[Federal Register Volume 64, Number 226 (Wednesday, November 24, 1999)]
[Proposed Rules]
[Pages 66143-66146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30613]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 022-0196; FRL-6480-7]


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

[[Page 66144]]

California State Implementation Plan (SIP). These revisions concern the 
potential exemption of sources from applicable emission limits 
contained in certain source category specific rules when excess 
emissions occur during facility start-up and shutdown. 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 December 9, 1999.

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 (the 
Technical Support Document, or TSD, dated November 9, 1999) 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, 
S.W., Washington, D.C. 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 429--Startup and Shutdown Exemption 
Provisions for Oxides of Nitrogen. Rule 429 was submitted to EPA by the 
SCAQMD on January 28, 1992.

II. Background

    This document addresses EPA's proposed action for South Coast Air 
Quality Management District (SCAQMD) Rule 429--Startup and Shutdown 
Exemption Provisions for Oxides of Nitrogen. SCAQMD adopted Rule 429 on 
December 21, 1990, and submitted it to EPA on January 28, 1992. Rule 
429 was found to be complete on April 3, 1992, 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 Clean Air Act (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 occurring during start-up and 
shutdown is contained in a memorandum dated September 20, 1999, 
entitled ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Start-up, and Shutdown'' (the Excess 
Emissions Policy). 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 429--Startup and Shutdown Exemption Provisions 
for Oxides of Nitrogen in the SIP. The submitted rule includes the 
following provisions:
     Definitions of various terms used in the rule.
     General provisions establishing the applicability of the 
rule and requiring that facilities seeking relief under Rule 429 
mitigate emissions to the extent practicable.
     Time limits on start-up and shutdown intervals and a 
maximum number of scheduled start-ups/shutdowns per year for each 
affected source category.
     Provisions describing the notification and recordkeeping 
requirements for facilities seeking relief under Rule 429.
    SCAQMD Rule 429 requires that facilities seeking exemption for 
excess emissions give prior notification of scheduled start-ups and 
shutdowns. Exemptions are allowed only for excess emissions that occur 
during scheduled start-ups and shutdowns for which notification is 
given. Rule 429 also requires that records of certain process variables 
be maintained and kept on-site for a period of two years.
    Under Section 110(l) of the CAA, EPA may not approve a SIP revision 
``if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of [the Act].'' This provision serves to ensure 
that the State, in seeking a revision to its SIP, does not impair its 
compliance with the statutory mandates applicable to the SIP. One such 
requirement is Section 172(c)(1), which mandates that SIP provisions 
implement reasonably available control technology (RACT).
    In order to clarify which excess emissions provisions are 
approvable as SIP revisions under the CAA, and to provide guidance to 
States and local air districts, the Agency recently reissued its 
policy. The Excess Emissions Policy states that EPA may approve SIP 
revisions providing source-category specific exemptions for excess 
emissions that occur during start-up and shutdown periods only if the 
source's control strategy is such that compliance with otherwise 
applicable emission limits is technologically infeasible during these 
periods. The policy also requires that the frequency and duration of 
the excess emissions be minimized to the maximum extent practicable. 
These requirements are based on Sections 110(l) and 172(c)(1) and are 
meant to ensure that the excess emissions provisions do not interfere 
with attainment, maintenance, or other applicable requirements.
    The SCAQMD Staff Report (dated October 30, 1990) that provides the 
technical basis for Rule 429 fails to establish the technological 
necessity of the exemptions and, further, does not demonstrate that the 
exemption periods have been minimized. The source category specific 
rules from which Rule 429 provides exemption implement RACT for sources 
in those source categories. Therefore, exemption from those rules is 
allowable under Section 172(c)(1) only when the otherwise reasonably 
available control technologies are not reasonably available during 
start-up and shutdown. Further, in keeping with Section 110(l) of the 
CAA, EPA may approve into the SIP exemptions such as those provided 
under Rule 429 only if they do not interfere with attainment or 
maintenance. If Rule 429 excused only those excess emissions that are 
technologically unavoidable, then the Rule would be less likely to 
interfere with attainment. However, Rule 429 fails to include such a 
limitation.

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    An additional deficiency of Rule 429 is that it contains vague or 
contradictory language that makes it unclear when otherwise applicable 
emission limits would apply to a given source. These instances include 
sections (a)(5) and (b)(3) of the rule and are detailed in the TSD. 
Section 110(a)(2)(A) of the CAA requires that the emissions limitations 
included in SIPs be enforceable. Thus, Rule 429 violates Section 
110(a)(2)(A) of the CAA and is not an approvable SIP revision.
    In conclusion, 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 429 is deficient because it does not 
maintain or strengthen the SIP, and because its vague or contradictory 
language renders it unenforceable. SCAQMD Rule 429, if approved, would 
exempt certain sources from applicable emissions limits contained in 
the SIP. The CAA and EPA policy, under certain circumstances, allow for 
such exemptions. However, the exemptions provided by Rule 429 are not 
sufficiently limited and could result in exempted emissions that might 
threaten the NAAQS, PSD increments, or other air quality standards. 
Thus the submitted Rule 429 would, if approved, weaken the SIP. A more 
detailed discussion of EPA's evaluation of SCAQMD Rule 429 can be found 
in the TSD.
    Because of the identified deficiencies, EPA cannot grant approval 
of SCAQMD Rule 429 under section 110(k)(3) and part D. Therefore, in 
order to maintain the SIP, EPA is proposing a disapproval of this rule.
    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 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 13132

    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 proposed 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. 
Thus, the requirements of section 6 of the Executive Order 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 is 
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

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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.

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: November 12, 1999.
Laura Yoshii,
Deputy Regional Administrator, Region IX.
[FR Doc. 99-30613 Filed 11-23-99; 8:45 am]
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