[Federal Register: September 29, 2003 (Volume 68, Number 188)]
[Proposed Rules]
[Page 55917-55920]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se03-40]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA255-0413; FRL-7564-7]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove revisions to the San Joaquin
Valley Unified Air Pollution Control District's (SJVUAPCD) portion of
the California State Implementation Plan (SIP). These revisions concern
visible emissions (VE) from many different sources of air pollution. We
are proposing to disapprove SJVUAPCD Rule 4101, a local rule regulating
VE, 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. Previously, EPA proposed to approve Rule 4101.
DATEs: Any comments must arrive by October 29, 2003.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901 or e-mail to steckel.andrew@epa.gov.
You can inspect copies of the submitted SIP revisions and the
administrative record for EPA's previous proposal at our Region IX
office during normal business hours. You may also see copies of the
submitted SIP revisions at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814; and,
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726.
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 website and may not contain the same version of the rule that
was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1226, or via e-mail at wamsley.jerry@epa.gov.
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. Our Prior Proposed Action, Public Comments, and EPA Response.
III. 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's deficiencies?
D. EPA recommendations to further improve the rule.
E. Proposed action and public comment.
IV. Statutory and Executive Order Reviews.
I. The State's Submittal
A. What Rule Did the State Submit?
Table 1 lists the rule addressed by this proposal with the dates
that it was adopted by the SJVUAPCD and submitted by the California Air
Resources Board (CARB).
Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Local agency Rule No. Rule title Adopted Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD................................. 4101 Visible Emissions.......... 11/15/01 12/06/01
----------------------------------------------------------------------------------------------------------------
On January 22, 2002, EPA found this rule submittal met the
completeness criteria in 40 CFR part 51 appendix V.
B. Are There Other Versions of the Rule?
Prior to the SJVUAPCD's formation, eight county-wide air pollution
control districts (APCDs) in San Joaquin, Stanislaus, Merced, Madera,
Fresno, Kings, Tulare, and Kern counties regulated air pollution in
California's San Joaquin Valley. In almost all cases, EPA approved and
incorporated into the Federal SIP versions of these individual county
rules: Rule 401--Visible Emission, Rule 402--Exemptions, and Rule 403--
Wet Plumes. Please see the Technical Support Document (TSD) for our
previous rulemaking proposal on Rule 4101 for a table of these local
rule adoptions and SIP approval dates. On
[[Page 55918]]
December 17, 1992, SJVUAPCD adopted Rule 4101 to consolidate and
supercede these individual county VE and related rules.
EPA has received two prior versions of Rule 4101. SJVUAPCD adopted
the first version on December 17, 1992, and CARB submitted the rule to
EPA on September 28, 1994. SJVUAPCD adopted the second version on June
21, 2001, and CARB submitted the rule to EPA on October 30, 2001.
However, EPA has not acted on these versions of Rule 4101. While we can
act on only the most recently submitted version listed in Table 1, we
have reviewed material provided with these previous submittals.
C. What Is the Purpose of the Submitted Rule Revision?
Visible emission rules with opacity standards are basic components
of air quality regulatory programs. Rule 4101 prohibits air pollution
that results in greater than 20% opacity. The TSD associated with our
prior proposal has more information about Rule 4101 and the county-
level rules it replaces.
II. Our Previous Proposed Action, Public Comments, & EPA Responses
On June 10, 2002 (67 FR 39659), EPA proposed to approve Rule 4101
based on an initial assessment that the Rule improved the SIP and was
consistent with relevant CAA requirements. For the reasons discussed
below, EPA does not intend to take final action on this proposal.
During the comment period for this proposed approval, we received
comments from Brent Newell, Center on Race, Poverty, and the
Environment, on behalf of El Comite para el Bienestar de Earlimart and
the Association of Irritated Residents. We have summarized these
comments and provided our responses below.
Comment #1: EPA did not determine whether Rule 4101 implements Best
Available Control Measures (BACM), as required by CAA section 189(b)
for serious PM-10 nonattainment areas such as SJVUAPCD. The proposed
full approval determines that the rule provides Reasonably Available
Control Measures (RACM), but neither mentions BACM, nor determines that
a 20% opacity threshold fulfills BACM.
Response #1: EPA concurs that BACM under CAA section 189(b) as well
as RACM under CAA section 189(a) must be implemented in the San Joaquin
Valley PM-10 nonattainment area. EPA has approved general 20% opacity
rules in other serious PM-10 nonattainment areas, and does not believe
a more stringent general limit is required in Rule 4101 to meet the
Act's BACM requirement. See, for example, South Coast Air Quality
Management District Rule 401, Great Basin Air Pollution Control
District Rule 400, Clark County Air Quality Management Board Rule 26
and Washoe County District Health Department Air Quality Management
Division Rule 040.005.
Comment #2: Section 4.4 of Rule 4101 exempts agricultural sources
from the 20% opacity requirement. On-field farming operations accounted
for 111 tons per day of PM-10 emissions in 2000, 23% of the air basin's
total inventory. By exempting such significant emissions, Rule 4101
meets neither RACM, nor BACM requirements.
Response #2: Twenty percent opacity is reasonably available for
most or all common industrial sources, as shown by the many Districts
in California and many states across the country (e.g., Michigan (see
Michigan Administrative Code Rule 336.1301), New Mexico (see New Mexico
Administrative Code at Title 20-2-61), Texas (see Texas Administrative
Code at Title 30, Part 1-111.111), and Washington (see Washington
Administrative Code at Title 173-400-040) that apply a general 20%
opacity requirement. It may be possible to demonstrate that higher,
lower, or different forms of opacity standards are appropriate RACM and
BACM for a specific source. Nonetheless, we concur with the comment
that it is inappropriate to exempt broadly the entire agricultural
industry from opacity requirements without an analysis of what types of
sources are affected and why a 20% opacity requirement is
inappropriate. For example, internal combustion engines used by public
utilities and excavation industries in San Joaquin are subject to the
20% opacity requirement, while internal combustion engines used for
agricultural irrigation are not.
Comment #3: Section 4.11 exempts sources subject to or specifically
exempted by Regulation VIII from Rule 4101. The comment references
concerns provided previously about agricultural exemptions in
Regulation VIII.
Response #3: We believe Rule 4101 would be improved by providing an
itemized list of exempt activities in the rule instead of the current
general reference to Regulation VIII. However, we do not object to the
overall concept of applying BACM-level opacity requirements to some
sources via Rule 4101, and other sources via Regulation VIII. A similar
structure exists for SJVUAPCD Rule 4661, which establishes general
requirements for organic solvents, but exempts those sources regulated
by industry-specific rules.
III. 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 meet appropriate requirements for nonattainment areas (see
section 189), and must not relax existing requirements (see sections
110(l) and 193). The SJVUAPCD regulates a serious PM-10 nonattainment
area (see 40 CFR part 81), so Rule 4101 must meet both CAA RACM and
BACM requirements.
Guidance and policy documents that we used to define these
requirements include the following:
1. Portions of the proposed post-1987 ozone and carbon monoxide
policy that concern RACT, 52 FR 45044, (November 24, 1987).
2. ``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.
3. ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990,'' at 57 FR 13540-13541, April 16,
1992.
4. ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990,'' at 59 FR 42008-42015, August 16,
1994.
B. Does the Rule Meet the Evaluation Criteria?
Consolidation of county-specific requirements into Rule 4101
clarifies VE and related requirements within the San Joaquin
nonattainment area. However, while the Rule is consistent, in part,
with the relevant federal policy and requirements, there are rule
provisions which do not meet the evaluation criteria.
C. What Are the Rule's Deficiencies?
Certain provisions of Rule 4101 conflict with section 110 and part
D of the Act and prevent full approval of the SIP revision. These
deficiencies are discussed below.
1. Section 4.4 is inconsistent with the CAA section 189 RACM and
BACM requirements. Its general exemption for agricultural sources
should be either deleted altogether, or significantly narrowed in scope
and justified.
2. Section 4.10 references California Health and Safety Code (HSC)
section 41701. This reference has not been submitted to EPA for
incorporation into the applicable SIP, thus it undermines
[[Page 55919]]
the clarity and enforceability of the rule and is inconsistent with CAA
section 110(a), (i) and (l). SJVUAPCD should do one of three things,
remove the exemption, submit the referenced HSC section, or insert
specific text from the HSC into Rule 4101. Note that EPA has not
reviewed the substance of the HSC.
D. EPA Recommendations To Further Improve the Rule
We have no recommended rule revisions that do not affect EPA's
current action.
E. Proposed Action and Public Comment
For the reasons described in section III above and as authorized in
section 110(k)(3) of the Act, we are proposing to disapprove SJVUAPCD
Rule 4101. If finalized, this action would retain the existing
individual county rules within the SIP. Unless EPA approves subsequent
SIP revisions correcting the rule's deficiencies within 18 months,
sanctions would be imposed according to CAA section 179 and 40 CFR
52.30-32. Our final disapproval would also trigger the FIP requirement
under section 110(c).
We will accept comments from the public on this proposed
disapproval for the next 30 days.
IV. 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 rule 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 proposed rule 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. 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 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 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
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 proposed rule 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 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.'' This proposed rule 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.
EPA specifically solicits additional comment on this proposed rule
from tribal officials.
[[Page 55920]]
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 rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This proposed rule 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 rule 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, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 8, 2003.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 03-24558 Filed 9-26-03; 8:45 am]
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