joaquin Valley Unified Air Pollution Control
District portion of the California State Implementation Plan (SIP).
This action was proposed in the Federal Register on September 14, 1998
and concerns oxides of nitrogen (NO_X) emissions from
internal combustion engines; stationary gas turbines; and from boilers,
steam generators, and process heaters. Under authority of the Clean Air
Act as amended in 1990 (CAA or the Act), this action simultaneously
approves local rules that regulate these emission sources and directs
California to correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on April 1, 2002.

ADDRESSES: You can inspect copies of the administrative record for this
action

[[Page 9210]]

at EPA's Region IX office during normal business hours. You can inspect
copies of the submitted SIP revisions at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901.
Environmental Protection Agency, Air Docket (6102), Ariel Rios
Building, 1200 Pennsylvania Avenue, N.W., Washington D.C. 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Avenue, Fresno, California 93726-0244

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-
4121.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

I. Proposed Action

On September 14, 1998 (63 FR 49053), EPA proposed a limited
approval and limited disapproval of the following rules that were
submitted for incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
Local agency Rule No. Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD............................. 4305 Boilers, Steam Generators, 12/19/96 03/03/97
and Process Heaters.
SJVUAPCD............................. 4351 Boilers, Steam Generators, 10/19/95 03/26/96
and Process Heaters--
Reasonably Available
Control Technology.
SJVUAPCD............................. 4701 Internal Combustion Engines. 12/19/96 03/10/98
SJVUAPCD............................. 4703 Stationary Gas Turbines..... 10/16/97 03/10/98
----------------------------------------------------------------------------------------------------------------

We proposed a limited approval because we determined that these
rules improve the SIP and are largely consistent with the relevant CAA
requirements. We simultaneously proposed a limited disapproval because
some rule provisions conflict with section 110 and part D of the Act.
These provisions include the following:
1. Exemption from regulation, or exemption from federal
enforceability of regulation, of facilities located west of Interstate
Highway 5 in Fresno, Kern, or Kings county (the ``West Side
Exemption'').
2. Automatic exemption from regulation of emissions which occur
during start-up, shutdown, or breakdown conditions.
3. The application of the four rules and the circumstances under
which sources might be exempt from the rules.
4. The absence of explicitly stated averaging times for emissions
concentration limits.
5. The absence of interim parametric monitoring in instances of
deferred source testing.
6. The overly lenient use of representative testing to fulfill
monitoring requirements.
7. The lack of a requirement for a 10% additional reduction of
emissions beyond established baselines as an environmental benefit when
sources meet rule requirements via an alternative emission control
plan.
8. The failure to require physical modification of an exempted unit
to assure its operation at or below the rule application capacity
threshold when the unit's nameplate capacity exceeds this threshold.
9. The failure to require source tests to be performed on units
using each fuel which is allowed to be burned in that unit.
10. The lack of source test requirements for certain units through
May 31, 1999.
11. The lack of specificity as to what information is required to
be recorded and maintained as part of recordkeeping requirements.
12. The frequency of required compliance testing for internal
combustion engines under Rule 4701.
13. The lack of specificity as to what operating records and
support documentation are to be maintained by owners claiming exemption
to the requirements of Rule 4701.
14. The allowance until May 31, 2001 for Reasonably Available
Control Technology (``RACT'') compliance for certain internal
combustion engines under Rule 4701.
15. Use of 14 day averaging to determine compliance under the
alternative emission control plan provisions of Rule 4701.
16. Excessive director's discretion in specifying what method is to
be used to determine the applicable conversion factor from fuel use to
engine emissions in the alternative emission control plan provisions of
Rule 4701.
17. The inclusion of the factor AE_Motor to account for
emissions avoided by replacing internal combustion engines with
electric motors.
18. The lack of reference to continuous emission monitoring system
requirements and reporting requirements of 40 CFR part 60.
Our proposed action contains more information on the basis for this
rulemaking and on our evaluation of the submittals.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. The
comment period was subsequently extended for an additional 30 days.
During and after the 60-day comment period, we received comments from
the following parties.
1. Mark Boese, San Joaquin Valley Unified Air Pollution Control
District (``SJVUAPCD'' or ``the District''); letter dated November 10,
1998.
2. Marc Chytilo, Environmental Defense Center (``EDC''); letter
dated November 13, 1998.
3. William A. Brommelsiek, Chevron USA Production Company
(``CUPC''); letter dated November 13, 1998.
4. Malcolm C. Weiss, McClintock, Weston, Benshoof, Rochefort,
Rubalcava, & MacCuish LLP (``MWB''); letter dated November 12, 1998.
5. David R. Farabee, Pillsbury, Madison, & Sutro LLP (``PMS'');
letter dated November 13, 1998.
6. Bruce Nilles, Earthjustice, email dated November 14, 2001.
The letter from EDC expressed unequivocal support for our proposed
action. The letter from CUPC concurred with and incorporated by
reference the comments submitted by MWB. The email from Earthjustice
noted the exemption in Rule 4701 for engines used in agricultural
production and requested that this exemption be added to the rule
provisions determined by EPA to be deficient. Since this comment was
received well after the close of the comment period, EPA simply
acknowledges it in the present rulemaking and will defer any
determination of whether the agricultural exemption fails to implement
CAA requirements until such time as the State of California submits a
revised version of this rule. The remainder of the comments and our
responses are summarized below.

[[Page 9211]]

Comment: SJVUAPCD commented on a number of instances where EPA
found that the rules should be made applicable to more sources. These
instances include sections 4.1.5 and 5.2 of Rule 4305; and section 3.11
of Rule 4701. SJVUAPCD objected to our findings by referring to their
cost effectiveness analyses which they performed while developing these
rules. These analyses were based on a cost effectiveness threshold of
$9700 per ton of NO_X reduced, and SJVUAPCD objected to our
proposed requirement that their rules be made applicable to additional
sources on the grounds that to do so would incur costs to sources that
exceed SJVUAPCD's threshold.
Response: SJVUAPCD provided no information on how and when they
selected $9,700 per ton NO_X reduced as a cost effectiveness
threshold for the subject rules. We believe this figure may have been
generated originally by the South Coast Air Quality Management District
in the 1980s and has no link to applicable RACT or attainment
requirements. In evaluating RACT, we have reviewed analogous
requirements contained in other District, state and federal rules and
guidance including RACT determinations developed by the California Air
Resources Board (CARB). Relevant CARB RACT determinations, for example,
incorporate cost effectiveness thresholds as high as $24,000/ton. We
retain the specified deficiencies as proposed, but acknowledge that
SJVUAPCD may be able to correct them by demonstrating local
circumstances that justify alternative RACT limits.
Comment: SJVUAPCD commented on EPA's finding that the emission
limits in section 5.1.3 of Rule 4701 should be made more stringent.
Again SJVUAPCD's objection was based on their cost effectiveness
threshold of $9700 per ton of NO_X reduced.
Response: Again, we have reviewed analogous requirements contained
in other District, state and federal rules and guidance including RACT
determinations developed by CARB and compared these to the limits in
section 5.1.3. We retain the specified deficiencies as proposed, but
acknowledge that SJVUAPCD may be able to correct them by demonstrating
local circumstances that justify alternative RACT limits.
Comment: SJVUAPCD objected to our requirement that an alternate
emissions limit be applicable during natural gas curtailment on the
grounds that this would necessitate additional emissions testing. Also
SJVUAPCD stated that gas curtailments can last longer than the 168
hours allowed by EPA.
Response: EPA does not intend that additional source testing be
required and withdraws our comment to this effect in regard to section
6.3 of Rule 4351. However, if gas curtailment extends beyond 168 hours
of operation per year EPA does require that the standard emissions
limitations for non-gaseous fuel firing be met.
Comment: SJVUAPCD objected to our disallowance of their exemption
of sources that operate only during winter months.
Response: The CAA requires that RACT level of controls be
implemented at major sources of NO_X year-round. This
requirement of the CAA is addressed in a March 30, 1994 memorandum
``Nitrogen Oxides Questions from the Ohio EPA,'' U.S. EPA, Ozone/Carbon
Monoxide Programs Branch. The EPA's RACT guidance for volatile organic
compounds (VOC) states that seasonal controls are generally not allowed
(EPA clarification to Appendix D of the November 24, 1987 Federal
Register, ``Issues Relating to VOC Regulations Cutpoints, Deficiencies,
and Deviations,'' revised January 1, 1990). As stated in the
NO_X Supplement to the General Preamble (57 FR 55625,
November 25, 1992), the VOC RACT guidance is generally applicable to
NO_X RACT. Thus the limitation on seasonal controls also
applies to NO_X RACT.
Comment: SJVUAPCD objected to our requirement that averaging times
for emissions measurements be explicitly stated in the rules.
Response: EPA believes that an explicit averaging time is necessary
in order that emissions limits be enforceable on a continuous basis.
This is consistent with the CARB RACT determination as well as other
SIP-approved rules for these source categories.
Comment: SJVUAPCD commented that the excess emissions provisions in
section 5.5.2 of Rule 4305 are consistent with EPA policy.
Response: On September 20, 1999, EPA issued a policy guidance
document entitled ``State Implementation Plans: Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown,'' U.S. EPA,
Office of Air Quality Planning and Standards. This guidance document is
intended to assist states in drafting excess emissions provisions into
SIPs that are consistent with the requirements of the federal Clean Air
Act. Generally speaking, automatic exemptions from emissions limits are
allowed during start-up and shutdown only insofar as control
technologies or strategies are shown to be technically infeasible
during these periods and are not allowed during malfunctions. The
existing exemptions in Rule 4305 apply during malfunction and are not
time-limited during start-up and shutdown and thus do not meet the
requirements of the Act as interpreted by EPA policy.
Comment: SJVUAPCD expressed concern that EPA's requirement for
equipment tune-ups between source tests may result in setting operating
parameters at different levels than were established during source
tests.
Response: EPA believes that equipment tune-ups, properly conducted,
will result in decreased emissions. See, for example, the procedures
described in Attachment 1 to the CARB Determination of Reasonably
Available Control Technology for Industrial, Institutional, and
Commercial Boilers, Steam Generators, and Process Heaters dated July
18, 1991.
Comment: SJVUAPCD expressed concern that requiring source tests for
each fuel burned would be impractical since some fuels are burned only
as a back-up during natural gas curtailment and then only for a limited
period of time.
Response: EPA agrees with SJVUAPCD's concern and withdraws this
requirement for section 6.3 of Rule 4351.
Comment: SJVUAPCD objected to EPA's disallowance of representative
testing for internal combustion engines.
Response: EPA continues to disapprove of representative testing for
internal combustion engines due to the inherently high variability of
emissions from units within this source category. This is consistent
with other rulemakings EPA has promulgated for this source category.
Comment: SJVUAPCD stated that 14-day averaging is appropriate for
evaluating compliance with an Alternative Emissions Compliance Plan
(``AECP'') as opposed to a shorter averaging time as would be required
for a standard compliance determination.
Response: EPA's interpretation of CAA requirements with respect to
long-term (greater than 24 hours) averaging of emissions is contained
in section 16.13 of our January 2001 Economic Incentive Program
guidance as well as in the January 20, 1984 memorandum ``Averaging
Times for Compliance with VOC Emission Limits--SIP Revision Policy'',
U.S. EPA Office of Air Quality Planning and Standards. Any State that
wishes to allow long-term averaging for compliance evaluation for RACT
limits must include in the SIP submittal a justification that the long-
term average is needed and demonstrate that

[[Page 9212]]

averaging will not interfere with attainment or other requirements of
the Act. Since the submittal for Rule 4701 does not contain this
information, EPA cannot approve the long-term averaging provisions in
section 8.0 of Rule 4701.
Comment: SJVUAPCD explained that the emission factor EF_i
in section 8.3.2 of Rule 4701 is the actual NO_X emissions as
determined by the most recent source test and not a general emission
factor as was EPA's concern.
Response: EPA agrees and withdraws our previous comment concerning
section 8.3.2 of Rule 4701.
Comment: SJVUAPCD stated that emissions reductions obtained when
engines are replaced with an electric motor should be allowed to be
included in an AECP so long as the engines are not being replaced
solely to comply with RACT limits.
Response: EPA agrees and withdraws our previous comment concerning
section 8.4 of Rule 4701.
Comment: MWB and PMS assert that the EPA's determination that
NO_X sources may contribute significantly to PM-10 levels
which exceed the standard in the area and that, therefore, Reasonably
Available Control Measures (``RACM'') are required at West Side sources
is contrary to documentation provided by the SJVUAPCD.
Response: The SJVUAPCD presented their PM-10 Attainment
Demonstration Plan Progress Report 1997-1999 (``Progress Report'') to a
hearing of their Governing Board on June 15, 2000. The Progress Report
states that during winter months secondary ammonium nitrate is the
largest contributor to PM mass and that the core sites were found to be
ammonia rich with the formation of secondary ammonium nitrate limited
by the amount of NO_X rather than ammonia. This finding is
consistent with our September 14, 1998 Proposed Rulemaking. RACM is
required for the West Side NO_X sources because section
189(a)(1)(C) and section 189(e) of the Act require RACM at major
stationary sources of PM-10 precursors in PM-10 nonattainment areas
independent of separate ozone attainment requirements. The SJVUAPCD has
not demonstrated to EPA that the West Side sources do not contribute
significantly to PM-10 levels which exceed the standard in the area.
Comment: MWB asserts that the West Side Exemption is required under
state law since emissions from that area do not impact other portions
of the SJVUAPCD.
Response: Without commenting on the provisions of California state
law, EPA notes that our interpretation of the CAA requirements
applicable to the subject Rules does not rest on any finding regarding
transport of pollutants within the SJVUAPCD.
Comment: MWB asserts that EPA does not have authority under the CAA
to grant limited approval and simultaneous limited disapproval of a
Rule. MWB further expresses confusion over the effect of such an
action.
Response: While the Act does not expressly provide for limited
approvals, EPA is using its ``gap-filling'' authority under section
301(a) of the Act in conjunction with the section 110(k)(3) approval
provision to interpret the Act to provide for this type of approval
action. EPA routinely publishes limited approval/limited disapproval
actions (e.g. we did so for nine different rules in the SJVUAPCD in the
year 2000 alone). Under this action EPA approves and can enforce the
entire rule as submitted, even those portions that prohibit full
approval. For example, upon the effective date of this final
rulemaking, the West Side Exemption becomes part of the SIP and will
remain in the SIP until such time as EPA approves a SIP revision
removing the exemption or EPA promulgates a FIP. The disapproval only
applies to whether the submittal meets specific requirements of the Act
and does not affect incorporation of the rule into the approved,
federally enforceable SIP.
Comment: MWB and PMS assert that since the Rules were submitted to
EPA as part of the ozone SIP, EPA lacks the authority to consider
whether the provisions of the Rules are sufficient to meet requirements
of the CAA related to PM-10 and that, further, this is not the proper
time to consider CAA requirements related to PM-10.
Response: As stated in the September 14, 1998 Notice of Proposed
Rulemaking, section 189(a)(1)(C) of the Act requires that RACM for the
control of PM-10 be implemented in moderate nonattainment areas
(including the SJVUAPCD) by December 10, 1993. These control
requirements also apply to major stationary sources of PM-10 precursors
(including NO_X) under section 189(e) of the Act unless the
EPA determines that such sources do not contribute significantly to PM-
10 levels which exceed the standard in the area. Section 172(c)(1)
provides that RACM shall include, at a minimum, those reductions in
emissions from existing sources as may be obtained through the adoption
of RACT. The four subject Rules contain provisions waiving RACT
requirements under the SIP for facilities on the West Side. This
constitutes a failure to implement RACM at these facilities as required
under section 189(a)(1)(C) of the Act. Section 110(l) of the Act
forbids EPA from approving SIP revisions which would interfere with any
applicable requirement, including section 189(a)(1)(C). For this reason
EPA must disapprove the West Side Exemption.
Comment: MWB asserts that EPA has inappropriately concluded that
Best Available Retrofit Control Technology (``BARCT''), as required
under state law, is the same as RACT.
Response: EPA has determined that the control requirements waived
under the West Side Exemption are reasonably available. This
determination was made by comparing these requirements with those
implemented elsewhere in the SJVUAPCD and the State of California, as
well as by referring to applicable Determinations of Reasonably
Available Control Technology published by the California Air Resources
Board. We agree with the commentor that states can adopt requirements
more stringent than those required by federal RACT. The SJVUAPCD could,
theoretically, demonstrate that NO_X emission limits
currently applied to the east-side sources are more stringent than
RACT, and are therefore not needed to fulfill RACT for the West Side
sources. However, some level of control beyond the existing full
exemption for the West Side sources is clearly needed to fulfill RACT.
Comment: MWB and PMS noted that EPA objected to certain of the
compliance deadlines in Rule 4701. MWB and PMS assert that it would be
impractical to accelerate these deadlines.
Response: EPA notes that the deadlines to which the commentors
refer have now passed rendering moot this particular objection by EPA.
Comment: MWB and PMS assert that the District has shown, through
modeling, that the reduction of NO_X emissions from West Side
sources would not contribute to the attainment of the ozone National
Ambient Air Quality Standards (``NAAQS'') in the District and that
therefore the West Side Exemption is consistent with CAA requirements
for ozone.
Response: Since our September 14, 1998 Notice of Proposed
Rulemaking, EPA on November 8, 2001 (66 FR 56476), published a final
rulemaking action reclassifying the San Joaquin Valley Ozone
Nonattainment Area from serious to severe nonattainment because the
area was unable to attain the ozone standard by the serious area
deadline of 1999. This indicates that the previous control strategy and
modeling that supported the West Side Exemption were inadequate to
attain the standard by the applicable attainment date and that
substantial additional reductions of

[[Page 9213]]

ozone precursors (NO_X and/or VOC) will be necessary to
achieve attainment of the ozone NAAQS.

III. EPA Action

Two of the rule provisions listed above as being in conflict with
the Act included compliance dates that we proposed as deficient for
being too far in the future. However, both of those dates have now
passed so those issues are moot. The relevant requirements are found in
section 6.3 of Rule 4351 and section 7.3 of Rule 4701. As stated in the
above responses, there are three specific instances where we agree with
SJVUAPCD's comments and therefore withdraw our proposed finding that
the subject rule provisions are deficient. These are found in section
6.3 of Rule 4351, and sections 8.3.2 and 8.4 of Rule 4701. For the
remainder of the above listed rule provisions, we have concluded that
they are in conflict with the Act and are thus grounds for a limited
disapproval. Therefore, as authorized in sections 110(k)(3) and 301(a)
of the Act, EPA is finalizing a limited approval of the submitted
rules. This action incorporates the submitted rules into the California
SIP, including those provisions identified as deficient. As authorized
under section 110(k)(3), EPA is simultaneously finalizing a limited
disapproval of the rules. As a result, sanctions will be imposed unless
EPA approves subsequent SIP revisions that correct the rule
deficiencies within 18 months of the effective date of this action.
These sanctions will be imposed under section 179 of the Act according
to 40 CFR 52.31. In addition, EPA must promulgate a Federal
implementation plan (FIP) under section 110(c) unless we approve
subsequent SIP revisions that correct the rule deficiencies within 24
months. Note that the submitted rules have been adopted by the San
Joaquin Valley Unified Air Pollution Control District, and EPA's final
limited disapproval does not prevent the local agency from enforcing
them.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''

B. Executive Order 13211

This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.

C. Executive Order 13045

Executive Order 13045, entitled 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 Executive Order 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 Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.

D. Executive Order 13132

Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612, Federalism and
12875, Enhancing the Intergovernmental Partnership. Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely acts on a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

E. Executive Order 13175

Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.

F. 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 act on 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.

[[Page 9214]]

EPA's disapproval of the state request under section 110 and
subchapter I, part D of the Clean Air Act does not affect any existing
requirements applicable to small entities. Any pre-existing federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect state
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, 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).

G. 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
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 costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action acts on 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.

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to today's action because it
does not require the public to perform activities conducive to the use
of VCS.

I. 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major'' rule as defined by 5 U.S.C.
804(2).

J. 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 April 29, 2002. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.

Dated: January 14, 2002.
Wayne Nastri,
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)(230)(i)(D)(3), (244)(i)(E)(2) and (254)(i)(A)(5) to read as
follows:

Sec. 52.220 Identification of plan.

* * * * *
(c) * * *
(230) * * *
(i) * * *
(D) * * *
(3) Rule 4351 adopted on October 19, 1995.
* * * * *
(244) * * *
(i) * * *
(E) * * *
(2) Rule 4305 adopted on December 19, 1996.
* * * * *
(254) * * *
(i) * * *
(A) * * *
(5) Rule 4701 adopted on December 19, 1996, and Rule 4703 adopted
on October 16, 1997.
* * * * *

[FR Doc. 02-4643 Filed 2-27-02; 8:45 am]
BILLING CODE 6560-50-P

Notices For
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2002
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Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

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