[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62383-62385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 207-0252; FRL-7380-8]


Revisions to the California State Implementation Plan, Antelope 
Valley Air Pollution Control District and South Coast Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing disapproval of revisions to the Antelope 
Valley and South Coast portions of the California State Implementation 
Plan (SIP). The revisions would provide local agencies broad discretion 
to suspend rules, regulations or orders during state or federally 
declared state of emergencies. EPA proposed disapproval of these 
revisions in the Federal Register on March 31, 2000. We are finalizing 
disapproving under authority of the Clean Air Act as amended in 1990 
(CAA or the Act).

EFFECTIVE DATE: This rule is effective on November 6, 2002.

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 rule revisions at the following 
locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 L Street, Sacramento, CA 95812
Antelope Valley Air Pollution Control District, 315 W. Pondera 
Street, Lancaster, California 93534
South Coast Air Quality Management District, 21865 E. Cooley Drive, 
Diamond Bar, CA 91765

FOR FURTHER INFORMATION CONTACT: Cynthia G. Allen, Rulemaking Office 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105, Telephone (415) 947-4120.

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

I. Proposed Action

    On March 31, 2000 (65 FR 17229), EPA proposed to disapprove the 
following rules that were submitted for inclusion into the California 
SIP.

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         Local agency            Rule No.          Rule title                Adopted              Submitted
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AVAPCD........................        118  Emergencies..............  8/19/97               3/10/98
SCAQMD........................        118  Emergencies..............  12/7/95               5/18/98
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    We proposed to disapprove these rules because we determined that 
they did not comply with the relevant CAA requirements. Our proposed 
action contains more information on the rules 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 one comment regarding SCAQMD Rule 118, 
submitted via fax by Barbara Baird of SCAQMD. A signed version of this 
comment was subsequently submitted dated May 3, 2000, which we are 
treating as the official comment.
    The commenter asserts that EPA must approve Rule 118 because the 
rule will not interfere with attainment of the National Ambient Air 
Quality Standards (NAAQS), reasonable further progress (RFP) towards 
attainment of the NAAQS or any other requirement of the Act. EPA 
disagrees with this assertion as follows.
    1. A state of emergency could potentially last for weeks or even 
months. During this time (and, in theory, in perpetuity under 
118(d)(2)), Rule 118 would allow suspension of any and all requirements 
for air pollution sources regardless of the effects on human health or 
the environment. We do not believe that such a broad grant of immunity 
is in the public interest or is consistent with the CAA. For example, 
the CAA prohibits SCAQMD and EPA from relaxing SIP requirements or 
taking actions that would interfere with attainment, RFP, or any other 
requirements of the Act.\1\ Because Rule 118 is written very broadly, 
it does not ensure compliance with these CAA provisions.
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    \1\ See e.g., 42 U.S.C. 7410(i), (1).
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    2. The impacts of suspending requirements under Rule 118 could last 
far beyond the emergency period. For example, an air pollution source 
could be constructed or modified during a state of emergency without 
the pollution controls or public review that are normally required. 
After the emergency period, such a source could continue to emit air 
pollution at levels that might interfere with attainment, RFP, permit 
requirements in CAA section 173 or other requirements of the Act, and 
even at levels directly harmful to human health and the environment. 
Under Rule 118, however, the source might not be held responsible for 
those consequences because the permitting rules were suspended when it 
was constructed or modified. Because such a rule is inconsistent with 
the CAA and contrary to the public interest, it should not be approved 
into the SIP.
    3. The CAA requires SIPs to contain enforceable emission limits and 
other control measures.\2\ Rule 118 would undermine this requirement by 
allowing SCAQMD broad discretion to suspend enforceable requirements in 
the SIP without consultation or approval from EPA or the public.
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    \2\ See 7410(a)(2)(A).
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    4. The CAA already allows states to suspend SIP requirements during 
certain emergencies, but is more focused than Rule 118 and provides for 
federal oversight.\3\ We believe it provides the flexibility needed 
during an emergency while ensuring adequate protection of public 
health.
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    \3\ See 7410(f) and (g).
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    The commenter also states that some emergency situations could 
justify violation of SIP rules. If such situations

[[Page 62384]]

occur, EPA believes that enforcement discretion, which can consider 
various factors such as applicable CAA requirements and impacts on 
human health and the environment, is a more appropriate mechanism for 
addressing them than the broad discretion to grant immunity under Rule 
118.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted rules do not comply with relevant CAA requirements. 
Therefore, as authorized in section 110(k)(3) of the Act, EPA is 
disapproving these rules for inclusion into the California SIP. The 
effect of this action is that the federally enforceable California SIP 
remains unchanged. The current SIP does not contain any version of 
AVAPCD and SCAQMD Rule 118, Emergencies.

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, entitled 
``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 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 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. E.O. 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 E.O. 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 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 E.O. 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 
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 final 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.

E. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

F. 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 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).

G. 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

[[Page 62385]]

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 costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This 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.

H. 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 action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. Submission to Congress and the Comptroller General

    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 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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

J. Petitions for Judicial Review

    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 December 6, 2002. 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).)

Lists of Subjects in 40 CFR Part 52

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

    Dated: August 29, 2002.
Laura Yoshi,
Deputy 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 52.242 is amended by adding paragraphs (a)(1)(ii) and 
(a)(2) to read as follows:


Sec.  52.242  Disapproved rules and regulations.

    (a) * * *
    (1) * * *
    (ii) Rule 118, Emergencies, submitted on May 21, 1998.
    (2) Antelope Valley Air Pollution Control District.
    (i) Rule 118, Emergencies, submitted on March 10, 1998.
* * * * *
[FR Doc. 02-25282 Filed 10-4-02; 8:45 am]
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