[Federal Register Volume 75, Number 147 (Monday, August 2, 2010)]
[Proposed Rules]
[Pages 45082-45085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18889]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-0418; FRL-9183-8]


Revisions to the California State Implementation Plan, Santa 
Barbara County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the Santa Barbara County Air Pollution Control District 
(SBCAPCD) portion of the California State Implementation Plan (SIP). 
These revisions concern oxides of nitrogen (NOX) emissions 
from boilers, steam generators and process heaters with a rated heat 
input rate greater than 2 million BTU/hr and less than 5 million BTU/hr 
and internal combustion engines with a rated brake horse power of 50 or 
greater. We are proposing action on local rules that regulate 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 September 1, 2010.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2010-0418, 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. 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: Idalia Perez, EPA Region IX, (415) 
972-3248, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What rules did the State submit?
    B. Are there other versions of these rules?
    C. What is the purpose of the submitted rules?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the rules' 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 rules did the State submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
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              Local agency                  Rule No.              Rule title              Adopted     Submitted
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SBCAPCD.................................          361  Small Boilers, Steam Generators     01/17/08     07/18/08
                                                        and Process Heaters.
SBCAPCD.................................          333  Control of Emissions from           06/19/08     10/20/08
                                                        Reciprocating Internal
                                                        Combustion Engines.
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    On August 22, 2008, the submittal for SBCAPCD Rule 361 was found to 
meet the completeness criteria in 40 CFR part 51, appendix V, which 
must be met before formal EPA review. On November 22, 2008, the 
submittal for SBCAPCD 333 was found to meet the completeness criteria.

B. Are there other versions of these rules?

    There are no previous versions of Rule 361 in the SIP. There are no 
previous versions of Rule 333 in the SIP, although the District 
submitted a previous version of this rule on June 19, 1992 and we 
proposed a limited approval and a limited disapproval (60 FR 6049) but 
did not finalize the action. The District then submitted another

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version of this rule on March 10, 1998 and later withdrew the submittal 
on January 18, 2000.

C. What is the purpose of the submitted rules?

    NOX helps produce ground-level ozone, smog and 
particulate matter, which harm human health and the environment. 
Section 110(a) of the CAA requires States to submit regulations that 
control NOX emissions. Rule 361 regulates emissions of 
oxides of nitrogen (NOX) and carbon monoxide (CO) from 
boilers, steam generators and process heaters with a rated heat input 
rate greater than 2 million BTU/hr and less than 5 million BTU/hr. Rule 
333 regulates emissions of nitrogen oxides (NOX), reactive 
organic compounds (ROC) and carbon monoxide (CO) from internal 
combustion (IC) engines with a rated brake horse power of 50 or 
greater. EPA's technical support documents (TSDs) have more information 
about these rules.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
each category of sources covered by a Control Techniques Guidelines 
(CTG) document as well as each major source in nonattainment areas (see 
sections 182(a)(2) and 182(f)), and must not relax existing 
requirements (see sections 110(l) and 193). The SBCAPCD regulates an 
area that is classified as maintenance for the 1-hour ozone standard 
and is in attainment for all criteria pollutants (see 40 CFR part 81), 
thus, Rules 361 and 333 do not have to fulfill RACT requirements.
    Guidance and policy documents that we use to evaluate 
enforceability consistently include the following:
    1. ``State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble; Clean Air Act Amendments of 1990 Implementation of 
Title I; Proposed Rule,'' (the NOX Supplement), 57 FR 55620, 
November 25, 1992.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``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.
    5. ``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup and Shutdown'' from Steven A. 
Herman, Assistant Administrator for Enforcement and Compliance 
Assurance, and Robert Perciasepe, Assistant Administrator for Air and 
Radiation, September 9, 1999.
    B. Do the rules meet the evaluation criteria?
    Rules 361 and 333 improve the SIP by establishing more stringent 
emission limits. The rules are largely consistent with the relevant 
policy and guidance regarding enforceability and SIP relaxations. Rule 
provisions which do not meet the evaluation criteria are summarized 
below and discussed further in the TSDs.

C. What are the rule deficiencies?

    These provisions in Rule 361 conflict with section 110(a) of the 
Act and prevent full approval of the SIP revision.
    1. Section F.3 defines the length of the startup and shutdown 
intervals as ``not last[ing] longer than is necessary to reach stable 
temperatures and conditions''. This leads to enforceability concerns 
due to the lack of specificity of the duration of these periods. The 
duration of these periods should be further specified.
    2. Section G.4 states that documentation of fuel sulfur content 
must be kept as a record. The type of documentation required should be 
specified in the rule.
    These provisions in Rule 333 conflict with section 110(a) of the 
Act and prevent full approval of the SIP revision.
    1. Rule 333 includes various provisions allowing for APCO 
discretion without having explicit and replicable procedures that 
define how the discretion will be exercised to assure emission 
reductions.
    2. Section I.1 indicates that source tests shall be performed at 
the engine's maximum load or under the engines' typical duty cycle as 
demonstrated by historical operation data. This should be constrained 
to the engine's maximum load or conditions specified in the Permit to 
Operate. The option for testing at the engine's typical duty cycle 
should be further defined and justified.

D. EPA Recommendations to Further Improve the Rule

    The TSDs describe additional rule revisions that we recommend for 
the next time the local agency modifies the rules but that are not the 
basis for disapproval at this time.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of the submitted rules to improve the SIP. 
If finalized, this action would incorporate the submitted rules into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rules under section 110(k)(3). If this disapproval 
is finalized, no sanctions will be imposed under section 179 of the Act 
because SBCAPCD is not a required to have these rules in the applicable 
SIP. A final disapproval would also not trigger the 2-year clock for 
the federal implementation plan (FIP) requirement under section 110(c). 
Note that the submitted rules have been adopted by the SBCAPCD, and 
EPA's final limited disapproval would not prevent the local agency from 
enforcing them.
    We will accept comments from the public on the proposed limited 
approval and limited 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 action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
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.
    These rules will not have a significant impact on a substantial 
number of small entities because SIP approvals or disapprovals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the State is already imposing. Therefore, because the

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proposed Federal SIP limited approval/limited 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 limited approval/limited 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 approve and 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.
    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 proposes to approve or disapprove State rules 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.'' These proposed rules do not 
have tribal implications, as specified in Executive Order 13175. They 
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 these rules.
    EPA specifically solicits additional comment on these proposed 
rules from tribal officials.

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

    EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves state 
rules implementing a Federal standard.

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

    Executive Order (EO) 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. The Executive Order has informed the 
development and implementation of EPA's environmental justice program 
and policies. Consistent with the

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Executive Order and the associated Presidential Memorandum, the 
Agency's environmental justice policies promote environmental 
protection by focusing attention and Agency efforts on addressing the 
types of environmental harms and risks that are prevalent among 
minority, low-income and Tribal populations.
    This action will not have disproportionately high and adverse human 
health or environmental effects on minority, low-income or Tribal 
populations because it increases the level of environmental protection 
for all affected populations without having any disproportionately high 
and adverse human health or environmental effects on any population, 
including any minority or low-income population. Specially, EPA's 
simultaneous limited approval and limited disapproval of Rules 361 and 
333 would have the affect of strengthening environmental requirements 
throughout SBCAPCD, and would not relax environmental requirements in 
any area.

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 21, 2010.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 2010-18889 Filed 7-30-10; 8:45 am]
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