E9-9436. Revisions to the California State Implementation Plan, South Coast Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the Federal Register on July 30, 2008 and concern oxides of nitrogen (NOx) emissions from gaseous- and liquid-fueled internal combustion engines. We are approving a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Effective Date: This rule is effective on May 27, 2009.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2008-0502 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Francisco Dóñez, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

Table of Contents

I. Proposed Action

II. Public Comments and EPA Responses

III. EPA Action

IV. Statutory and Executive Order Reviews

I. Proposed Action

On July 30, 2008 (73 FR 44204), EPA proposed to approve the following rule into the California SIP.

Local agency	Rule No.	Rule title	Adopted	Submitted
SCAQMD	1110.2	Gaseous- and Liquid-Fueled Internal Combustion Engines	02/01/08	05/20/08

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following parties.

1. Charles Humphrey, Jr., Sempra Energy Utilities (SEU); letter dated August 29, 2008 and received August 29, 2008.

2. B. Sachau; e-mail message dated July 30, 2008 and received July 30, 2008.

3. U.S. Citizen (anonymous); web comment submitted July 31, 2008.

The comments and our responses are summarized below.

Comment #1: Rule 1110.2, subsection (f)(1)(G), requires that portable analyzers be operated only by persons appropriately trained and certified by the District. However, as of the date of the letter, the District had not initiated training or certification programs for this purpose. If operators are unable to obtain this required training in a timely manner, they may be prevented, through no fault of their own, from certifying compliance by the end of the reporting year as the rule requires. (SEU)

Response #1: This comment more regards how Rule 1110.2 is implemented in the near term rather than the requirements of the rule. The commenter does not dispute those rule requirements. EPA's proposal to approve Rule 1110.2 into the California SIP is based on the rule's requirements as written, which fulfill the relevant CAA criteria for SIP approval. EPA contacted SCAQMD regarding this question in early October. The District informed us at that time that some training sessions had already been scheduled. For further questions, EPA recommends contacting SCAQMD directly, or referring to the District's rule support documents at http://www.aqmd.gov/​rules/​support.html. See also response #3.

Comment #2: Rule 1110.2, subsection (f)(1)(C), requires that source testing shall be conducted in accordance with a District-approved source test protocol. However, as of the comment letter date the District had yet to issue written approval of the source test protocols that SEU submitted for its engines. Therefore, SEU may not be able to perform the required source tests before the Rule 1110.2 deadline, putting the affected engines at risk of violating the rule. (SEU)

Response #2: In a conversation in early October, SCAQMD assured us that if for some reason the District is unable to act on the submitted source test protocols in a timely manner, they would extend the relevant deadlines. Also see Response #1 and Response #3.

Comment #3: By being constrained from fulfilling certain rule requirements in a timely manner (as in Comments #1 and #2 above), Title V facilities with engines regulated by Rule 1110.2 risk not being able to certify compliance for the period ending December 31, 2008. This problem could have significant repercussions for facilities, including leaving them susceptible to citizen lawsuits alleging violations of their Title V permits. Similarly, affected companies may not be able to provide a New Source Review (NSR) certification for a given Title V facility. We request that EPA consider these Title V compliance issues if amended Rule 1110.2 becomes SIP-approved. (SEU)

Response #3: EPA acknowledges this concern and recognizes that sources may depend on District action in order to fully comply with the rule. Although these rule implementation issues do not affect our decision to approve Rule 1110.2, we are willing to work with SCAQMD to reasonably resolve concerns with related Title V permitting requirements.

The other comments received did not relate to our proposal to approve Rule 1110.2, and are therefore not addressed here.

III. EPA Action

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 26, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Particulate matter
• Reporting and recordkeeping requirements

Dated: March 2, 2009.

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 and reserving paragraph (c)(359) and by adding paragraph (c)(360) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(359) [Reserved]

(360) New and amended regulations were submitted on May 20, 2008 by the Governor's designee.

(i) Incorporation by Reference.

(A) South Coast Air Quality Management District

(1) Rule 1110.2, “Gaseous- and Liquid-Fueled Internal Combustion Engines, adopted on August 3, 1990 and amended February 1, 2008.