[Federal Register Volume 68, Number 188 (Monday, September 29, 2003)]
[Proposed Rules]
[Pages 55917-55920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24558]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA255-0413; FRL-7564-7]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove revisions to the San Joaquin 
Valley Unified Air Pollution Control District's (SJVUAPCD) portion of 
the California State Implementation Plan (SIP). These revisions concern 
visible emissions (VE) from many different sources of air pollution. We 
are proposing to disapprove SJVUAPCD Rule 4101, a local rule regulating 
VE, 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. Previously, EPA proposed to approve Rule 4101.

DATEs: Any comments must arrive by October 29, 2003.

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 or e-mail to 
[email protected].
    You can inspect copies of the submitted SIP revisions and the 
administrative record for EPA's previous proposal 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; and,
San Joaquin Valley Unified Air Pollution Control District, 1990 East 
Gettysburg Street, Fresno, CA 93726.

    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: Jerald S. Wamsley, Rulemaking Office 
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-
1226, or via e-mail at [email protected].

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. Our Prior Proposed Action, Public Comments, and EPA Response.
III. 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.
IV. Statutory and Executive Order Reviews.

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 SJVUAPCD and submitted by the California Air 
Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
               Local agency                  Rule No.             Rule title             Adopted      Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD.................................         4101   Visible Emissions..........     11/15/01      12/06/01
----------------------------------------------------------------------------------------------------------------

    On January 22, 2002, EPA found this rule submittal met the 
completeness criteria in 40 CFR part 51 appendix V.

B. Are There Other Versions of the Rule?

    Prior to the SJVUAPCD's formation, eight county-wide air pollution 
control districts (APCDs) in San Joaquin, Stanislaus, Merced, Madera, 
Fresno, Kings, Tulare, and Kern counties regulated air pollution in 
California's San Joaquin Valley. In almost all cases, EPA approved and 
incorporated into the Federal SIP versions of these individual county 
rules: Rule 401--Visible Emission, Rule 402--Exemptions, and Rule 403--
Wet Plumes. Please see the Technical Support Document (TSD) for our 
previous rulemaking proposal on Rule 4101 for a table of these local 
rule adoptions and SIP approval dates. On

[[Page 55918]]

December 17, 1992, SJVUAPCD adopted Rule 4101 to consolidate and 
supercede these individual county VE and related rules.
    EPA has received two prior versions of Rule 4101. SJVUAPCD adopted 
the first version on December 17, 1992, and CARB submitted the rule to 
EPA on September 28, 1994. SJVUAPCD adopted the second version on June 
21, 2001, and CARB submitted the rule to EPA on October 30, 2001. 
However, EPA has not acted on these versions of Rule 4101. While we can 
act on only the most recently submitted version listed in Table 1, we 
have reviewed material provided with these previous submittals.

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

    Visible emission rules with opacity standards are basic components 
of air quality regulatory programs. Rule 4101 prohibits air pollution 
that results in greater than 20% opacity. The TSD associated with our 
prior proposal has more information about Rule 4101 and the county-
level rules it replaces.

II. Our Previous Proposed Action, Public Comments, & EPA Responses

    On June 10, 2002 (67 FR 39659), EPA proposed to approve Rule 4101 
based on an initial assessment that the Rule improved the SIP and was 
consistent with relevant CAA requirements. For the reasons discussed 
below, EPA does not intend to take final action on this proposal.
    During the comment period for this proposed approval, we received 
comments from Brent Newell, Center on Race, Poverty, and the 
Environment, on behalf of El Comite para el Bienestar de Earlimart and 
the Association of Irritated Residents. We have summarized these 
comments and provided our responses below.
    Comment #1: EPA did not determine whether Rule 4101 implements Best 
Available Control Measures (BACM), as required by CAA section 189(b) 
for serious PM-10 nonattainment areas such as SJVUAPCD. The proposed 
full approval determines that the rule provides Reasonably Available 
Control Measures (RACM), but neither mentions BACM, nor determines that 
a 20% opacity threshold fulfills BACM.
    Response #1: EPA concurs that BACM under CAA section 189(b) as well 
as RACM under CAA section 189(a) must be implemented in the San Joaquin 
Valley PM-10 nonattainment area. EPA has approved general 20% opacity 
rules in other serious PM-10 nonattainment areas, and does not believe 
a more stringent general limit is required in Rule 4101 to meet the 
Act's BACM requirement. See, for example, South Coast Air Quality 
Management District Rule 401, Great Basin Air Pollution Control 
District Rule 400, Clark County Air Quality Management Board Rule 26 
and Washoe County District Health Department Air Quality Management 
Division Rule 040.005.
    Comment #2: Section 4.4 of Rule 4101 exempts agricultural sources 
from the 20% opacity requirement. On-field farming operations accounted 
for 111 tons per day of PM-10 emissions in 2000, 23% of the air basin's 
total inventory. By exempting such significant emissions, Rule 4101 
meets neither RACM, nor BACM requirements.
    Response #2: Twenty percent opacity is reasonably available for 
most or all common industrial sources, as shown by the many Districts 
in California and many states across the country (e.g., Michigan (see 
Michigan Administrative Code Rule 336.1301), New Mexico (see New Mexico 
Administrative Code at Title 20-2-61), Texas (see Texas Administrative 
Code at Title 30, Part 1-111.111), and Washington (see Washington 
Administrative Code at Title 173-400-040) that apply a general 20% 
opacity requirement. It may be possible to demonstrate that higher, 
lower, or different forms of opacity standards are appropriate RACM and 
BACM for a specific source. Nonetheless, we concur with the comment 
that it is inappropriate to exempt broadly the entire agricultural 
industry from opacity requirements without an analysis of what types of 
sources are affected and why a 20% opacity requirement is 
inappropriate. For example, internal combustion engines used by public 
utilities and excavation industries in San Joaquin are subject to the 
20% opacity requirement, while internal combustion engines used for 
agricultural irrigation are not.
    Comment #3: Section 4.11 exempts sources subject to or specifically 
exempted by Regulation VIII from Rule 4101. The comment references 
concerns provided previously about agricultural exemptions in 
Regulation VIII.
    Response #3: We believe Rule 4101 would be improved by providing an 
itemized list of exempt activities in the rule instead of the current 
general reference to Regulation VIII. However, we do not object to the 
overall concept of applying BACM-level opacity requirements to some 
sources via Rule 4101, and other sources via Regulation VIII. A similar 
structure exists for SJVUAPCD Rule 4661, which establishes general 
requirements for organic solvents, but exempts those sources regulated 
by industry-specific rules.

III. 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 appropriate requirements for nonattainment areas (see 
section 189), and must not relax existing requirements (see sections 
110(l) and 193). The SJVUAPCD regulates a serious PM-10 nonattainment 
area (see 40 CFR part 81), so Rule 4101 must meet both CAA RACM and 
BACM requirements.
    Guidance and policy documents that we used to define these 
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 Notice,'' (Blue Book), notice of availability published in the 
May 25, 1988, Federal Register.
    3. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 57 FR 13540-13541, April 16, 
1992.
    4. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' at 59 FR 42008-42015, August 16, 
1994.

B. Does the Rule Meet the Evaluation Criteria?

    Consolidation of county-specific requirements into Rule 4101 
clarifies VE and related requirements within the San Joaquin 
nonattainment area. However, while the Rule is consistent, in part, 
with the relevant federal policy and requirements, there are rule 
provisions which do not meet the evaluation criteria.

C. What Are the Rule's Deficiencies?

    Certain provisions of Rule 4101 conflict with section 110 and part 
D of the Act and prevent full approval of the SIP revision. These 
deficiencies are discussed below.
    1. Section 4.4 is inconsistent with the CAA section 189 RACM and 
BACM requirements. Its general exemption for agricultural sources 
should be either deleted altogether, or significantly narrowed in scope 
and justified.
    2. Section 4.10 references California Health and Safety Code (HSC) 
section 41701. This reference has not been submitted to EPA for 
incorporation into the applicable SIP, thus it undermines

[[Page 55919]]

the clarity and enforceability of the rule and is inconsistent with CAA 
section 110(a), (i) and (l). SJVUAPCD should do one of three things, 
remove the exemption, submit the referenced HSC section, or insert 
specific text from the HSC into Rule 4101. Note that EPA has not 
reviewed the substance of the HSC.

D. EPA Recommendations To Further Improve the Rule

    We have no recommended rule revisions that do not affect EPA's 
current action.

E. Proposed Action and Public Comment

    For the reasons described in section III above and as authorized in 
section 110(k)(3) of the Act, we are proposing to disapprove SJVUAPCD 
Rule 4101. If finalized, this action would retain the existing 
individual county rules within the SIP. Unless EPA approves subsequent 
SIP revisions correcting the rule's deficiencies within 18 months, 
sanctions would be imposed according to CAA section 179 and 40 CFR 
52.30-32. Our final disapproval would also trigger the FIP requirement 
under section 110(c).
    We will accept comments from the public on this proposed 
disapproval for the next 30 days.

IV. 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 rule 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 proposed rule 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. 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 sections 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 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 disapproves 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.

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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

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G. 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 rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This proposed rule 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 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.

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, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements.

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

    Dated: September 8, 2003.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 03-24558 Filed 9-26-03; 8:45 am]
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