[Federal Register Volume 80, Number 226 (Tuesday, November 24, 2015)]
[Proposed Rules]
[Pages 73156-73160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29802]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2015-0545; FRL-9937-27-Region 9]


Disapproval of California Air Plan Revisions, South Coast Air 
Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove revisions to the South Coast Air Quality Management District 
(SCAQMD) portion of the California State Implementation Plan (SIP) 
concerning Vehicle Scrapping, Employee Trip Reduction, and procedures 
for the hearing board concerning variances and subpoenas.

[[Page 73157]]

We are proposing action on local rules that regulate these activities 
under the Clean Air Act (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 December 24, 2015.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2015-0545, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. Email: [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 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 www.regulations.gov or email. 
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 email directly to EPA, your email 
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. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: Generally, documents in the docket for this action are 
available electronically at 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 at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), 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 P[eacute]rez, EPA Region IX, 
(415) 972-3248, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the 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 the EPA evaluating these rules?
    B. Do the rules meet the evaluation criteria?
    C. What are the identified rule deficiencies?
    D. 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 proposed for disapproval with the date that 
they were adopted or amended and submitted by the California Air 
Resources Board (CARB).

                                            Table 1--Submitted Rules
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                                                                                    Adopted or
            Local agency                Rule No.              Rule title              amended        Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD.............................            1610  Old-Vehicle Scrapping......        05/09/97        06/03/97
SCAQMD.............................            2202  On-Road Motor Vehicle              10/09/98        06/03/99
                                                      Mitigation Options.
SCAQMD.............................           503.1  Ex Parte Petitions for             02/05/88        02/07/89
                                                      Variances.
SCAQMD.............................             504  Rules from which Variances         01/05/90        05/13/91
                                                      Are Not Allowed.
SCAQMD.............................           511.1  Subpoenas..................        02/05/88        02/07/89
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    On December 3, 1997, the submittal for SCAQMD Rule 1610 was deemed 
by operation of law to meet the completeness criteria in 40 CFR part 
51, appendix V, which must be met before formal EPA review. On December 
3, 1999, the submittal for SCAQMD Rule 2202 was deemed by operation of 
law to meet the completeness criteria. On May 5, 1989, the EPA 
determined that the submittal for SCAQMD Rules 503.1 and 511.1 met the 
completeness criteria. On July 10, 1991, the EPA determined that the 
submittal for SCAQMD Rule 504 met the completeness.

B. Are there other versions of these rules?

    There are no previous versions of Rule 1610 in the SIP, although 
the SCAQMD adopted earlier versions of this rule on 02/11/94, 10/13/95, 
02/08/96 and 04/11/97, and CARB submitted them to us on 07/13/94, 10/
18/96, 10/18/96 and 06/03/97 respectively. There are no previous 
versions of Rule 2202 in the SIP, although the SCAQMD adopted earlier 
versions of this rule on 12/08/95, 03/08/96 and 11/08/96, and CARB 
submitted them to us on 11/26/96, 11/26/96 and 12/19/97 respectively. 
There are no previous versions of Rules 503.1 and 511.1. There are no 
previous versions of Rule 504 in the SIP, although the SCAQMD adopted 
an earlier version of this rule on 02/05/88. While we can only act on 
the most recently submitted version, we have reviewed materials 
provided with previous submittals.

C. What is the purpose of the submitted rules?

    Nitrogen oxides (NOX) and volatile organic compounds 
(VOCs) help produce ground-level ozone, smog and particulate matter 
(PM), which harm human health and the environment. Section 110(a) of 
the CAA requires States to submit regulations that control VOC and 
NOX emissions. Rule 1610 is a voluntary rule with the goal 
of reducing motor vehicle exhaust emissions of VOC, NOX, 
carbon monoxide (CO), and PM by issuing mobile source emission 
reduction credits (MSERCs) in exchange for the scrapping of old, high 
emitting vehicles. Rule 2202 requires employers with 250 or more full 
or part-time employees at a worksite to reduce mobile source emissions 
of VOC, NOX and CO generated from employee commutes. The 
EPA's technical support documents (TSDs) have more information about 
rules 1610 and 2202.
    Rules 503.1 describes procedures for how sources can apply for ex 
parte variances. Rule 504 specifies rules for which the SCAQMD hearing 
board will not grant variances. Rule 511.1

[[Page 73158]]

describes procedures for the hearing board regarding subpoenas.

II. EPA's Evaluation and Action

A. How is the EPA evaluating these rules?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not 
interfere with applicable requirements concerning attainment and 
reasonable further progress or other CAA requirements (see CAA section 
110(l)), and must not modify certain SIP control requirements in 
nonattainment areas without ensuring equivalent or greater emissions 
reductions (see CAA section 193). In addition, pursuant to CAA section 
110(i), neither EPA nor a state may revise a SIP by issuing an ``order, 
suspension, plan revision, or other action modifying any requirement of 
an applicable implementation plan'' without a plan promulgation or 
revision.
    Generally, SIP rules 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 of 
VOCs and NOX in ozone nonattainment areas classified as 
moderate or above (see CAA section 182(b)(2) and 182(f)). The SCAQMD 
regulates an ozone nonattainment area classified as extreme for the 
1997 and 2008 8-hour ozone standards (40 CFR 51.305). In addition, SIP 
rules must implement Reasonably Available Control Measures (RACM) in 
moderate PM2.5 nonattainment areas (see CAA sections 
172(c)(1) and 189(a)(1)(C)). The SCAQMD regulates a PM2.5 
nonattainment area classified as moderate for the annual and 24-hour 
standards (40 CFR 51.312). A RACM evaluation is generally performed in 
context of a broader plan.
    Guidance and policy documents that we use to evaluate 
enforceability, revision/relaxation and rule stringency requirements 
for the applicable criteria pollutants include the following:

    1. ``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).
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 
11, 1990).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``Review of State Implementation Plans and Revisions for 
Enforceability and Legal Sufficiency,'' EPA from J. Craig Potter, 
Thomas L. Adams Jr., Francis S. Blake, September 23, 1987.
    5. ``Guidance an Enforceability Requirements for Limiting 
Potential to Emit through SIP and Sec.  112 Rules and General 
Permits'' EPA from Kathie A. Stein, January 25, 1995.

B. Do the rules meet the evaluation criteria?

    EPA supports SCAQMD efforts to implement nontraditional and 
innovative strategies for reducing air pollutant emissions, including 
commuter programs to reduce the frequency that employees drive alone to 
work, and programs to incentivize early adoption and turnover to 
cleaner, less-polluting mobile sources.\1\ Nonetheless, we have 
identified several provisions in these rules that do not meet the 
evaluation criteria. These deficiencies are summarized below and 
discussed further in the TSDs. Because these deficiencies are 
significant enough to prevent our approval of these rules, we have not 
attempted to identify all other potential approvability issues, and are 
not providing a detailed analysis of all the evaluation criteria listed 
above. While we cannot propose to approve SCAQMD Rules 1610 and 2202 at 
this time, we commend SCAQMD's leadership in developing and 
implementing creative programs like these for many years and we commit 
to continued collaboration to address SCAQMD's air quality challenges.
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    \1\ See, e.g., U.S. EPA, Transportation and Climate Division, 
Office of Transportation and Air Quality, ``Commuter Programs: 
Quantifying and Using Their Emission Benefits in SIPs and 
Conformity'' (February 2014) and Memorandum from Richard D. Wilson, 
Acting Assistant Administrator for Air and Radiation, to EPA 
Regional Administrators, re: ``Guidance on Incorporating Voluntary 
Mobile Source Emission Reduction Programs in State Implementation 
Plans (SIPs)'' (October 1997).
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    EPA and California have long recognized that a state-issued 
variance, though binding as a matter of state law, does not prevent EPA 
from enforcing the underlying SIP provisions unless and until EPA 
approves that variance as a SIP revision. The variance provisions in 
Rules 503.1 and 504 are deficient for various reasons, including their 
failure to address the fact that a state- or district-issued variance 
has no effect on enforcing the underlying federal requirement unless 
the variance is submitted to and approved by EPA as a SIP revision. 
Therefore, the inclusion of these rules in the SIP is inconsistent with 
the Act and may be confusing to regulated industry and the general 
public.
    States and Districts can adopt various provisions describing local 
agency investigative or enforcement authority, including the authority 
to issue subpoenas such as in Rule 511.1, to demonstrate adequate 
enforcement authority under section 110(a)(2) of the Act. These rules 
should not be approved into the applicable SIP, however, to avoid 
potential conflict with EPA's independent authorities provided in CAA 
section 113, section 114 and elsewhere.

C. What are the identified rule deficiencies?

    The deficiencies listed below are some of the provisions that of 
the submitted rules that do not satisfy the requirements of section 110 
and part D of Title I of the Act and prevent full approval of the SIP 
submittals.
    We propose to disapprove the SIP revision for Rule 1610 based at 
least in part on the following deficiencies:
    1. The Section (e)(2) requirement that engines of scrapped vehicles 
be destroyed is insufficiently federally enforceable for various 
reasons.
    2. The Section (f)(2)(A) requirement that the vehicle be registered 
for two years within SCAQMD is not fully enforceable by allowing the 
Executive Officer to approve different documentation.
    3. The Section (g) requirement of a visual and functional 
inspection of the vehicle has no recordkeeping requirements.
    4. There is no recordkeeping requirement to demonstrate compliance 
with the Section (g)(1) requirement that vehicles be driven under their 
own power to the scrapping site.
    5. There is no requirement to maintain records for the life of the 
MSERCs.
    We propose to disapprove the SIP revision for Rule 2202 based at 
least in part on the following deficiencies:
    1. Per Section (f)(1), the rule relies on Regulation XVI, which is 
not currently in the SIP.
    2. Per Section (f)(3), the rule relies on AQIP (Rule 2501), which 
is not currently in the SIP.
    3. Per Section (f)(4), the rule relies on emission reduction 
strategies approved on a case-by-case basis by the Executive Officer.
    4. Per Section (g)(4), the rule relies on vehicle miles travelled 
reduction programs approved on a case-by-case basis by the Executive 
Officer.
    We propose to disapprove the SIP revision for Rules 503.1 and 504 
because they conflict with CAA sections 110(a) and (i) and fail to 
address that a state- or district-issued variance has no effect on 
enforcing the underlying federal requirement unless the variance is 
submitted to and approved by EPA as a SIP revision.

[[Page 73159]]

    We propose to disapprove the SIP revision for Rule 511.1 to avoid 
potential conflict with EPA's independent authorities provided in CAA 
section 113, section 114 and elsewhere.

D. Proposed Action and Public Comment

    As authorized in section 110(k)(3) of the Act, we are proposing 
full disapproval of the submitted SCAQMD Rules 1610, 2202, 503.1, 504, 
and 511.1. There are no sanctions or Federal Implementation Plan (FIP) 
implications should EPA finalize this disapproval. Sanctions would not 
be imposed under CAA section 179(b) because the submittal of Rules 1610 
and 2202 is discretionary (i.e., not required to be included in the 
SIP). A FIP would not be imposed under CAA section 110(c)(1) because 
the disapproval does not reveal a deficiency in the SIP that such a FIP 
must correct. Specifically: (1) Rule 1610 is voluntary and only serves 
to provide for an alternative method of compliance for stationary and 
other emission sources subject to other District regulations that allow 
the use of credits as a compliance option; and (2) Rule 2202 is not a 
required CAA submittal because the CAA gives state and local agencies 
discretion, but does not require, employers ``to implement programs to 
reduce work-related vehicle trips and miles travelled by employees'' 
(see CAA section 182(d)(1)(B)). Additionally, at this time, we have not 
credited emission reductions from Rules 1610 or 2202 in an approved SIP 
and we are not aware of a SCAQMD plan submitted to EPA that relies on 
emission reductions from these rules to fulfill a CAA requirement. 
Accordingly, the failure of the SCAQMD to adopt revisions to Rules 1610 
and 2202 would not adversely affect the SIP's compliance with the CAA's 
requirements, such as the requirements for section 182 ozone RACT, 
reasonable further progress, and attainment demonstrations. Rules 
503.1, 504 and 511.1 regulate hearing board procedures and do not 
control emission sources or otherwise generate emission reductions nor 
are they required elements of the SIP. Thus, EPA does not need to 
impose sanctions or promulgate a FIP upon their disapproval. Note that 
the submitted rules have been adopted by the SCAQMD, and a final 
disapproval by the EPA would not prevent the local agency from 
enforcing them or the revised versions of these rules subsequently 
adopted by SCAQMD as a matter of State law.
    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 (E.O.) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the E.O.

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 this 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 this proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This proposed 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. 
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.

[[Page 73160]]

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 
rules EPA is proposing to disapprove would not apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, 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 E.O. 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 E.O. has the 
potential to influence the regulation. This action is not subject to 
E.O. 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.

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 Population

    Executive Order (E.O.) 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 rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: October 30, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2015-29802 Filed 11-23-15; 8:45 am]
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