[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Proposed Rules]
[Pages 13468-13471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6103]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0080; FRL-9128-7]


Disapproval of California 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 (MBAPCD) portion of the 
California State Implementation Plan (SIP). This revision concerns 
opacity standards related to multiple pollutants, including particulate 
matter (PM) emissions from several different types of sources, ranging 
from fugitive dust to gas turbine generators. We are proposing action 
on a local rule that regulates these emission sources 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 April 21, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0080, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    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.

[[Page 13469]]

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

FOR FURTHER INFORMATION CONTACT: Andrew Steckel, EPA Region IX, 
(415)947-4115, [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. 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 Deficiencies?
    D. EPA Recommendations To Further Improve the Rule
    E. 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
----------------------------------------------------------------------------------------------------------------
                                     Rule                 Rule title              Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
MBUAPCD............................          400   Visible Emissions..........        12/15/04         03/07/08
----------------------------------------------------------------------------------------------------------------

    On April 17, 2008, EPA found this rule submittal met the 
completeness criteria in 40 CFR Part 51 Appendix V. These criteria must 
be met before formal EPA review.

B. Are There Other Versions of This Rule?

    On August 11, 2005, EPA approved a previous version of Rule 400 
into the SIP. Please see 70 FR 46770. CARB has not submitted a 
subsequent version of the rule for our consideration besides the March 
2008 version.

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

    Particulate matter (PM) contributes to effects that are harmful to 
human health and the environment, including premature mortality, 
aggravation of respiratory and cardiovascular disease, decreased lung 
function, visibility impairment, and damage to vegetation and 
ecosystems. Section 110(a) of the CAA requires States to submit 
regulations that control PM and other emissions.
    MBUAPCD Rule 400 is designed to limit the emissions of particulate 
matter or other pollutants such as oxides of nitrogen from a variety of 
activities and sources using a 20% opacity standard. These sources may 
include construction sites, unpaved roads, disturbed soil in open 
areas, and power plants. MBUAPCD has amended Rule 400 to allow for a 
40% opacity standard in lieu of the rule's existing 20% opacity 
standard during facility start-up operations. EPA's technical support 
document (TSD) has more information about this submitted 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) and must not relax existing requirements (see sections 110(l) and 
193). In addition, SIP rules must implement Reasonably Available 
Control Measures (RACM), including Reasonably Available Control 
Technology (RACT), in moderate PM nonattainment areas, and Best 
Available Control Measures (BACM), including Best Available Control 
Technology (BACT), in serious PM nonattainment areas (see CAA sections 
189(a)(1) and 189(b)(1)). The MBUAPCD, however, attains the PM 
standards and is not required to implement RACM or BACM per section 
189.
    Guidance and policy documents that we use to evaluate 
enforceability and other regulatory requirements include the following:
    1. ``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.
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    3. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
    4. ``State Implementation Plans for Serious PM-10 Nonattainment 
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas 
Generally; Addendum to the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990,'' 59 FR 41998 (August 
16, 1994).
    5. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
    6. ``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown'', USEPA Memorandum, 
September 20, 1999.

B. Does the Rule Meet the Evaluation Criteria?

    Rule 400 is largely enforceable, but has one provision which does 
not meet the evaluation criteria. This deficiency is summarized below 
and discussed further in the TSD.

C. What Is the Rule Deficiency?

    New section 3.2.3 places no time limitation on opacity between 20% 
and 40% for gas turbines except as defined in the District permit 
pursuant to new section 2.5. This is inconsistent with long-standing 
national policy on excess emissions, which explains that SIP rules must 
ensure that emissions during startup conditions are minimized. We 
believe this could be addressed by adding rule text establishing 
appropriate time limitations on gas turbine startup, requiring sources 
to minimize time and emissions during startup, and demonstrating in the 
staff report that the rule minimizes emissions during startup.

[[Page 13470]]

D. EPA Recommendations to Further Improve the Rule

    The TSD describes an additional rule revision that we recommend for 
the next time the local agency modifies the rule, but that is not 
currently the basis for disapproval of the rule.

E. 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 400. If finalized, this 
action would retain the version of Rule 400 approved in 2005 in the 
SIP. Sanctions will not be imposed under section 179 of the Act, 
because revision of Rule 400 is not a required submittal under the CAA 
and the Monterey Bay area continues to meet the NAAQS for multiple 
pollutants, including ozone and PM. A final disapproval would similarly 
not trigger the Federal implementation plan (FIP) requirement under 
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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action 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 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), 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.''
    This action does not have federalism implications. It 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 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not 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. Thus, 
Executive Order 13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997). This proposed SIP disapproval under section 110 
and subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new regulations but simply disapproves certain State 
requirements for inclusion into the SIP.

[[Page 13471]]

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

    This proposed rule is not subject to Executive Order 13211 (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(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove State choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapprove certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it 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.

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: February 23, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-6103 Filed 3-19-10; 8:45 am]
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