[Federal Register Volume 68, Number 215 (Thursday, November 6, 2003)]
[Rules and Regulations]
[Pages 62738-62740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27848]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 140-0415; FRL-7583-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing disapproval of a revision 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 (SHCAQMD) 
portions of the California State Implementation Plan (SIP). This action 
was proposed in the Federal Register on June 6, 2003 (68 FR 33899) and 
concerns excess emissions and breakdown provisions. Under authority of 
the Clean Air Act as amended in 1990 (CAA or the Act), this action 
directs California to correct rule deficiencies in AVAQMD Rule 430, 
BCAQMD Rule 275, KCAPCD Rule 111, MDAQMD Rule 430, and SHCAQMD Rule 
3:10.

EFFECTIVE DATE: This rule is effective on December 8, 2003.

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 SIP revision at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Antelope Valley Air Quality Management District, 43301 Division St., 
Ste. 206, Lancaster, CA 93535-4649
Butte County Air Quality Management District, 2525 Dominic Drive, 
Suite J, Chico, CA 95928-7184
Kern County Air Pollution Control District, 2700 ``M'' Street, Suite 
302, Bakersfield, CA 93301-2370
Mojave Desert Air Quality Management District, 14306 Park Avenue, 
Victorville, CA 92392-2310
Shasta County Air Quality Management District, 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 website 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.

I. Proposed Action

    On June 6, 2003 (68 FR 33899), EPA proposed to disapprove the 
following rules that were submitted for incorporation into the 
California SIP.

[[Page 62739]]



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              Local agency                    Rule                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
SHCAQMD.................................         3:10  Excess Emissions...............     12/05/95     05/10/96
----------------------------------------------------------------------------------------------------------------

    We proposed to disapprove these rules because some rule provisions 
conflict with section 110 and part D of the Act. In particular, we are 
disapproving AVAQMD Rule 430, KCAPCD Rule 111, and MDAQMD Rule 430 
because the rules describe how the districts intend to apply their 
enforcement discretion in instances where facilities exceed emissions 
limits due to breakdown. We are disapproving BCAQMD Rule 275 and 
SHCAQMD Rule 3:10 because they fail to make clear that the excess 
emissions are violations of the applicable emissions limitations and 
that a determination by the APCO not to take an enforcement action (or 
finding by the APCD that an emergency exists) would not bar EPA or 
citizen action.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments.

III. EPA Action

    Therefore, as authorized in section 110(k)(3) of the Act, EPA is 
finalizing a disapproval of the submitted rules. These are not required 
SIP submittals, so this disapproval has no sanction or FIP implications 
under CAA sections 179 or 110(c). Note that the submitted rules have 
been adopted by the AVAQMD, BCAQMD, KCAPCD, MDAQMD, and SHCAQMD, and 
EPA's final disapproval does not prevent the local agency from 
enforcing them.

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

    These rules do 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.
    These rules will not have a significant impact on a substantial 
number of small entities because this SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act does not create any new 
requirements but simply disapproves 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 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 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 disapproves 
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.
    These rules 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

[[Page 62740]]

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.'' These final rules do 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.

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.
    These rules are not subject to Executive Order 13045 because they 
do not involve decisions intended to mitigate environmental health or 
safety risks.

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

    These rules are 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.

J. Congressional Review Act

    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 these rules 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 action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective December 8, 2003.

K. 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 January 5, 2004. 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: August 25, 2003.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.271 is amended by adding paragraphs (b)(5) and (b)(6) and 
(d) to read as follows:


Sec.  52.271  Malfunction, startup, and shutdown regulations.

* * * * *
    (a) * * *
    (5) Butte County AQMD.
    (i) Rule 275, Reporting Procedures for Excess Emissions, submitted 
on May 10, 1996.
    (6) Shasta County AQMD.
    (i) Rule 3:10, Excess Emissions, submitted on May 10, 1996.
* * * * *
    (d) The following regulations are disapproved because they merely 
describe how state agencies intend to apply their enforcement 
discretion and thus, if approved, the regulations would have no effect 
on the State Implementation Plan.
    (1) Antelope Valley AQMD.
    (i) Rule 430, Breakdown Provisions, submitted on February 16, 1999.
    (2) Kern County APCD.
    (i) Rule 111, Equipment Breakdown, submitted on July 23, 1996.
    (3) Mojave Desert AQMD.
    (i) Rule 430, Breakdown Provisions, submitted on January 24, 1995.

[FR Doc. 03-27848 Filed 11-5-03; 8:45 am]
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