[Federal Register Volume 67, Number 224 (Wednesday, November 20, 2002)]
[Proposed Rules]
[Pages 70032-70036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29477]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 242-0328; FRL-7410-8]


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 limited approval and limited disapproval to 
a revision to the Imperial County Air Pollution Control District 
(ICAPCD) portion of the California State Implementation Plan (SIP) 
concerning particulate matter (PM-10) emissions from emission units, 
electrical generation units, and fuel burning equipment. We are also 
proposing to approve a revision to the ICAPCD portion of the California 
SIP concerning oxides of nitrogen (NOX) emissions from fuel 
burning equipment. We are proposing action on local rules that regulate 
these 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 December 20, 2002.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection

[[Page 70033]]

Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
    You can inspect copies of the submitted rule 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 rule 
revisions at the following locations:

Air and Radiation Docket and Information Center (6102T), U.S. 
Environmental Protection Agency, Room B-102, 1301 Constitution 
Avenue, NW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Imperial County Air Pollution Control District, 150 South 9th 
Street, El Centro, CA 92243.

    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA website and may not contain the same version of the rule that 
was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What are the changes in the submitted rules?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. Proposed action and public comment
III. Background Information
    A. Why were these rules submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by local air agencies and submitted by the 
California Air Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
              Local agency                Rule No.              Rule title                Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD.................................        403  General Limitations on the             07/24/01     10/30/01
                                                     Discharge of Air Contaminants.
ICAPCD.................................        400  Fuel Burning Equipment--Oxides of      09/14/99     05/26/00
                                                     Nitrogen.
----------------------------------------------------------------------------------------------------------------

    On January 18, 2002 and October 6, 2000, respectively, these rule 
submittals were found to meet the completeness criteria in 40 CFR part 
51 Appendix V, which must be met before formal EPA review.

B. Are There Other Versions of These Rules?

    We approved versions of Rule 403 into the SIP on May 31, 1972 (37 
FR 10842) as Rule 131, on February 3, 1989 (54 FR 5448) as Rule 403, 
and on January 27, 1981 (46 FR 8471) as Rules 404 and 406. We approved 
a version of Rule 400 into the SIP on May 31, 1972 (37 FR 10842) as 
Rule 131.

C. What Are the Changes in the Submitted Rules?

    The significant changes to SIP Rule 131 are as follows:

    [sbull] The limitation to not emit more than 200 pounds per hour of 
sulfur dioxide was moved to submitted Rule 405.B.4.a.2, which was 
approved by EPA on February 7, 2002 (67 FR 5727).
    [sbull] The limitation to not emit more than 10 pounds per hour of 
combustion contaminants from fuel burning equipment was moved to 
submitted Rule 403.B.5.

    [sbull] The limitation to not emit more than 140 pounds per hour of 
nitrogen oxides (NO2) was moved to submitted Rule 400.B.
    SIP Rule 404 would be superseded by submitted Rule 403.B.1. SIP 
Rule 406 would be superseded by submitted Rule 403.B.3.
    Additional changes in submitted Rule 403 relative to all of the SIP 
rules are as follows:

    [sbull] 403.B.1: The limitation on the mass discharge of 
particulate matter from emission units was made more stringent.
    [sbull] 403.B.2: A limitation on the discharge concentration of air 
contaminants from emission units was added.
    [sbull] 403.B.4: A very stringent limitation on the discharge 
concentration of combustion contaminants from electrical utility 
generating units was added.
    [sbull] 403.C: Compliance test methods were added.
    An additional change in submitted Rule 400 relative to SIP Rule 131 
is as follows:
    [sbull] 400.C: Compliance test methods, monitoring requirements, 
and a records retention period were added.
    The TSDs have more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, PM-10 SIP rules must be enforceable (see section 110(a) 
of the Act) and must not relax existing requirements (see sections 
110(l) and 193).Sections 172(c)(1) and 189(a) of the CAA require 
moderate PM-10 nonattainment areas with significant PM-10 sources to 
adopt reasonably available control measures (RACM), including 
reasonably available control technology (RACT). RACM/RACT is not 
required for source categories that are not significant (de minimis) 
and do not have major sources. See Addendum to the General Preamble for 
the Implementation of Title I of the Clean Air Act Amendments of 1990, 
59 FR 41998 (August 16, 1994). Based on the latest emissions inventory 
data contained in Imperial County PM-10 State Implementation Plan 
Attainment Demonstration, Draft Report (July 2001), Imperial County has 
at least three major PM sources: Santa Fe Pacific Gold Corp (541 tpy), 
U.S. Gypsum (Plaster City) (156 tpy), and American Girl Mine (136 tpy). 
Therefore, we conclude that submitted rule 403 must meet RACT in the 
absence of a demonstration by the State that these major sources do not 
contribute significantly to PM-10 levels which exceed the PM-10 NAAQS 
in the area. We also note that ICAPCD's Draft Report, which formed a 
basis for our 2001 attainment finding, refers to Rule 403 as one of the 
controls that should be considered RACT for stationary sources in 
Imperial County (see pages 37-38 of that report).
    Generally, NOX SIP rules must be enforceable (see 
section 110(a) of the Act), must require Reasonably Available Control 
Technology (RACT) for major sources in ozone nonattainment areas (see 
sections 182(a)(2)(A) and 182(f)), and must not relax existing 
requirements (see sections 110(l) and 193). However, the ICAPCD 
regulates a section 185A transitional ozone nonattainment area (see 40 
CFR 81.305). Section 185A of the Act exempts transitional areas from 
all subpart 2

[[Page 70034]]

requirements until December 31, 1991, and that exemption continues 
until EPA redesignates the area as attainment or designates the area as 
nonattainment under section 107(d)(4). See 57 FR 13498, at 13525 (April 
16, 1992). Submitted Rule 400 improves upon the SIP by adding test 
methods, monitoring requirements, and a record retention period, all of 
which improve the practical enforceability of the NOX 
emissions limits contained in the rule.
    Guidance and policy documents that we used to define specific 
enforceability and RACM/RACT requirements include the following:
    [sbull] Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans, U.S. EPA, 40 CFR part 51.
    [sbull] General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
    [sbull] Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August 
16, 1994).
    [sbull] PM-10 Guideline Document (EPA-452/R-93-008).
    [sbull] Imperial County PM-10 State Implementation Plan Attainment 
Demonstration, Draft Report (July 2001).
    [sbull] State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown, Steven A. Herman, 
memorandum (September 20, 1999).
    [sbull] Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations; Clarification to Appendix D of November 24, 1987 
Federal Register Notice, (Blue Book), notice of availability published 
in the May 25, 1988 Federal Register.
    [sbull] State Implementation Plans; Nitrogen Oxides Supplement to 
the General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990 (the ``NOX Supplement to the General 
Preamble''), U.S. EPA, 57 FR 55620 (November 25, 1992).

B. Do the Rules Meet the Evaluation Criteria?

    Rule 403 improves the SIP by establishing more stringent PM-10 
emission limits and by adding test methods. This rule is largely 
consistent with the relevant policy and guidance regarding 
enforceability, RACT and SIP relaxations. Rule provisions which do not 
meet the evaluation criteria are summarized below and discussed further 
in the TSD.
    Rule 400 improves the SIP by adding test methods, monitoring 
requirements, and a record retention period, all of which improve the 
practical enforceability of the NOX emissions limits 
contained in the rule. This rule is consistent with the relevent policy 
regarding enforceability, RACT, and SIP relaxations. These issues are 
discussed further in the TSD.

C. What Are the Rule Deficiencies?

    The following are deficiencies that preclude full approval:
    [sbull] Rule 403 should have monitoring and recordkeeping 
requirements in order to assure compliance with PM emission standards.
    [sbull] Rule 403 should have some limitation on the period or 
conditions allowed for the exemption from PM emission standards during 
start-up and load changes.

D. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of submitted ICAPCD Rule 403 to improve 
the SIP. If finalized, this action would incorporate the submitted rule 
into the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will be imposed under section 179 of the Act 
unless EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months. These sanctions would be imposed 
according to 40 CFR 52.31. A final disapproval would also trigger the 
federal implementation plan (FIP) requirement under section 110(c). 
Note that the submitted rule has been adopted by the ICAPCD, and EPA's 
final limited disapproval would not prevent the local agency from 
enforcing it.
    We are proposing full approval of submitted ICAPCD Rule 400 because 
we believe it fulfills all relevant requirements. We will accept 
comments from the public on the proposed limited approval/limited 
disapproval of ICAPCD Rule 403 and proposed full approval of ICAPCD 
Rule 400 for the next 30 days.

III. Background Information

A. Why Were These Rules Submitted?

    PM-10 harms human health and the environment. Section 110(a) of the 
CAA requires states to submit regulations that control PM-10 emissions. 
Table 2 lists some of the national milestones leading to the submittal 
of local agency PM-10 rules.

                Table 2.--PM-10 Nonattainment Milestones
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                  Date                                Event
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March 3, 1978..........................  EPA promulgated a list of total
                                          suspended particulate (TSP)
                                          nonattainment areas under the
                                          Clean Air Act, as amended in
                                          1977. 43 FR 8962; 40 CFR
                                          81.305.
July 1, 1987...........................  EPA replaced the TSP standards
                                          with new PM standards applying
                                          only up to 10 microns in
                                          diameter (PM-10). 52 FR 24672.
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.
November 15, 1990......................  PM-10 areas meeting the
                                          qualifications of section
                                          107(d)(4)(B) of the CAA were
                                          designated nonattainment by
                                          operation of law and
                                          classified as moderate
                                          pursuant to section 188(a).
                                          States are required by section
                                          110(a) to submit rules
                                          regulating PM-10 emissions in
                                          order to achieve the
                                          attainment dates specified in
                                          section 188(c).
------------------------------------------------------------------------

    NOX helps produce ground-level nitrogen dioxide, ozone, 
smog, and particulate matter which harm human health and the 
environment. Section 110(a) of the CAA requires states to submit 
regulations that control NOX emissions. Table 3 lists some 
of the national milestones leading to the submittal of these local 
agency NOX rules.

                Table 3.--Ozone Nonattainment Milestones
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                  Date                                Event
------------------------------------------------------------------------
March 3, 1978..........................  EPA promulgated a list of ozone
                                          nonattainment areas under the
                                          Clean Air Act as amended in
                                          1977. 43 FR 8962; 40 CFR
                                          81.305.
May 26, 1988...........................  EPA notified Governors that
                                          parts of their SIPs were
                                          inadequate to attain and
                                          maintain the ozone standard
                                          and requested that they
                                          correct the deficiencies
                                          (EPA's SIP- Call). See section
                                          110(a)(2)(H) of the pre-
                                          amended Act.
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.

[[Page 70035]]

 
May 15, 1991...........................  Section 182(a)(2)(A) requires
                                          that ozone nonattainment areas
                                          correct deficient RACT rules
                                          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 13211

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

C. 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.

D. 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.

E. 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.

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.
    This proposed 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 act on 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.
    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).

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

[[Page 70036]]

may result in estimated costs to State, local, or tribal governments in 
the aggregate; or to the 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 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.

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 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, Intergovernmental 
relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

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

    Dated: October 29, 2002.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 02-29477 Filed 11-19-02; 8:45 am]
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