[Federal Register: June 1, 2004 (Volume 69, Number 105)]
[Proposed Rules]
[Page 30845-30847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn04-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA250-0453; FRL-7668-3]
Disapproval of 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 (MBUAPCD) portion of the
California State Implementation Plan (SIP) concerning excess emissions
during breakdown. We are proposing action on a local rule that
regulates these emissions 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 July 1, 2004.
ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief
(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105 or e-mail to
steckel.andrew@epa.gov, or submit comments at http://www.regulations.gov.
You can inspect copies of the submitted rule revisions, EPA's
technical support document (TSD), and public comments at our Region IX
office during normal business hours by appointment. You may also see
copies of the submitted rule revisions by appointment at the following
locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud
Court, Monterey, CA 93940.
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 Web site and may not contain the same version of the rule that
was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, EPA Region IX,
(415) 947-4121, canaday.tom@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 Are the Changes in the Submitted Rule?
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rule?
B. Does the Rule Meet the Evaluation Criteria?
C. 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
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Local agency Rule No. Rule title Adopted Submitted
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MBUAPCD............................... 214 Breakdown Condition........... 03/21/01 10/30/01
----------------------------------------------------------------------------------------------------------------
On January 18, 2002, we determined that the rule submittal in Table
1 met the completeness criteria in 40 CFR part 51, appendix V, which
must be met before formal EPA review.
B. Are There Other Versions of This Rule?
We approved a version of MBUAPCD Rule 214 into the SIP on July 13,
1987.
C. What Are the Changes in the Submitted Rule?
Rule 214 establishes that MBUAPCD may elect to take no enforcement
action against an owner or operator of any equipment which has violated
an emission standard or operational requirement provided that a
breakdown has occurred and certain other conditions are met. The
submitted revisions to MBUAPCD Rule 214 modify the rule's format and
add clarifying language. The TSD has more information about this 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), must require Reasonably Available Control Technology (RACT) for
major sources in nonattainment areas (see section 182(a)(2)(A)), and
must not relax existing requirements (see sections 110(l) and 193).
Guidance and policy documents that we used to help evaluate
specific enforceability requirements consistently include the
following:
1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook).
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``State Implementation Plans: Policy Regarding Excess Emissions
During Malfunctions, Startup and Shutdown,'' EPA Office of Air and
[[Page 30846]]
Radiation, and EPA Office of Enforcement and Compliance Assurance,
September 20, 1999 (``Excess Emissions Policy'').
4. ``Guidelines for Including State and Local Rules in SIPs,'' EPA
Region IX, December 17, 1998. These guidelines were transmitted to the
California Air Resources Board in a letter dated December 23, 1998,
from David P. Howekamp, Director, Air Division, EPA Region IX, to
Michael Kenny, Executive Officer, California Air Resources Board.
B. Does the Rule Meet the Evaluation Criteria?
The submitted SIP revisions conflict with section 110 and part D of
the Act for the following reason. MBUAPCD Rule 214 describes how the
district intends to apply its enforcement discretion in instances where
facilities exceed emissions limits due to breakdown. As stated in EPA's
Excess Emissions Policy, a State or EPA may exercise its enforcement
discretion to refrain from taking an enforcement action where excess
emissions result from sudden and unavoidable malfunctions caused by
circumstances entirely beyond the control of the owner or operator.
However, the September 20, 1999 policy also makes clear that EPA will
not approve SIP revisions that allow a State director's decision to bar
EPA's or citizens' ability to take enforcement action. Accordingly,
were EPA to approve an enforcement discretion rule such as Rule 214, we
would do so only while making clear that such action had no effect on
EPA's or citizens' enforcement prerogatives. Under these circumstances,
such a SIP revision would have no effect on the SIP. For this reason
EPA considers it unproductive and potentially confusing to approve this
enforcement discretion rule into the SIP.
C. 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 214. This is not a required
SIP submittal, so this disapproval would have no sanction implications
under CAA section 179 or FIP implications under CAA 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
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 rulemaking 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 rulemaking action 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 but simply disapprove for inclusion in the SIP
requirements that the State is already imposing. 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 section 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
Executive Order 13132, entitled ``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 rulemaking action 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
[[Page 30847]]
section 6 of the Executive Order do not apply to this rulemaking.
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 rule
disapproval 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 disapproval.
EPA specifically solicits additional comment on this proposed rule
disapproval from tribal officials.
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 rulemaking on children, and explain why the planned action is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rulemaking 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 rulemaking 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, Ozone, Reporting and recordkeeping requirements, Volatile
organic compound.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 19, 2004.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 04-12303 Filed 5-28-04; 8:45 am]
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