[Federal Register Volume 68, Number 109 (Friday, June 6, 2003)]
[Proposed Rules]
[Pages 33899-33902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14320]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 140-0396; FRL-7509-4]


Disapproval of State Implementation Plan Revisions, Antelope 
Valley Air Quality Management District, Butte County Air Quality 
Management District, Kern County Air Pollution Control District, Mojave 
Desert Air Quality Management District, and Shasta County Air Quality 
Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove revisions to the Antelope 
Valley Air Quality Management District (AVAQMD), Butte County Air 
Quality Management District (BCAQMD), Kern County Air Pollution Control 
District (KCAPCD), Mojave Desert Air Quality Management District 
(MDAQMD), and Shasta County Air Quality Management District (SHAQMD) 
portions of the California State Implementation Plan (SIP) concerning 
excess emissions. We are proposing action on local rules that regulate 
these emissions 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 7, 2003.

ADDRESSES: Mail comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105 or e-mail to 
[email protected].
    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:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Antelope Valley AQMD, 43301 Division St., Ste. 206, Lancaster, CA 
93535-4649.
Butte County AQMD, 2525 Dominic Drive, Suite J, Chico, CA 95928-7184.
Kern County APCD, 2700 ``M'' Street, Suite 302, Bakersfield, CA 93301-
2370.
Mojave Desert AQMD, 14306 Park Avenue, Victorville, CA 92392-2310.
Shasta County AQMD, 1855 Placer Street, Ste. 101, Redding, CA 96001-
1759.

    Copies of the rules 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 Web site and may not contain the same version of the rule 
that was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, EPA Region IX, 
(415) 947-4121.

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 is the purpose of 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. Proposed action and public comment
III. Administrative Requirements

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules proposed for disapproval with the date that 
they were adopted and submitted by the California Air Resources Board 
(CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
              Local agency                  Rule No.              Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
AVAQMD..................................          430  Breakdown Provisions...........     03/17/98     02/16/99
BCAQMD..................................          275  Reporting Procedures for Excess     02/15/96     05/10/96
                                                        Emissions.
KCAPCD..................................          111  Equipment Breakdown............     05/02/96     07/23/96
MDAQMD..................................          430  Breakdown Provisions...........     12/21/94     01/24/95
SHAQMD..................................         3:10  Excess Emissions...............     12/05/95     05/10/96
----------------------------------------------------------------------------------------------------------------

    On April 23, 1999, we determined that the AVAQMD Rule 430 submittal 
met the completeness criteria in 40 CFR part 51 Appendix V, which must 
be met before formal EPA review. On July 19, 1996, we determined that 
the BCAQMD Rule 275 submittal and the SHAQMD Rule 3:10 submittal met 
the completeness criteria. On October 30, 1996, we determined that the 
KCAPCD Rule 111 submittal met the completeness criteria and on February

[[Page 33900]]

24, 1995, we determined that the MDAQMD Rule 430 submittal met the 
completeness criteria.

B. Are There Other Versions of These Rules?

    There are no previous versions of AVAQMD Rule 430, BCAQMD Rule 275, 
MDAQMD Rule 430 or SHAQMD Rule 3:10 in the SIP. We approved a version 
of KCAPCD Rule 111 into the SIP on October 24, 1980. The Kern County 
Air Pollution Control District adopted a revision to the SIP-approved 
version on May 2, 1996, and CARB submitted it to us on July 23, 1996.

C. What Is the Purpose of the Submitted Rules?

    AVAQMD Rule 430, KCAPCD Rule 111, and MDAQMD Rule 430 establish 
that the Air Pollution Control Officer (APCO) may, in his discretion, 
refrain from enforcement action against an owner or operator of any 
equipment which has violated a technology-based emission limitation 
provided that a breakdown has occurred and certain other conditions are 
met. BCAQMD Rule 275 and SHAQMD Rule 3:10 establish that an emergency 
constitutes an affirmative defense to any action brought for non-
compliance with technology-based emission limits. SHAQMD Rule 3:10 also 
provides that excess emissions during start-up and shutdown shall not 
be considered a violation if the owner or operator can demonstrate that 
the excess emissions are unavoidable. Finally, SHAQMD Rule 3:10 states 
that the APCO may provide an exemption for excess emissions during 
start-up and shutdown in the permit for a particular source. The TSDs 
have more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
major sources in nonattainment areas (see section 182(a)(2)(A)), and 
must not relax existing requirements (see sections 110(l) and 193).
    Guidance and policy documents that we used to help evaluate 
specific enforceability and RACT requirements consistently include the 
following:
    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    3. ``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup and Shutdown,'' EPA Office of Air and 
Radiation, and EPA Office of Enforcement and Compliance Assurance, 
September 20, 1999 (``Excess Emissions Policy'').
    4. ``Guidelines for Including State and Local Rules in SIPs,'' EPA 
Region IX, December 17, 1998. These guidelines were transmitted to the 
California Air Resources Board in a letter dated December 23, 1998 from 
David P. Howekamp, Director, Air Division, EPA Region IX, to Michael 
Kenny, Executive Officer, California Air Resources Board.

B. Do the Rules Meet the Evaluation Criteria?

    The submitted SIP revisions conflict with section 110 and part D of 
the Act for the following reasons:
    1. AVAQMD Rule 430, KCAPCD Rule 111, and MDAQMD Rule 430 describe 
how the districts intend to apply their enforcement discretion in 
instances where facilities exceed emissions limits due to breakdown. As 
stated in EPA's Excess Emissions Policy, a state or EPA may exercise 
its enforcement discretion to refrain from taking an enforcement action 
where excess emissions result from sudden and unavoidable malfunctions 
caused by circumstances entirely beyond the control of the owner or 
operator. However, the September 20, 1999 policy also makes clear that 
EPA will not approve SIP revisions that allow a state director's 
decision to bar EPA's or citizens' ability to take enforcement action. 
Accordingly, were EPA to approve enforcement discretion rules such as 
these, we would do so only while making clear that such action had no 
effect on EPA's or citizens' enforcement prerogatives. Under these 
circumstances, such a SIP revision would have no effect on the SIP. For 
this reason EPA considers it unproductive and potentially confusing to 
approve these enforcement discretion rules into the SIP.
    2. As stated in the Excess Emissions Policy, EPA interprets the Act 
to require that all periods of excess emissions are violations of the 
applicable emissions limitation. A SIP revision may provide an 
affirmative defense for excess emissions so long as a State director's 
decision not to take an enforcement action does not bar EPA's or 
citizens' ability to take enforcement action. Further, acceptable 
affirmative defense provisions may only apply to actions for penalties, 
but not to actions for injunctive relief. BCAQMD Rule 275 and SHAQMD 
Rule 3:10 do not limit the applicability of the affirmative defense for 
excess emissions during an emergency to actions for penalties, but 
rather apply the defense to any action brought for non-compliance with 
technology-based emissions limits. BCAQMD Rule 275 and SHAQMD Rule 3:10 
also fail to make clear that the excess emissions are violations of the 
applicable emissions limitation and that a determination by the APCO 
not to take an enforcement action (or a finding by the APCO that an 
emergency exists) would not bar EPA or citizen action.
    These and other rule provisions which do not meet the evaluation 
criteria are discussed further in the TSDs.

C. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) of the Act, we are proposing a 
disapproval of the submitted AVAQMD Rule 430, BCAQMD Rule 275, KCAPCD 
Rule 111, MDAQMD Rule 430 and SHAQMD Rule 3:10. These are not required 
SIP submittals, so this disapproval would have no sanction implications 
under CAA section 179 or FIP implications under CAA section 110(c).
    We will accept comments from the public on the proposed disapproval 
for the next 30 days.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This rulemaking does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.)

C. 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 rulemaking action will not have a significant impact on a 
substantial number of small entities because SIP disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply disapprove for inclusion in the

[[Page 33901]]

SIP requirements that the State is already imposing. Therefore, because 
the Federal SIP disapproval 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 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).

D. Unfunded Mandates Reform Act

    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 
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 disapproval 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 proposes to 
disapprove 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.

E. Executive Order 13132, Federalism

    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 rulemaking action 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 disapproves state rules 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 
rulemaking.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' These proposed rule 
disapprovals do not have tribal implications, as specified in Executive 
Order 13175. They 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. Thus, Executive Order 
13175 does not apply to these rule disapprovals.
    EPA specifically solicits additional comment on these proposed rule 
disapprovals from tribal officials.

H. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    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 rulemaking on children, and explain why the planned action is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rulemaking is not subject to Executive Order 13045 because it 
does not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rulemaking 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.

I. 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.
    The EPA believes that VCS are inapplicable to this action. Today's 
action 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, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compound.

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


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    Dated: May 15, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 03-14320 Filed 6-5-03; 8:45 am]
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