Federal Register / Vol. 68, No. 40 / Friday, February 28, 2003 / Rules and Regulations 9561

1Actually, all emission reductions used for NSR 

purposes must be surplus at the time of use in order 

to be creditable, not just ERCs, which are credits for 

emission reductions that have been banked. We are 

focusing on ERCs, however, because these are the 

only emission reductions used for NSR offset 

purposes with a risk of being non-surplus because 

the credits were generated and banked at an earlier 

time. Moreover, since the District’s rules primarily 

rely upon ERCs generated and banked within the 

District for compliance with offset requirements, it 

Continued

Subpart XX—West Virginia 

2. Section 52.2520 is amended by 

adding paragraph (c)(52) to read as 

follows:

§ 52.2520 Identification of plan.

* * * * *

(c) * * * 

(52) Revisions to the West Virginia 

Regulations 45CSR13—Permits for 

Construction, Modification, Relocation 

and Operation of Stationary Sources of 

Air Pollutants, Notification 

Requirements, Administrative Updates, 

Temporary Permits, General Permits, 

and Procedures for Evaluation, 

submitted on September 21, 2000 by the 

West Virginia Department of 

Environmental Protection: 

(i) Incorporation by reference. 

(A) Letter of September 21, 2000, from 

the West Virginia Department of 

Environmental Protection transmitting 

revision to West Virginia Regulation 

45CSR13. 

(B) West Virginia Regulations 

45CSR13—Permits for Construction, 

Modification, Relocation and Operation 

of Stationary Sources of Air Pollutants, 

Notification Requirements, 

Administrative Updates, Temporary 

Permits, General Permits and 

Procedures for Evaluation, effective June 

1, 2000. 

(ii) Additional Material—Remainder 

of the State submittal pertaining to the 

revisions listed in paragraph (c)(52)(i) of 

this section.

[FR Doc. 03–4629 Filed 2–27–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[CA 266–0383; FRL–7454–4] 

Revisions to the California State 

Implementation Plan, Ventura Air 

Pollution Control District

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing approval of 

revisions to the Ventura Air Pollution 

Control District (‘‘District’’) portion of 

the California State Implementation 

Plan (‘‘SIP’’). These revisions were 

proposed in the Federal Register on 

June 24, 2002, and concern the District’s 

new source review (‘‘NSR’’) rules. We 

are now approving these revisions 

under the Clean Air Act as amended in 

1990 (‘‘CAA’’ or ‘‘the Act’’).

EFFECTIVE DATE: This rule is effective on 

March 31, 2003.

ADDRESSES: You can inspect copies of 

the administrative record for this action 

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. 

Air and Radiation Docket and 

Information Center, U.S. 

Environmental Protection Agency, 

Room B–102, 1301 Constitution 

Avenue, NW., (Mail Code 6102T), 

Washington, DC 20460. 

California Air Resources Board, 

Stationary Source Division, Rule 

Evaluation Section, 1001 ‘‘I’’ Street, 

Sacramento, CA 95814. 

Ventura County Air Pollution Control 

District, 669 County Square Drive, 

Ventura, California 93003.

A copy of the rules is also available 

via the Internet at http://

arbis.arb.ca.gov/drdb/ven/cur.htm.

FOR FURTHER INFORMATION CONTACT:

Nahid Zoueshtiagh, EPA Region IX, 

(415) 972–3978. E-mail address: 

zoueshtiagh.nahid@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

List of Contents: 

I. Proposed Action 

A. How the Deficiencies Were Corrected 

B. Creation of an Annual Equivalency 

Program 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews

I. Proposed Action 

On June 24, 2002, we proposed to 

approve certain District rules into the 

California SIP. 67 FR 42516. We are 

finalizing that action today by 

approving the following District rules 

into the SIP:

Rule No. Rule title 

10 .............................. Permits Required. 

26.1 ........................... New Source 

Review—Definitions. 

26.2 ........................... New Source 

Review—Requirements. 

26.3 ........................... New Source 

Review—Exemptions. 

26.4 ........................... New Source 

Review—Emission 

Banking. 

26.6 ........................... New Source 

Review—Calculations. 

Rule No. Rule title 

26.11 ......................... New Source 

Review—ERC 

Evaluation At Time 

of Use. 

A. How the Deficiencies Were Corrected 

We proposed to approve the District 

rules because we determined that they 

complied with the relevant CAA 

requirements, namely part D of title I 

and section 110(k) of the CAA. In the 

proposed action, we found that the 

District had corrected all of the 

deficiencies initially identified in our 

limited approval and limited 

disapproval published in the Federal 

Register on December 7, 2000. 65 FR 

76567. The California Air Resources 

Board (‘‘CARB’’) submitted the District’s 

revised rules addressing our identified 

deficiencies on May 20, 2002. In our 

proposed approval, we found that the 

District had corrected the following 

deficiencies: (1) Lack of a requirement 

for relocating sources to obtain an 

authority to construct (‘‘ATC’’) permit, 

(2) failure to require that emission 

reduction credits (‘‘ERCs’’) used as NSR 

emission offsets be surplus at the time 

of use, (3) failure to provide for denial 

of permits for sources in violation of 

Prevention of Significant Deterioration 

(‘‘PSD’’) increments, and (4) improper 

reliance on the California 

Environmental Quality Act (‘‘CEQA’’) 

analysis for the alternatives analysis 

required by section 173(a)(5) of the 

CAA. We received no comments on 

deficiency numbers 1, 3 and 4 or how 

the District corrected them. As such, for 

the complete discussion on these 

deficiencies and the corrections, please 

review our proposed approval and the 

TSD for that proposed action. We 

discuss the correction for deficiency 

number 2 in greater detail in this notice.

B. Creation of an Annual Equivalency 

Demonstration Program 

As part of the its revised NSR rules, 

the District created an annual 

equivalency demonstration program to 

correct the deficiency that ERCs used for 

NSR offset purposes are not required by 

the District to be surplus at the time of 

use.1 The basis for the approval of the 

9562 Federal Register / Vol. 68, No. 40 / Friday, February 28, 2003 / Rules and Regulations 

is appropriate to focus the surplus discussion on 

ERCs. 2For example, on February 13, 2003, EPA 

proposed to approve San Joaquin Valley Air 

Pollution Control District’s NSR program, which 

includes an annual equivalency demonstration. 68 

FR 7330. On September 18, 2000, EPA also 

published a proposed limited approval and limited 

disapproval for a NSR program that would allow an 

annual equivalency demonstration program for the 

Bay Area Air Quality Management District. 65 FR 

56284. On December 4, 1996, EPA approved South 

Coast Air Quality Management District NSR rule 

revisions based in part on the District’s 

commitment to implement a tracking system to 

show that in the aggregate it will provide for the 

offsets required by the CAA. 61 FR 64291. 3The words ‘‘discount’’ and ‘‘adjust’’ are used 

synonymously in this action, and generally refer to 

a reduction of an ERC by the portion of the original 

emission reduction that is no longer surplus.

4Though the CAA requires that permitting 

authorities, including local air districts, have minor 

source permitting programs, it does not require that 

minor sources obtain offsets. As such, ERCs used 

to offset new emissions from minor sources may be 

available for use in the annual equivalency 

demonstration if the District can demonstrate that 

the emission reductions underlying the ERCs are 

surplus to all other requirements of the Act, and are 

otherwise creditable for federal purposes.

5Since CARB only stated its general opinion 

regarding annual equivalency programs and did not 

provide any specific comments for this action that 

required a response, none of CARB’s comments 

have been addressed in this Public Comments and 

EPA Responses section.

6The changes to item number 5 is discussed in 

the response to comment number 4. The change in 

item number 2 was the addition of the language ‘‘or 

contained in an approved attainment plan.’’ Though 

EPA received no comments on this item, we 

included this language to ensure that any and all

reductions relied upon or required for attainment 

purposes be considered non-surplus, whether or not 

the reduction is explicitly set forth in an attainment 

plan.

annual equivalency demonstration 

program is contained in CAA section 

173(a)(1)(A)’s mandate that new and 

modified stationary sources seeking to 

commence operating in a nonattainment 

area must be required by the state 

permitting program to obtain sufficient 

offsetting emission reductions 

(‘‘offsets’’) such that ‘‘the total allowable 

emissions from existing sources in the 

region, from new or modified sources 

which are not major emitting facilities, 

and from the proposed source will be 

sufficiently less than total emissions 

from existing sources * * * so as to 

represent reasonable further progress 

* * *.’’ This statutory focus on total 

regional emissions supports the 

approval of a District offset program that 

ensures equivalency with the federal 

NSR offset requirements on an annual 

aggregate basis. EPA is also working 

with other California Districts to help 

them craft approvable annual 

equivalency demonstration programs.2

The goal of the District’s offset 

equivalency tracking system and annual 

reports, therefore, is to show that the 

District’s rules are requiring 

appropriately discounted 3 ERCs that 

are, in the aggregate, equivalent to the 

credits that would be required under the 

federal major source NSR offset 

requirements. To show equivalency, 

pursuant to District Rule 26.11, the 

District intends to rely upon ERCs used 

in minor source permitting actions 4 to 

make up for any loss in the creditable 

amount of ERCs provided by a permit 

applicant for major source NSR permits 

due to surplus adjustment.

To ensure appropriate District 

implementation and EPA oversight of 

the annual equivalency program, the 

District and EPA entered into a 

memorandum of understanding 

(‘‘MOU’’) on February 18, 2003 

describing in detail how the District will 

implement the annual equivalency 

program. Generally, the MOU sets forth 

the records to be maintained by the 

District, the information the District 

must include in each annual report 

submitted to EPA, and the necessary 

surplus analysis to be performed by the 

District at the time of permitting. The 

MOU also describes the proper use of 

the hammer provision, District Rule 

26.11.C.6., which requires that the 

District discontinue the use of the 

equivalency program once an annual 

report demonstrates a deficit of 

creditable ERCs compared to the 

amount of reductions necessary to offset 

emissions for new or modified major 

NSR sources. As of the time the report 

demonstrates a deficit, the District rules 

require that sources provide enough 

surplus-adjusted ERCs to cover any 

required NSR offsets at the time of 

permitting. A copy of the MOU is in the 

Docket and is available to the public 

from the Region IX contact listed in this 

notice. 

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:

• CARB; 5

• California Council for Environment 

and Economic Benefit (‘‘CCEEB’’); 

• The District; and 

• Pillsbury Winthrop on behalf of 

Western States Petroleum Association 

(‘‘WSPA’’). 

The commentors generally supported 

our action to approve the District rules 

into the SIP and the creation of the 

annual equivalency demonstration 

program. The majority of substantive 

comments focused on our interpretation 

of what emission reductions are 

considered non-surplus under Section 

173(c)(2). This interpretation is 

important since the NSR District rules 

being approved closely track the 

language of section 173(c)(2), which 

explicitly excludes emission reductions 

that are ‘‘otherwise required by’’ the 

CAA from use as an NSR offset. As 

section 173(c)(2) does not specifically 

delineate the type of requirements 

included within its scope, EPA’s 

interpretation of the application of the 

provision is very important for proper 

implementation of the NSR program. 

In our proposed approval, we 

described six categories of emission 

reductions that we consider non-surplus 

for NSR offset purposes. Emission 

reductions falling under any of these 

categories are therefore not available for 

use as NSR offsets, whether directly in 

a permitting action or through their use 

in an annual equivalency 

demonstration. In response to comments 

received on the proposed approval and 

after further consideration, we are 

slightly revising item numbers 2 and 5 

to be more consistent with the CAA.6

Since this list of non-surplus reductions 

is only EPA’s interpretation of section 

173(c)(2) and District Rule 26.1.28.b. 

and does not require any change to the 

District’s rules being approved today, 

the revision of the list does not affect 

the approvability of the District’s rules. 

Moreover, the finalized list has been 

incorporated into the MOU between the 

District and EPA, which further ensures 

that the annual equivalency 

demonstration program, including 

surplus adjustment of ERCs, will be 

properly implemented.

The following is the revised and final 

list of what we consider to be nonsurplus emission reduction categories: 

(1) Any emission reduction required 

by a stand-alone federal requirement or 

regulation, including, but not limited to, 

Acid Rain, New Source Performance 

Standard, Reasonably Available Control 

Technology, and Maximum Achievable 

Control Technology, whether or not the 

requirements are part of the State 

Implementation Plan (‘‘SIP’’) or a local 

attainment plan. 

(2) Any emission reduction relied 

upon by a permitting authority for 

attainment purposes, or contained in an 

approved attainment plan, including 

emission reductions relied upon for 

Reasonable Further Progress 

calculations. Reference 

51.165(a)(3)(ii)(G). 

(3) Any emission reduction whose 

original emission is not included in the 

District’s emission inventory. Reference 

51.165(a)(3)(ii)(C)(1).

(4) Any emission reduction based on 

a source-specific or source categoryspecific SIP provision used to comply 

with CAA requirements. 

Federal Register / Vol. 68, No. 40 / Friday, February 28, 2003 / Rules and Regulations 9563

(5) Any emission reduction required 

by a condition of a permit issued to 

comply with CAA new source review 

requirements. Any emission reduction 

required by a permit condition placed 

on a permit solely: 1) to make the 

reduction federally enforceable to meet 

federal creditability criteria for use of 

the reduction as an offset for new source 

review purposes, or 2) to assure 

compliance with a state or local 

requirement that is not federally 

enforceable shall not be included in this 

class. Reference 51.165(a)(3)(ii)(G). 

(6) Any emission reduction based on 

a source-specific emission limitation 

resulting from an Environmental 

Protection Agency enforcement case. 

The specific comments and EPA 

responses are summarized below: 

Comment 1: CCEEB commented that 

‘‘Section 173(c)(2) * * * does not 

provide that banked emission 

reductions, which were not required 

when banked, must be adjusted again to 

reflect later-adopted emission reduction 

requirements. Further, EPA has not 

promulgated any regulation to require 

such discounting.’’ WSPA provided an 

almost identical comment. 

Response 1: We disagree with 

CCEEB’s and WSPA’s comments. The 

requirement for discounting at the time 

of use derives from the statutory 

requirement that emission reductions be 

surplus of CAA requirements. CAA 

section 173(c)(2). In a 1994 

memorandum, EPA set forth its policy 

that banked ERCs used as NSR offsets 

must be adjusted at the time of permit 

issuance to ensure that they are surplus 

as required by section 173(c)(2). Memo 

from John S. Seitz, Dir., OAQPS to 

David Howekamp, Dir., Region IX Air 

and Toxics Div. (Aug. 26, 1994) (‘‘1994 

Seitz Memo’’). This is important to 

ensure that emission reductions are not 

‘‘double-counted’’ for CAA purposes, 

something prohibited by the CAA. 

Double counting can occur where 

emission reductions are the result of, or 

would have been achieved by, controls 

expressly required by the Act or 

controls used to satisfy requirements of 

the Act. For example, a source may 

voluntarily reduce its emission of 

hazardous air pollutants (‘‘HAPs’’) and 

bank those credits at the time of 

reduction. Some time after these 

reductions are achieved, EPA 

promulgates a Maximum Achievable 

Control Technology (‘‘MACT’’) standard 

that applies to the source. Though these 

credits may be permanent, real, 

quantifiable, and enforceable, the 

promulgation of the new MACT 

standard would render the portion of 

the banked ERC that would have been 

required by the new MACT standard 

unavailable for NSR offset purposes 

because it is no longer in excess of 

requirements under the Act. This is 

important since many HAPs are also 

considered volatile organic compounds 

(‘‘VOCs’’). Without a requirement to 

discount ERCs at the time of use, 

sources could be relying upon emission 

reductions that were otherwise required 

by the CAA. Moreover, the SIP may take 

credit for the reductions achieved by 

this MACT rule, raising the further 

possibility that the reductions would be 

double-counted for attainment purposes 

if not surplus adjusted at the time of 

use. 

More than just preventing possible 

double counting, however, adjusting at 

the time of use is important to generally 

ensure proper implementation of the 

NSR program. The CAA does not 

require or provide for ERC banking 

programs, which means that there are 

no federal requirements ensuring the 

quality of banks or banked credits for 

federal offset purposes. Because of this, 

a surplus at the time of use analysis and 

appropriate adjustment provides an 

important first and only review of the 

proposed ERC’s consistency with NSR 

CAA offset requirements. Without such 

a review, EPA could not assure that 

sources were complying with NSR offset 

requirements of the CAA since most 

ERCs were banked without EPA review 

and many without supporting 

documentation or information. 

Despite the necessity for surplus 

adjustment at the time of use, EPA has 

worked with the District to create a 

system where sources may be able to 

rely on banked ERCs while at the same 

time maintaining the integrity and 

legality of the District’s NSR program. 

Through the use of the annual 

equivalency demonstration program, 

EPA is allowing the District to give full 

credit to ERCs provided by major 

sources for NSR permitting activities as 

long as the District can identify other 

retired or used creditable emission 

reductions that make up for the 

difference within the year accounting 

period. 

Comment 2: Item number 3 in the list 

of categories of non-surplus emission 

reductions in the proposed approval 

reads ‘‘any emission reduction whose 

original emission reduction is not 

included in the District’s emission 

inventory. See 40 CFR 

51.165(a)(3)(ii)(C)(1).’’ The District 

commented that ‘‘[t]he citation [40 CFR 

§ 51.165(a)(3)(ii)(C)(1)] refers * * * only 

to ‘(e)missions reductions achieved by 

shutting down an existing source or 

curtailing production or operating hours 

below baseline levels’. There is not a 

requirement in the Code of Federal 

Regulations to include an emission 

reduction resulting from a source 

employing emission reduction 

techniques, not otherwise required by 

the federal CAA, in the District’s 

emission inventory.’’

Response 2: 40 CFR 51.165 describes 

the minimum regulatory requirements 

for an approvable state NSR permitting 

program. 40 CFR 51.165(a)(3)(ii)(C)(1), 

which deals with offsets, states that 

reductions achieved by shutting down 

an existing source or curtailing 

production or operating hours below 

baseline levels may generally be 

credited in NSR permitting actions if 

such reductions are permanent, 

quantifiable, and federally enforceable, 

and if the area has an EPA-approved 

attainment plan. In contrast to the 

meaning given to it in the District’s 

comment, the provision serves the 

narrow purpose of stating that ERCs 

generated by shutting down a source or 

curtailing production or operating hours 

can only be used if there is an EPAapproved attainment plan and if the 

item is ‘‘explicitly’’ included in the 

most recent emissions inventory. The 

provision is essentially a safeguard to 

make sure that emissions from defunct 

sources are not replaced with new 

emissions without appropriate review to 

ensure that such replacements are 

consistent with attainment purposes for 

the area. The provision in no way limits 

or changes the necessity that all 

emission reductions used for NSR 

offsetting purposes be incorporated into 

the area’s emission inventory, either 

explicitly or implicitly. The use of 

emission reductions for NSR purposes 

whose original emissions are not 

included in the emissions inventory, 

and therefore not considered in the 

planning process, would be adding new 

unaccounted emissions into the area 

thus potentially jeopardizing attainment 

goals. As such, EPA has maintained the 

definition for this category as originally 

proposed.

Comment 3: CCEEB commented that 

‘‘if an air district includes banked ERCs 

as a line item in its portion of the SIP, 

the ERCs are accounted for as emissions 

in the air and are mitigated by measures 

in the plan. To discount such ERCs at 

the time of use would result in a 

‘‘double mitigation.’’ CCEEB requests 

that EPA clarify in the future related 

notices that EPA does not require 

discounting of ERCs at time of use 

where the use of ERCs has been 

mitigated by other specific measures for 

rate of progress or attainment 

demonstration purposes.’’

Response 3: EPA disagrees with 

CCEEB on its comment. CCEEB’s 

approach would essentially allow any 

9564 Federal Register / Vol. 68, No. 40 / Friday, February 28, 2003 / Rules and Regulations 

7 In fact, emission reductions used for NSR offset 

purposes must be included in an area’s inventory 

and attainment plan to be considered for use as an 

offset in the first place. The 1992 ‘‘General 

Preamble for the Implementation of title I of the 

Clean Air Act Amendments of 1990’’ (‘‘General 

Preamble’’) describes the planning requirements of 

the Act as amended in 1990. 57 FR 13498 (April 

16, 1992). The General Preamble addresses the issue 

of the use emission reductions for NSR purposes 

and how areas need to ensure the use of these does 

not conflict with planning. The two types of 

planning actions that need to reflect the use of 

emission reduction credits are rate of progress plans 

and attainment demonstrations. See id. at 13508–

509 and 13552–54; see also 1994 Seitz Memo. Thus, 

inclusion of ERCs in required plans is a 

precondition to satisfying the statutory 

requirements of section 173(c)(2), but does not by 

itself fulfill the statutory requirements. 

CCEEB and WSPA may be taking their argument 

one step further, however, by implying that the 

creation of a growth allowance in an attainment 

plan would enable a permitting authority to issue 

permits that allow new emissions despite the 

source’s reliance on non-surplus ERCs. A growth 

allowance is defined as a ‘‘pollutant-specific 

allowance for additional growth in any designated 

nonattainment area by controlling existing source 

emissions beyond the amount of reduction required 

to demonstrate [reasonable further progress].’’ 57 FR 

13554 (April 16, 1992). CCEEB and WSPA cannot 

rely upon a growth allowance as a justification for 

use of non-surplus ERCs, however, as the 1990 CAA 

amendments restricted the use of new growth 

allowances with the exception of areas that have 

been targeted by the administrator, in consultation 

with the Secretary of Housing and Urban 

Development (‘‘HUD’’), for economic growth. Id.; 

see also CAA sections 172(c)(4) and 173(a)(1)(B). 

Ventura County is not a designated economic 

growth area.

8On February 13, 2003, EPA proposed to find 

that the California SIP was substantially inadequate 

due to Health & Safety Code Section 42310(e), 

which exempts certain agricultural sources from all 

permitting actions, including NSR permitting 

actions. 68 FR 7237. This SIP-call, if finalized, will 

not reactivate the sanctions clock permanently 

stopped by this final action.

emission reduction to be used for NSR 

offset purposes even if it was required 

by a provision of the CAA as long as it 

was incorporated into the area’s 

emissions inventory and accounted for 

in the area’s attainment plan. CCEEB 

justifies this proposition by the fact that 

the ERC ‘‘has been mitigated by other 

specific measures for rate of progress or 

attainment demonstration purposes,’’

and therefore should be allowed as an 

NSR offset. Allowing the use of such an 

ERC as an NSR offset, however, would 

be counter to section 173(c)(2)’s 

prohibition against use of emission 

reductions that are otherwise required 

by the CAA. The mere fact that an ERC 

is recognized in the inventory and 

accounted for in the attainment plan 

and rate of progress in no way 

‘‘mitigates’’ the fact that the reduction 

was elsewhere required under the 

CAA.7

Comment 4: Item number 5 in the list 

of categories of non-surplus emission 

reductions in the proposed approval 

reads ‘‘any emission reduction required 

by a condition of a permit issued to 

comply with NSR CAA requirements.’’

CCEEB commented that ‘‘[t]his item is 

of concern because air permits in 

California will typically include 

requirements that are not required 

under Federal law. Such requirements 

are not required by the federal Clean Air 

Act and should be considered surplus to 

Federal requirements. This item should 

not be listed in its current form as an 

emission reduction that is required by 

the Act.’’ WSPA provided an almost 

identical comment. 

Response 4: We agree with CCEEB 

and WSPA, and modified item number 

5 accordingly. Specifically, in the 

updated interpretation provided in this 

final action and embodied in the MOU, 

we recognize that the following 

requirements contained in a federally 

enforceable NSR permit should not 

automatically disqualify the emission 

reduction from use as an NSR offset: (1) 

Requirements to make the reduction 

federally enforceable to meet Federal 

creditability criteria for use of the 

reduction as an offset for new source 

review purposes, or (2) requirements to 

assure compliance with a state or local 

requirement that is not federally 

enforceable. This change addresses the 

commentors’ concerns. 

III. EPA Action 

No comments were submitted that 

change our assessment that the 

submitted rules comply with the 

relevant CAA requirements. Therefore, 

as authorized in section 110(k)(3) of the 

Act, EPA is approving these rules into 

the California SIP.8

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4).

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, 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 by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This action merely 

approves 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. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (‘‘VCS’’), EPA has no 

authority to disapprove a SIP 

submission for failure to use VCS. It 

would thus be inconsistent with 

applicable law for EPA, when it reviews 

a SIP submission, to use VCS in place 

of a SIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. section 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 

Federal Register / Vol. 68, No. 40 / Friday, February 28, 2003 / Rules and Regulations 9565

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 action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 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 April 29, 2003. 

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, 

Ozone, Reporting and recordkeeping 

requirements.

Dated: February 18, 2003. 

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 paragraph (c)(305) to read as 

follows:

§ 52.220 Identification of plan.

* * * * *

(c) * * * 

(305) Amended regulations for the 

following APCD were submitted on May 

20, 2002 by the Governor’s designee. 

(i) Incorporation by reference. 

(A) Ventura County Air Pollution 

Control District. 

(1) Rules 10, 26.1, 26.2, 26.3, 26.4, 

26.6, and 26.11 adopted on May 14, 

2002.

* * * * *

[FR Doc. 03–4628 Filed 2–27–03; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[ND–001–0007; FRL–7453–4] 

Clean Air Act Approval and 

Promulgation of Air Quality 

Implementation Plan Revision for 

North Dakota; Revisions to the Air 

Pollution Control Rules

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA approves revisions to the 

State Implementation Plan (SIP) 

submitted by the Governor of North 

Dakota with a letter dated June 21, 2001. 

The revisions affect air pollution control 

rules regarding general provisions, 

emissions of particulate matter and 

fugitives, exclusions from Title V permit 

to operate requirements, and prevention 

of significant deterioration. EPA will 

handle separately direct delegation 

requests for emission standards for 

hazardous air pollutants for source 

categories and the State’s Acid Rain 

Program. This action is being taken 

under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is 

effective March 31, 2003.

ADDRESSES: Documents relevant to this 

action are available for public 

inspection during normal business 

hours at the Air and Radiation Program, 

Environmental Protection Agency, 

Region VIII, 999 18th Street, Suite 300, 

Denver, Colorado 80202–2405. Copies of 

the Incorporation by Reference material 

at the Air and Radiation Docket and 

Information Center, U.S. Environmental 

Protection Agency, Room B–108 (Mail 

Code 6102T), 1301 Constitution Ave., 

NW., Washington, DC 20460. Copies of 

the State documents relevant to this 

action are available at the North Dakota 

Department of Health, Division of 

Environmental Engineering, 1200 

Missouri Avenue, Bismarck, North 

Dakota, 58504–5264.

FOR FURTHER INFORMATION CONTACT:

Amy Platt, Environmental Protection 

Agency, Region VIII, (303) 312–6449.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used, we mean 

EPA. 

I. Background 

On October 7, 2002 (67 FR 62432), 

EPA published a notice of proposed 

rulemaking (NPR) for the State of North 

Dakota. The NPR proposed approval of 

revisions to the State Implementation 

Plan (SIP) submitted by the Governor of 

North Dakota with a letter dated June 

21, 2001. The revisions affect air 

pollution control rules regarding general 

provisions, emissions of particulate 

matter and fugitives, exclusions from 

Title V permit to operate requirements, 

and prevention of significant 

deterioration. As indicated in the NPR, 

the submittal also included direct 

delegation requests for emission 

standards for hazardous air pollutants 

for source categories and the State’s 

Acid Rain Program, which we will 

handle separately. 

The revisions being addressed in this 

document involve the following 

chapters of the North Dakota 

Administrative Code (N.D.A.C.): 33–15–

01 General Provisions; 33–15–05 

Emissions of Particulate Matter 

Restricted; 33–15–14 Designated Air 

Contaminant Sources, Permit to 

Construct, Minor Source Permit to 

Operate, Title V Permit to Operate 

(subsection specific to exclusions from 

Title V permit to operate requirements 

only); 33–15–15 Prevention of 

Significant Deterioration; and 33–15–17 

Restriction of Fugitive Emissions. For a 

detailed description of the revisions, 

please refer to our October 7, 2002 NPR 

(62 FR 62432). 

A brief summary of the revisions is as 

follows. In the General Provisions 

chapter, the definition for ‘‘public 

nuisance’’ was removed and changes 

were made to clarify reporting 

requirements when stack testing for air 

contaminant emissions. In the 

Emissions of Particulate Matter 

Restricted chapter, the State 

incorporated reference information from 

the Federal rules. Also, the State 

repealed its requirements for existing 

infectious waste incinerators because 

these requirements are now addressed 

in the State’s plan for the control of 

emissions from existing hospital/

medical/infectious waste incinerators, 

which was approved by EPA in a May 

13, 1999 Federal Register document (64 

FR 25831). In the Restriction of Fugitive 

Emissions chapter, the State deleted a 

reference to nuisances and replaced it 

with a requirement that a source cannot 

cause air pollution as defined in the 

general provisions chapter (the State 

believes that its definition of ‘‘air 

pollution’’ covers nuisances). The above 

changes are consistent with Federal 

requirements and, therefore, are 

approvable. 

In the Designated Air Contaminant 

Sources, Permit to Construct, Minor 

Source Permit to Operate, Title V Permit 

to Operate chapter, a new subsection 

entitled ‘‘Source Exclusions from Title 

V Permit to Operate Requirements’’ was 

added to provide an exemption from the