[Federal Register Volume 63, Number 162 (Friday, August 21, 1998)]
[Proposed Rules]
[Pages 44820-44822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22531]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 184-0094; FRL-6149-4]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision; South Coast Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a disapproval of revisions to the California 
State Implementation Plan (SIP). These revisions concern the potential 
exemption of sources from applicable emission limits contained in 
permits and in source category specific rules when excess emissions 
occur due to an unavoidable malfunction. EPA has evaluated these 
revisions and is proposing to disapprove them because they contain 
deficiencies that, if approved, would weaken the SIP.

DATES: Comments on this proposed action must be received in writing on 
or before September 21, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105-3901.
    Copies of the rule and EPA's evaluation report of the rule are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rule are also available for 
inspection at the following locations:
    Environmental Protection Agency, Air Docket (6102), 401 M Street, 
SW., Washington, DC 20460.
    California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 L Street, Sacramento, CA 95812.
    South Coast Air Quality Management District, 21865 E. Copley Drive, 
Diamond Bar, CA 91765.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rule being proposed for disapproval is South Coast Air Quality 
Management District (SCAQMD) Rule 430--Breakdown Provisions. Rule 430

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was submitted to EPA by the SCAQMD on October 18, 1996.

II. Background

    This document addresses EPA's proposed action for South Coast Air 
Quality Management District (SCAQMD) Rule 430--Breakdown Provisions. 
SCAQMD adopted Rule 430 on July 12, 1996, and submitted it to EPA on 
October 18, 1996. Rule 430 was found to be complete on April 23, 1997, 
pursuant to EPA's completeness criteria that are set forth in 40 CFR 
part 51, appendix V.1
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    \1\ 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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III. EPA Evaluation and Proposed Action

    In determining the approvability of a 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). EPA's interpretation of these requirements, 
which forms the basis for this action, appears in EPA policy guidance 
documents. EPA policy on excess emissions resulting from unavoidable 
malfunctions is contained in a memorandum dated February 15, 1983, 
entitled ``Policy on Excess Emissions During Startup, Shutdown, 
Maintenance, and Malfunctions'' (the Bennett Memo). In general, the 
guidance document cited above, as well as other relevant and applicable 
guidance documents, have been set forth to ensure that submitted rules 
meet Federal requirements, are fully enforceable, and strengthen or 
maintain the SIP.
    There is currently no version of South Coast Air Quality Management 
District (SCAQMD) Rule 430--Breakdown Provisions in the SIP. The 
submitted rule includes the following provisions:
     General provisions establishing the applicability of the 
rule and providing for certain exceptions.
     Requirements for facilities seeking relief under Rule 430. 
Facilities shall report breakdowns within one hour, shall shut down 
malfunctioning equipment within twenty-four hours of a breakdown, and 
shall submit a detailed Breakdown Emissions Report within thirty days.
     Provisions authorizing the SCAQMD Executive Officer to 
investigate reported breakdowns and to determine whether relief under 
Rule 430 shall be granted.
     Provisions allowing a source the option of operating 
malfunctioning equipment past the twenty-four hour time limit provided 
a petition for an emergency variance has been filed.
    SCAQMD Rule 430 requires the source to demonstrate to the 
satisfaction of the SCAQMD Executive Officer that a malfunction did not 
result from improper operation or maintenance procedures in order to 
obtain relief from enforcement. Rule 430 provides that if these 
criteria are met, then no violation of the rule or permit condition 
containing the applicable emission limit will have occurred. The 
Bennett memo explains that it is EPA policy to approve SIP revisions 
concerning excess emissions due to malfunction which contain an 
``enforcement discretion approach.'' Under this approach, even if the 
source demonstrates that the excess emissions are due to an unavoidable 
malfunction, these emissions still constitute a violation of the 
applicable requirement. This distinction is significant because the 
occurrence of a violation gives rise to EPA enforcement prerogatives in 
addition to the power to impose penalties, namely the power to seek an 
injunction against the source. It is EPA policy that even if a 
malfunction is determined by EPA to have been unavoidable according to 
the criteria set forth in the Bennett memo, EPA may still seek to 
enjoin the facility from further operation if such an injunction is 
necessary in order to preserve the National Ambient Air Quality 
Standards (NAAQS), Prevention of Significant Deterioration (PSD) 
increments, or other air quality related values. A further deficiency 
of SCAQMD Rule 430 is that it provides complete discretion to the 
Executive Officer to determine whether penalties shall be imposed in 
response to excess emissions due to a malfunction. It is EPA policy 
that the Agency cannot be bound by the decision of the District from 
seeking penalties for a violation of the SIP.
    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. As described 
above, SCAQMD Rule 430 contains deficiencies related to the 
preservation of EPA's injunctive prerogative, as well as to the rule's 
binding of EPA to the Executive Officer's discretion with respect to 
the imposition of penalties. SCAQMD Rule 430, if approved, would create 
a potential exemption of sources from applicable emissions limits 
contained in the SIP. While EPA policy allows for the creation of such 
potential exemptions, the deficiencies identified in Rule 430 undermine 
the prerogatives retained by EPA for protecting the NAAQS, PSD 
increments, and other air quality related values in those instances 
where exemptions are allowed. Thus the submitted Rule 430 would, if 
approved, weaken the SIP. A more detailed discussion of EPA's 
evaluation of SCAQMD Rule 430 can be found in the Technical Support 
Document, dated July 30, 1998, prepared by EPA for the rule.
    Because of the identified deficiencies, EPA cannot grant approval 
of SCAQMD Rule 430 under section 110(k)(3) and part D. Therefore, in 
order to maintain the SIP, EPA is proposing a disapproval of this rule 
because it contains deficiencies which must be corrected in order to 
fully meet the requirements of sections 182(a)(2), 182(b)(2), 182(f), 
and part D of the CAA. Under section 179(a)(2), if the Administrator 
disapproves a submission under section 110(k) for an area designated 
nonattainment, based on the submission's failure to meet one or more of 
the elements required by the Act, the Administrator must apply one of 
the sanctions set forth in section 179(b) unless the deficiency has 
been corrected within 18 months of such disapproval. Section 179(b) 
provides two sanctions available to the Administrator: Highway funding 
and offsets. The 18 month period referred to in section 179(a) will 
begin on the effective date of EPA's final disapproval. Moreover, the 
final disapproval triggers the Federal Implementation Plan (FIP) 
requirement under section 110(c).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State implementation plan. Each request for revision to 
the State implementation plan shall be considered separately in light 
of specific technical, economic and environmental factors and in 
relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The proposed rules are not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because they are not ``economically significant'' actions 
under E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare

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a regulatory flexibility analysis assessing the impact of any proposed 
or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, 
EPA may certify that the rule will not have a significant impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and government entities 
with jurisdiction over populations of less than 50,000.
    SIP approvals under sections 110 and 301, and subchapter I, part D 
of the CAA do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, preparation of a flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its action 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).

C. 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 proposed 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 approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 13, 1998.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 98-22531 Filed 8-20-98; 8:45 am]
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