[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Proposed Rules]
[Pages 33930-33933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16004]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA242-0240; FRL-7002-9]


Revisions to the California State Implementation Plan, Imperial 
County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a disapproval of revisions to the Imperial 
County Air Pollution Control District's (ICAPCD) portion of the 
California State Implementation Plan (SIP). These revisions concern 
visible emissions (VE) from many different sources of air pollution. We 
are proposing action on Rule 401--Opacity of Emissions, a local rule 
regulating different emission sources under the Clean Air Act as 
amended in 1990 (CAA or the Act). We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by July 26, 2001.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.
    You can inspect copies of the submitted SIP revisions and EPA's 
technical support documents (TSDs) at our Region IX office during 
normal business hours. You may also see copies of the submitted SIP 
revisions at the following locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.

[[Page 33931]]

Imperial County Air Pollution Control District, 150 South 9th Street, 
El Centro, CA 92243

FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office 
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-
1226.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

    I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule revision?
II. EPA's Evaluation and Action.
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule's deficiencies?
    D. EPA recommendations to further improve the rule.
    E. Proposed action and public comment.
III. Background Information.
    Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the ICAPCD and submitted by the California Air 
Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
           Local agency                 Rule No.             Rule title             Adopted         Submitted
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ICAPCD............................             401   Opacity of Emissions.....        09/14/99         05/26/00
----------------------------------------------------------------------------------------------------------------

    On October 6, 2000, EPA found this rule submittal met the 
completeness criteria in 40 CFR part 51, appendix V. These criteria 
must be met before formal EPA review may begin.

B. Are There Other Versions of the Rule?

    The SIP contains two rules with requirements and provisions similar 
to submitted Rule 401: Rule 401--Opacity of Emissions and Rule 402--
Exemptions. EPA incorporated these rules within the SIP on February 3, 
1989. We are acting on the latest and only state submittal of Rule 401.

C. What is the Purpose of the Submitted Rule Revision?

    This rule limits the emissions of visible air contaminants of any 
type; usually, but not always particulate matter from combustion 
sources and industrial sites. Specifically, Rule 401 prohibits 
emissions beyond a defined opacity standard. ICAPCD's September 14, 
1999 amendments consolidate SIP Rules 401 and 402 within a single rule 
format. Revised Rule 401 includes by reference exemptions taken from 
the California Health and Safety Code at sections 41701.5, 41704, 
41800, and 42350. The TSD has more detailed information about these 
amendments.

II. EPA's Evaluation and Action

A. How is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must meet Reasonably Available Control Measure (RACM) 
requirements for nonattainment areas (see section 189), and must not 
relax existing requirements (see sections 110(l) and 193). The ICAPCD 
regulates an PM nonattainment area (see 40 CFR part 81), so Rule 401 
must fulfill RACM.
    Guidance and policy documents that we used to define specific 
enforceability requirements include the following:
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations; Clarification to Appendix D of November 24, 1987 Federal 
Register document,'' (Blue Book), notice of availability published in 
the May 25, 1988 Federal Register.

B. Does the Rule Meet the Evaluation Criteria?

    This rule is partially consistent with the relevant policy and 
guidance regarding enforceability and RACM. Also, a single rule format 
provides for a clearer presentation of VE requirements. However, there 
are rule provisions which do not meet the evaluation criteria. These 
provisions are summarized below and discussed further in the TSD.

C. What Are the Rule's Deficiencies?

    Certain provisions of Rule 401 conflict with section 110 and part D 
of the Act and prevent full approval of the SIP revision. First, given 
the section 189 RACM requirement, Rule 401 should not grandfather 
existing sources as it does at section B.3. Secondly, California has 
not submitted the sections of the Health and Safety Code (HSC) cited in 
section C for SIP inclusion. Consequently, EPA can neither review, nor 
act on these incorporations by reference. While one remedy would be to 
include desired exemptions within the rule, they would again be subject 
to EPA review and approval. Finally, section 42350 of the HSC allows 
for variances to a district's opacity limits. We object to these 
variance provisions because they provide broad discretion to modify the 
SIP in violation of CAA sections 110(i), 110(l), and 193.

D. EPA Recommendations to Further Improve the Rule

    We have no recommended rule revisions that do not affect EPA's 
current action; these revisions would be recommended for the next time 
the local agency modifies the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(l) and 301(a) of the Act, EPA is 
proposing a disapproval of Rule 401. If finalized, this action will 
preserve the versions of Rule 401 & 402 approved in 1989 already within 
the federally approved SIP. These rules will remain federally 
enforceable. As a result, this disapproval action does not trigger 
sanctions or Federal Implementation Plan time clocks under section 179 
of the CAA.
    We will accept comments from the public on this proposed 
disapproval for the next 30 days.

III. Background Information

Why Was This Rule Submitted?

    Visible emission rules with their opacity standards are basic 
components of an air quality regulation program and a general RACM 
requirement for PM-10 regulations. Section 110(a) of the CAA requires 
states to submit regulations that control VE emissions. Table 2 lists 
some of the national milestones leading to the submittal of this local 
agency VE rule.

[[Page 33932]]



                Table 2.--PM-10 Nonattainment Milestones
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             Date                                Event
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November 15, 1990............  Clean Air Act Amendments of 1990 were
                                enacted. Pub. L. 101-549, 104 Stat.
                                2399, codified at 42 U.S.C. 7401-7671q.
December 10, 1993............  Section 189(a)(1)(C) requires that PM-10
                                nonattainment areas implement all
                                reasonably available control measures
                                (RACM) by this date.
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IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13045

    Executive Order 13045, entitled 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 Executive Order 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 Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13132

    Executive Order 13132, entitled 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, 
because it merely acts on 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
proposed rule.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule. In the spirit 
of Executive Order 13175, and consistent with EPA policy to promote 
communications between EPA and tribal governments, EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

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.
    EPA's proposed disapproval of the state request under section 110 
and subchapter I, part D of the Clean Air Act does not affect any 
existing requirements applicable to small entities. Any pre-existing 
federal requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100

[[Page 33933]]

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 proposed action 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 proposed Federal action acts on 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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compound.

    Authority: 42 U.S.C. 7401, et seq.

    Dated: June 8, 2001.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 01-16004 Filed 6-25-01; 8:45 am]
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