[Federal Register Volume 64, Number 60 (Tuesday, March 30, 1999)]
[Rules and Regulations]
[Pages 15129-15132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7668]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 211-0127a; FRL-6313-4]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision; El Dorado County Air Pollution
Control 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 El Dorado County Air
Pollution Control District (EDCAPCD), Rule 239 concerns control of
emissions of oxides of nitrogen (NOX) from natural gas-fired
residential water heaters.
This approval action will incorporate this rule into the Federally
approved SIP. The intended effect of approving of this rule 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.
[[Page 15130]]
DATES: This rule is effective on June 1, 1999 without further notice,
unless EPA receives adverse comments by April 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 rule
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,
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
El Dorado County Environmental Management Department, Air Pollution
Control District, 2850 Fairlane Court, Placerville, CA 95667
FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office, AIR-4,
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901 Telephone: (415) 744-
1185.
SUPPLEMENTARY INFORMATION:
I. Applicability
The rule being approved into the California SIP is EDCAPCD's Rule
239, Natural Gas-fired Residential Water Heaters. Rule 239 was
submitted by the State of California to EPA on June 23, 1998.
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.
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. El
Dorado County Air Pollution Control District (EDCAPCD) is classified as
serious 1; therefore this area is subject to the RACT
requirements of section 182(b)(2) cited below and the November 15, 1992
deadline.
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\1\ EDCAPCD area retained the designation of nonattainment and
is classified by operation of law pursuant to sections 107(d) and
181(a) upon the date of enactment of the CAA. See 55 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 this rule; however, this rule is expected
to achieve substantial reductions of NOX because it applies
to a large number of small sources.
This document addresses EPA's direct final action for EDCAPCD's
Rule 239, Natural Gas-fired Residential Water Heaters. EDCAPCD's Rule
239 was first adopted on March 24, 1998.
The State of California submitted the rule to EPA for incorporation
into its SIP on June 23, 1998. Rule 239 was found to be complete on
August 25, 1998 pursuant to EPA's completeness criteria that are set
forth in 40 CFR Part 51, Appendix V 2 and is 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. EDCAPCD's Rule 239 specifies exhaust emission
standards for NOX from natural gas-fired residential water
heaters. This rule was originally adopted as part of 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 this rule.
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
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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 52 FR 45044 (November 24, 1987); ``Issues Relating to VOC
regulation Cutpoints, Deficiencies, and Deviation, 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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South Coast Air Quality Management District (SCAQMD) has developed
a protocol document entitled Nitrogen Oxides Emissions Compliance
Testing for Natural Gas-fired Water Heaters and Small Boilers jointly
with the industry and replaces the ANSI requirements currently used by
manufacturers. EPA has used SCAQMD's guidance document in evaluating
EDCAPCD's Rule 239 for consistency with the enforceability
requirements.
There is currently no version of EDCAPCD's Rule 239, Natural Gas-
fired Residential Water Heaters, in the SIP. Rule 239 establishes
NOX and carbon monoxide (CO) emissions limits for natural
gas-fired residential water heaters with rated heat inputs of greater
than or equal to 75,000 Btu per hour.
The submitted rule includes the following provisions:
General provisions including applicability, exemptions,
and definitions.
Exhaust emissions standards for oxides of nitrogen
(NOX).
Administrative and monitoring requirements including
compliance schedule, reporting requirements, monitoring and record
keeping, and test methods.
Rules submitted to EPA for approval as revisions to the SIP must be
fully enforceable, must maintain or strengthen the SIP and must conform
with EPA policy in order to be approved by EPA. When reviewing rules
for SIP approvability, EPA evaluates enforceability elements such as
test methods, record keeping, and compliance testing in addition to
applicable guidance regarding emission limits. Rule 239 strengthens the
SIP through the addition of enforceable measures such as record
keeping, test methods, definitions, and emissions limits. Incorporation
of the rule into the SIP would decrease the NOX emissions
allowed by the SIP.
A detailed discussion of the sources controlled, the controls
required, and justification can be found in the
[[Page 15131]]
Technical Support Document (TSD) for Rule 229, dated December 30, 1998,
which is available from the U.S. EPA Region IX office.
EPA has evaluated the submitted rule and has determined it
consistent with the CAA, EPA regulations and EPA policy. Therefore,
Rule 239, Natural Gas-fired Residential Water Heaters; is 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.
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 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 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 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 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
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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 June 1, 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, Oxides of
nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, 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: March 11, 1999.
Laura Yoshii,
Deputy 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) (256) (D) to
read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(256) * * *
(i) * * *
(D) El Dorado County Pollution Control District .
(1) Rule 239 adopted on March 24, 1998.
* * * * *
[FR Doc. 99-7668 Filed 3-29-99; 8:45 am]
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