[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Proposed Rules]
[Pages 30845-30847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12303]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA250-0453; FRL-7668-3]


Disapproval of State Implementation Plan Revisions, Monterey Bay 
Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a revision to the Monterey Bay 
Unified Air Pollution Control District (MBUAPCD) portion of the 
California State Implementation Plan (SIP) concerning excess emissions 
during breakdown. We are proposing action on a local rule that 
regulates 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 1, 2004.

ADDRESSES: Send 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], or submit comments at http://www.regulations.gov.
    You can inspect copies of the submitted rule revisions, EPA's 
technical support document (TSD), and public comments at our Region IX 
office during normal business hours by appointment. You may also see 
copies of the submitted rule revisions by appointment at the following 
locations:

California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud 
Court, Monterey, CA 93940.

    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 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, [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 Are the Changes in the Submitted Rule?
II. EPA's Evaluation and Action
    A. How Is EPA Evaluating the Rule?
    B. Does the Rule Meet the Evaluation Criteria?
    C. Proposed Action and Public Comment.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule proposed for disapproval with the date that 
it was adopted and submitted by the California Air Resources Board 
(CARB).

                                             Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
             Local agency                 Rule No.              Rule title               Adopted      Submitted
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MBUAPCD...............................          214   Breakdown Condition...........     03/21/01      10/30/01
----------------------------------------------------------------------------------------------------------------

    On January 18, 2002, we determined that the rule submittal in Table 
1 met the completeness criteria in 40 CFR part 51, appendix V, which 
must be met before formal EPA review.

B. Are There Other Versions of This Rule?

    We approved a version of MBUAPCD Rule 214 into the SIP on July 13, 
1987.

C. What Are the Changes in the Submitted Rule?

    Rule 214 establishes that MBUAPCD may elect to take no enforcement 
action against an owner or operator of any equipment which has violated 
an emission standard or operational requirement provided that a 
breakdown has occurred and certain other conditions are met. The 
submitted revisions to MBUAPCD Rule 214 modify the rule's format and 
add clarifying language. The TSD has more information about this rule.

II. 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 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 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

[[Page 30846]]

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. Does the Rule Meet the Evaluation Criteria?

    The submitted SIP revisions conflict with section 110 and part D of 
the Act for the following reason. MBUAPCD Rule 214 describes how the 
district intends to apply its 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 an enforcement discretion rule such as Rule 214, 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 this 
enforcement discretion rule into the SIP.

C. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) of the Act, we are proposing a 
disapproval of the submitted MBUAPCD Rule 214. This is not a required 
SIP submittal, 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 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

    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 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 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

[[Page 30847]]

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 
disapproval 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 disapproval.
    EPA specifically solicits additional comment on this proposed rule 
disapproval from tribal officials.

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 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.

    Dated: May 19, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-12303 Filed 5-28-04; 8:45 am]
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