[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Proposed Rules]
[Pages 4742-4745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1839]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0269; FRL-9107-6]


Approval and Promulgation of Implementation Plans; State of 
California; Legal Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to clarify the contents of the applicable 
implementation plan for the State of California under the Clean Air 
Act. Specifically, EPA is proposing to clarify that the statutory 
provisions submitted by California and approved by EPA in 1972 
supporting the State's legal authority chapter of the original 
implementation plan were superseded by a subsequent approval by EPA in 
1980 of California's revision to the legal authority chapter of the 
plan. EPA is proposing this action to clarify the status in the 
California plan of the statutory provisions submitted and approved in 
1972.

DATES: Any comments must arrive by March 1, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0269, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions.
     E-mail: [email protected].
     Mail or deliver: Gerardo Rios, Chief, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an

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appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Gerardo Rios, Chief, Permits Office 
(AIR-3), U.S. Environmental Protection Agency, Region IX, (415) 972-
3974: [email protected].

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

Table of Contents

I. Summary of Today's Proposed Action
II. Background
III. Proposed Action
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews

I. Summary of Today's Proposed Action

    In today's action, under the Clean Air Act (CAA or ``Act''), we are 
proposing to clarify that the statutory provisions submitted by 
California in 1972 supporting the State's legal authority chapter of 
the original implementation plan were superseded by a subsequent 
approval by EPA in 1980 of a revision to California's legal authority 
chapter of the plan.

II. Background

    Pursuant to the Clean Air Act (CAA or ``Act''), as amended in 1970, 
EPA promulgated national ambient air quality standards (NAAQS) for 
certain air pollutants, including photochemical oxidants, hydrocarbons, 
carbon monoxide, nitrogen dioxide, sulfur oxides, and particulate 
matter. The 1970 Amended Act required each state to submit to EPA a 
plan which provides for the implementation, maintenance, and 
enforcement of the NAAQS within the state. These plans are referred to 
as state implementation plans (SIPs).
    The 1970 Amended Act also established content requirements for 
SIPs. Among other elements, the 1970 Amended Act required SIPs to 
provide ``necessary assurances that the State will have adequate * * * 
authority to carry out such implementation plan, * * *.'' See section 
110(a)(2)(F)(i) of the 1970 Amended Act. In 40 CFR 51.11 (now codified 
at 40 CFR 51.230-51.232), EPA regulations further specify that ``Each 
plan shall show that the State has legal authority to carry out the 
plan, including authority to (1) Adopt emission standards and 
limitations, * * *. (2) Enforce applicable laws, regulations, 
standards, * * *.'' EPA regulations further specify: ``The provisions 
of law or regulation which the State determines provide the authorities 
required under this section shall be specifically identified, and 
copies of such laws or regulations shall be submitted with the plan.'' 
See 40 CFR 51.11(c) (1972). In other words, the laws or regulations 
relied upon by the State to provide the necessary assurances of 
adequate legal authority must be identified in the plan, but copies of 
the actual laws or regulations themselves, while they must be submitted 
with the plan, need not be part of the plan itself.
    On February 21, 1972, Governor Ronald Reagan submitted the original 
California SIP to EPA. The original SIP consisted of 13 parts, the 
first of which was referred to as the ``State General Plan.'' The other 
parts contained air-basin-specific elements and appendices. The ``State 
General Plan'' was divided into eight chapters. Chapter 7 (``Legal 
Considerations,'' or, as referred to herein, the ``legal authority'' 
chapter) was submitted as part of the original SIP to meet the 
statutory and regulatory requirements described above in connection 
with legal authority. Chapter 7 describes, among other things, the 
history of air pollution control in California, the legal authority of 
the California Air Resources Board (ARB) and the local air districts to 
adopt emission limitations, enforce applicable laws, prevent new 
construction, obtain emission information, require source monitoring, 
and describes various principles governing transportation and land use 
controls. Chapter 7 includes many citations to individual sections 
within the California Health & Safety, Penal, Civil Procedure, 
Government, and Vehicle codes, as well as citations to (then) recently 
approved legislation, and attorney general opinions as support for the 
assurance that adequate legal authority exists in the state to meet CAA 
and EPA SIP requirements.
    The state included an appendix to chapter 7 (entitled ``Appendix 
II: State Statutes and other Legal Documents Pertinent to Air Pollution 
Control in California'') in the plan (herein, ``appendix II'') that 
included the specific sections of California code and other legal 
documents cited in chapter 7, but also included many sections of the 
California Health & Safety Code (CH&SC) that were not cited 
specifically in chapter 7. Appendix II was organized into 14 
categories: CH&SC provisions related to air pollution and pertinent 
1971 amendments (not then yet codified), certain Penal Code sections, 
Senate Bill 678 (related to authority of attorney general to protect 
the environment), the California Emergency Services Act, an order 
approved by the Governor related to emergencies, certain California 
Code of Civil Procedure sections, certain Government Code sections, 
examples of continuous monitoring rules, the California Public Records 
Act, a Letter Opinion of the California Attorney General dated March 8, 
1971 related to authority for regulating fuel composition, a Letter 
Opinion of the California Attorney General dated October 6, 1971 
related to authority of the San Francisco Bay Area air pollution 
control district to prevent new construction, certain California 
Vehicle Code sections related to bus and commuter freeway lanes, SB 325 
(1971) establishing a sales tax on gasoline, and various land use laws, 
including Assembly Bill (AB) 2070 (1970) related to land use planning 
requirements and the establishment of the Office of Planning and 
Research, certain California Government Code provisions, and AB 1301 
(1970) related to consistency between zoning and general plans.
    In May 1972, EPA approved in part and disapproved in part the 
original California SIP. See 37 FR 10842 (May 31, 1972) and 40 CFR 
52.220(b). With respect to legal authority, EPA approved the submittal 
but found that the SIP did not meet certain requirements related to air 
pollution emergencies and availability of emission data. See 37 FR 
10842, at 10852 and 40 CFR 52.225. EPA's approval included both chapter 
7 and the statutory and other documents contained in appendix II as 
described above.
    In response to EPA's request and in response to the Clean Air Act 
Amendments of 1977, California undertook a comprehensive update to the 
California SIP. On March 16, 1979, the ARB submitted a revision to the 
legal authority chapter of the SIP, entitled ``Chapter 3--Legal 
Authority, Revision to State of California Implementation Plan for the 
Attainment and Maintenance of Ambient Air Quality Standards (December 
1978),'' (also referred to herein as the revised ``legal authority'' 
chapter). Much like the original legal authority chapter, the revised 
legal authority chapter provides an overview of air pollution control 
in California, generally describes the statutory responsibilities and 
authority of the ARB and the air pollution control districts, and 
addresses specific legal authorities for enforcement of the SIP, right 
of entry and source information gathering, public availability of data, 
emergency episodes, new source review, vehicular controls, and 
transportation and land use controls. While the general topics covered 
in the revised legal authority chapter were similar to those covered in 
the original legal authority chapter, the discussion is completely re-
organized and updated to reflect, among other things, recodifications 
of statutory

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provisions. Also, like the legal authority chapter in the original SIP, 
the revised legal authority chapter includes numerous citations to 
individual sections of the CH&SC (which had been re-numbered and re-
codified since the time of the original SIP), certain citations to 
other California codes (e.g., Business and Professions Code, 
Administrative Code, Government Code and Vehicle Code) and an attorney 
general's letter opinion. However, unlike the legal authority chapter 
in the original SIP, the revised legal authority chapter, as submitted 
in 1979, did not include physical copies of the actual statutory 
provisions nor the other documents cited in the chapter. Instead, the 
1979 SIP revision simply incorporates by reference the 1978 edition of 
California Air Pollution Control Laws as ``appendix 3-A'' to the 
chapter. Later in 1979, we proposed approval of the revised SIP 
``Chapter 3--Legal Authority'' as an update and clarification of the 
1972 SIP. See 44 FR 38912 (July 3, 1979). The following year, we took 
final action, effective September 10, 1980, to approve the revised 
legal authority chapter. See 45 FR 53136 (August 11, 1980) and 40 CFR 
52.220(c)(48). Since that time, EPA has not approved any other revision 
to the chapter that addresses legal authority in the California SIP.
    Recently, the status of the statutory provisions from the original 
SIP has come into question in the context of third party litigation, an 
EPA rulemaking action on a revision to new source review rules in the 
San Joaquin Valley, and a lawsuit filed against EPA challenging certain 
EPA actions on the premise that such actions were arbitrary and 
capricious if a certain statutory provision submitted and approved by 
EPA in connection with the original SIP remains in effect as part of 
the current applicable California SIP.\1\ Thus, we believe that 
clarification of the status of the statutory provisions (and other 
legal documents) submitted in connection with the original SIP is 
necessary and appropriate at this time.
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    \1\ See Ass'n of Irritated Residents v. C&R Vanderham Dairy, No. 
1:05-CV-01593(OWW) (E.D. Cal.) (third-party litigation); 73 FR 9260 
(February 20, 2008) (EPA proposed rule approving changes to San 
Joaquin Valley new source review rules); and Sierra Club v. EPA, No. 
08-70395 (9th Cir. filed January 28, 2008) (petition for review of 
three EPA actions). The particular provision at issue in these 
examples is CH&SC section 24265, which excludes certain categories 
of emissions sources, including equipment used in agricultural 
operations in the growing of crops or raising of fowls or animals, 
from the general grant of authority to local air districts to 
require permits for new and existing emissions sources. CH&SC 
section 24265 was not cited specifically in the legal authority 
chapter of the original SIP but was included within the large 
excerpt from the CH&SC submitted by the State of California in 
support of the original legal authority chapter. (CH&SC section 
24265 was later re-codified as CH&SC section 42310.) As proposed in 
this action, it is clear that the statutory agricultural permitting 
exemption from the original SIP does not remain in effect as part of 
the current applicable California SIP. For the purposes of State 
law, effective January 1, 2004, Senate Bill 700 (2003) repealed the 
full permitting exemption for agricultural sources then in CH&SC 
42310(e) and added a new section that provides a limited permitting 
exemption for minor agricultural sources. However, the California 
SIP has historically included, and continues to include, certain 
local district permitting rules that explicitly exempt agricultural 
sources or refer to the statutory agricultural exemption. EPA 
expects California to continue the process of revising local 
district permitting rules as necessary to amend the SIP consistent 
with the provisions of Senate Bill 700.
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III. Proposed Action

    As shown from the State's submittals and the regulatory history of 
EPA's actions on the legal authority chapter, and revisions thereto, of 
the California SIP (as described in the previous section of this 
document), the statutory provisions and other legal documents submitted 
in support of the legal authority chapter in the original SIP are no 
longer part of the California SIP. The statutory provisions and other 
legal documents were superseded by our 1980 approval of the revised 
legal authority chapter of the California SIP (codified at 40 CFR 
52.220(c)(48)). Our conclusion in this regard follows from our finding, 
based on the nature and scope of the revised chapter and the mismatch 
between the statutory citations in the revised chapter and those 
contained in the original chapter, that the 1979 submittal of the 
revised legal authority chapter represented a wholesale replacement of 
the original chapter.\2\ We also note that the actual statutory 
provisions and other legal documents relied upon to support a state's 
assurance of adequate legal authority need not be approved into the SIP 
under CAA section 110 or EPA's SIP regulations in 40 CFR part 51 
(although such provisions are required to be submitted with the plan). 
Thus, EPA could approve, consistent with CAA and EPA requirements, and 
did so in this instance, a wholesale revision to the original legal 
authority chapter without also approving the actual statutory 
provisions and other legal documents cited therein.\3\
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    \2\ ARB described the nature and purpose of that agency's 
comprehensive update of the California SIP during the late 1970's as 
follows: ``The [EPA] has formally requested that the [ARB] update 
the State of California Implementation Plan for Achieving and 
Maintaining the National Ambient Air Quality Standards, usually 
referred to simply as the `SIP.' The original SIP document, 
submitted to EPA in 1972, has become obsolete largely because of the 
many modifications to federal, state, and local air pollution rules 
and regulations and substantial advancements in technical aspects of 
air pollution prediction and control. A new SIP 1978 Working 
Document has been prepared as an initial response to the EPA request 
and contains an updated summary and description of the California 
SIP. * * * The SIP 1978 Working Document is a step towards replacing 
the obsolete 1972 SIP.'' See page 1 of Chapter 1 (``Introduction'') 
(April 1978) of the SIP--78 Working Document. Therefore, the revised 
legal authority was intended by ARB, and approved by EPA, as a 
wholesale replacement of the original legal authority chapter, 
including the related statutory provisions and other materials 
submitted in support of the original chapter.
    \3\ We view the revised legal authority chapter's incorporation 
(as appendix 3-A) of the 1978 edition of California Air Pollution 
Control Laws as simply providing a general reference to where the 
statutory citations in the chapter could be located rather than as 
having the effect of a literal reading of the provisions into the 
chapter.
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    To memorialize our interpretation of the effect of our 1980 
approval of the revised legal authority chapter of the California SIP 
and thereby clarify the status of the statutory and other legal 
documents submitted in connection with the original California SIP's 
legal authority chapter, we propose today under CAA section 301(a)(1) 
\4\ to revise 40 CFR 52.220(b)(12)(i).
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    \4\ CAA section 301(a)(1) states: ``The Administrator is 
authorized to prescribe such regulations as are necessary to carry 
out his functions under this chapter. * * *.'' We believe that our 
rule proposed herein today is necessary to clarify the contents of 
the California SIP and thereby carry out the functions of EPA in 
connection with the state's plan.
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    The relevant provision of the CFR, 40 CFR 52.220(b)(12), currently 
lists certain CH&SC provisions related to variances that EPA deleted 
from the California SIP in 2004. See 69 FR 67062 (November 16, 2004). 
In today's action, we are proposing to revise 40 CFR 52.220(b)(12) to 
clarify that none of the statutory provisions (and other legal 
documents) submitted in connection with chapter 7 (Legal 
Considerations) of the original California SIP remain in the SIP, not 
just the few provisions currently listed. We propose to revise 40 CFR 
52.220(b)(12) to codify the date (September 10, 1980) on which the 
statutory provisions (and other legal documents) were superseded in the 
California SIP.
    The effect of our action, if finalized as proposed, would be to 
clarify that the subject statutory provisions, including the statutory-
based agricultural permitting exemption contained in CH&SC section 
24265, have not been part of the California SIP since the effective 
date (September 10, 1980) of our 1980 approval of the revised legal 
authority chapter of the California SIP.\5\
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    \5\ However, as noted in footnote 1 in this document, 
the California SIP has historically included, and continues to 
include, certain local district permitting rules that explicitly 
exempt agricultural sources or refer to the statutory agricultural 
exemption. EPA expects California to continue the process of 
revising local district permitting rules as necessary to amend the 
SIP consistent with the provisions of Senate Bill 700.

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IV. Public Comment and Final Action

    Under CAA section 301(a)(1) and for the reasons discussed above, 
EPA is proposing to clarify that the statutory provisions and other 
legal documents submitted in connection with the legal authority 
chapter of the original 1972 California SIP were superseded by EPA's 
approval of a revised legal authority chapter in 1980 (and codified at 
40 CFR 52.220(c)(48)). To memorialize EPA's interpretation of the 
effect of the 1980 final rule on the earlier submitted and approved 
statutory provisions and other legal documents, EPA is proposing to 
revise 40 CFR 52.220(b)(12)(i) to read as follows:

    ``(i) Previously approved on May 31, 1972 and deleted without 
replacement, effective September 10, 1980, chapter 7 of part I and 
all of the statutory provisions and other legal documents contained 
in appendix II to chapter 7 (Legal Considerations).''

    EPA is soliciting public comments on the issues discussed in this 
document and will accept comments for the next 30 days. These comments 
will be considered before taking final action.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to clarify the effect of a 
previous approval by EPA of a state submittal as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Accordingly, 40 CFR Part 52 is proposed to be amended as follows:

PART 52--[AMENDED]

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

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

    2. Section 52.220 is amended by revising paragraph (b)(12)(i) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (b) * * *
    (12) * * *
    (i) Previously approved on May 31, 1972 and deleted without 
replacement, effective September 10, 1980, chapter 7 of part I and all 
of the statutory provisions and other legal documents contained in 
appendix II to chapter 7 (Legal Considerations).
* * * * *

    Dated: January 21, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-1839 Filed 1-28-10; 8:45 am]
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