Revisions to the California State Implementation Plan, South
Coast Air Quality Management District
[Federal Register: January 4, 2006 (Volume 71, Number 2)]
[Rules and Regulations]
[Page 241-244]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja06-5]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2005-CA-0015; FRL-8010-7]
Revisions to the California State Implementation Plan, South
Coast Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing approval of a revision to the South Coast
Air Quality Management District (SCAQMD) portion of the California
State Implementation Plan (SIP). This revision was proposed in the
Federal Register on June 14, 2005 and concerns particulate matter (PM)
and ammonia emissions from fluid catalytic cracking units (FCCUs) at
oil refineries. We are approving a local rule that regulates these emission
sources under the Clean Air Act as amended in 1990 (CAA or the Act).
DATES: This rule is effective on February 3, 2006.
ADDRESSES: EPA has established docket number EPA-R09-OAR-2005-CA-0015
for this action. The index to the docket 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: Yvonne Fong, EPA Region IX, (415) 947-
4117, fong.yvonnew@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On June 14, 2005 (70 FR 34435), EPA proposed to approve the
following rule into the California SIP.
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Local agency Rule No. Rule title Adopted Submitted
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SCAQMD...... 1105.1 Reduction of PM10 and Ammonia 11/07/03 06/03/04
Emissions from Fluid
Catalytic Cracking Units.
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[[Page 242]]
We proposed to approve this rule because we determined that it
complied with the relevant CAA requirements. Our proposed action
contains more information on the rule and our evaluation.
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received comments from the following party.
1. Gregory R. McClintock, Western States Petroleum Association
(WSPA); letter dated July 14, 2005 and received July 14, 2005 by
electronic mail.
The comments and our responses are summarized below.
Comment #1: WSPA commented that sufficient opportunity for public
comment was not provided by our June 14, 2005 proposal. WSPA requested
an extension of the original 30-day public comment period and an
opportunity to consult with EPA. WSPA asserted that Sec. 6(a)(1) of
Executive Order No. 12866 provides for ``the involvement of * * * those
expected to be burdened by any regulation'' and a ``meaningful
opportunity to comment'' of no less than 60 days.
Response #1: The application of the 60-day public comment period
provision in Sec. 6(a)(1) of Executive Order No. 12866 is not
appropriate to this action because this action merely approves state
law as meeting Federal requirements and imposes no additional
requirements beyond those imposed by state law. It is also not
appropriate for EPA to invite consultation on a state law. The state,
in this case, the SCAQMD, has the authority under California Health and
Safety Code Sec. Sec. 40000 and 40001 to adopt rules and regulations
to achieve and maintain the federal ambient air quality standards.
Furthermore, the SCAQMD satisfied the ``meaningful opportunity to
comment'' intent of Executive Order 12866 during its rulemaking
process. When the SCAQMD began developing Rule 1105.1 in January 2002,
it ensured significant participation from industry through the
establishment and meetings of the Refinery Working Group. The rule was
ultimately made available to the public and other interested parties on
September 2, 2003, more than 60 days in advance of the November 7, 2003
Board Hearing to adopt Rule 1105.1. WSPA has been actively litigating
the regulation of oil refineries with the SCAQMD and should not have
required more than the standard 30-day comment period EPA makes
available for this type of rulemaking action to submit comments to us
on this rule.
Comment #2: WSPA commented that Rule 1105.1 is currently being
litigated in the Second District Court of Appeal for the State of
California. WSPA anticipates that Rule 1105.1 will be vacated by the
Court on the grounds that compliance with the rule is unachievable,
that a more viable option for regulating this source category exists,
and that the requirements of California Health and Safety Code
Sec. Sec. 40440(b)(1), 40405, 40406; Civil Code Sec. 3531 have
ultimately not been met. WSPA contends that EPA approval of Rule 1105.1
into the SIP at this time would interfere with the State Court of
Appeal's jurisdiction and implicate the issues of federalism set forth
in Executive Order No. 13132, thereby also requiring Agency submission
of a federalism summary impact statement to the Director of the Office
of Management and Budget (OMB).
Response #2: EPA believes that it is inappropriate to disapprove or
delay approval of a SIP revision merely on the basis of pending state
court challenges. To do so would allow parties to impede SIP
development merely by initiating litigation. Alternatively, were EPA
required to assess the validity of a litigant's state law claims in the
SIP approval process, EPA would have to act like a state court, in
effect weighing the competing claims of a state and a litigant.
Therefore, EPA does not interpret CAA section 110(a)(2) to require the
Agency to make such judgments in the SIP approval process, especially
where the validity of those challenges turns upon issues of state law.
Moreover, EPA believes that the structure of the CAA provides
appropriate mechanisms for litigants to pursue their claims and
appropriate remedies in the event that they are ultimately successful.
See Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153
(7th Cir. 1983) (State court invalidation of a SIP provision resulted
in an unenforceable SIP provision which the state had to reenact or
which EPA may use as the basis for a SIP call).
With regard to the possibility of a more viable option for
regulating the FCCUs covered by Rule 1105.1, EPA is prohibited by CAA
section 110(a)(2) from considering the economic or technological
feasibility of the provisions of rules submitted for approval as a SIP
revision. Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976). As
noted by the Supreme Court, it is the province of state and local
authorities to determine whether or not to impose limits that may
require technology forcing measures. EPA must assess the SIP revision
on the basis of the factors set forth in CAA section 110(a)(2) which do
not provide for the disapproval of a rule into a SIP based upon
economic or technological infeasibility.
EPA's action does not interfere with the State Court of Appeal's
jurisdiction or implicate the issues of federalism set forth in
Executive Order No. 13132 because, as discussed above, this action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Federalism, as defined in Sec. 2(a) of Executive Order No. 13132, ``is
rooted in the belief that issues that are not national in scope or
significance are most appropriately addressed by the level of
government closest to the people.'' With this action, EPA is affirming
the states' ``unique authorities, qualities, and abilities to meet the
needs of the people'' and is deferring to the state's ``policymaking
discretion'' to adopt rules and regulations to achieve and maintain the
federal ambient air quality standards. This action does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. See, Executive Order No. 13132
Sec. Sec. 2(e) and 2(i). Agency submission of a federalism summary
impact statement to the Director of OMB is, therefore, not necessary or
appropriate.
Comment #3: WSPA refuted the Agency's determination that the
completeness criteria in 40 CFR part 51 Appendix V have been met
because Sec. 2.1(c) of Appendix V requires that the state have ``the
necessary legal authority under State law to adopt and implement the
plan.'' As discussed in Comment #2, WSPA claims the state does
not have the authority to adopt and implement Rule 1105.1 because it
did not satisfy the California Health and Safety Code Sec. Sec.
40440(b)(1), 40405, 40406; Civil Code Sec. 3531 requirement of
achievable compliance. WSPA also contends that the state submittal of
Rule 1105.1 is not complete because SCAQMD failed to meet recordkeeping
requirements in Sec. 40728 of the California Health and Safety Code
and other procedural requirements of the California Environmental
Quality Act (CEQA).
Response #3: As stated in Responses #1 and #2
above, the SCAQMD has authority under California Health and Safety Code
Sec. Sec. 40000 and 40001 to adopt rules and regulations to achieve
and maintain the federal ambient air quality standards and, pursuant to
Agency interpretation of CAA section 110(a)(2), EPA cannot delay the
SIP development process by awaiting the Second District Court of Appeal's
[[Page 243]]
judgment on this issue. With their submission of Rule 1105.1, SCAQMD
and CARB attested that Rule 1105.1 meets the requirements in the
California Health and Safety Code and CEQA. EPA generally defers to the
state and local agencies in their interpretation of state requirements.
The lower Court upheld the state and local agencies' submission of Rule
1105.1 as meeting those requirements and we see no obvious reasons to
question the state and local agencies' determination that Rule 1105.1
complies with the applicable state requirements.
Comment #4: WSPA postulated that implementation of the requirements
contained in Rule 1105.1 would result in more frequent maintenance and
shutdowns of FCCUs. WSPA, therefore, asserted that approval of Rule
1105.1 into the SIP should be considered a ``significant regulatory
action'' within the meaning of Sec. 3(f)(1) of Executive Order No.
12866 and a ``significant energy action'' within the meaning of Sec.
4(b)(1)(ii) of Executive Order No. 13211 because the rule would
interfere with the supply of gasoline and other petroleum products,
increase the cost of these products, and adversely affect competition,
productivity and job availability at refineries. Furthermore, as a
``significant regulatory action'' and ``significant energy action,''
EPA should submit additional information, including a ``Statement of
Energy Effects,'' and obtain approval from the Office of Information
and Regulatory Affairs (OIRA) pursuant to Sec. Sec. 6(a)(3)(B)-(C) and
8 of Executive Order No. 12866 and Sec. 3 of Executive Order No. 13211.
Response #4: As discussed in Response #1, this action does
not impose any additional requirements beyond those imposed by state
law because it merely approves state law as meeting Federal
requirements. Approval of Rule 1105.1 into the SIP does not create any
added Federal requirements. Executive Order Nos. 12866 and 131211, are
applicable Federal agencies, not States; therefore, the requirements to
submit additional documents to and obtain approval from OIRA are not
germane to this action.
Comment #5: WSPA commented that Rule 1105.1 is not enforceable as
asserted in our June 14, 2005 proposed rulemaking because compliance
with the requirements of Rule 1105.1 are unachievable. WSPA claimed
that the proposed rule failed to address what is meant by enforceable.
Response #5: The feasibility of rules submitted for approval as a
SIP revision is discussed in Response #2 and is not germane to
CAA enforceability requirements. EPA maintains, as stated in our
proposed rulemaking, that Rule 1105.1 is enforceable and that the
criteria upon which this enforceability determination were made are
clearly outlined under the section entitled ``How is EPA Evaluating the
Rule'' at 70 FR 34436.
Comment #6: WSPA commented that the requirements of Rule 1105.1
rely on incorrect expectations regarding the availability, efficacy,
and reliability of various control technologies, including dry and wet
ESPs, wet gas scrubbers, sulfur oxide reducing agents, and selective
catalytic and non-catalytic reduction.
Response #6: See the discussion in Response #2 regarding
the economic or technological feasibility of provisions of rules
submitted for approval as a SIP revision.
III. EPA Action
No comments were submitted that change our assessment that the
submitted rule complies with the relevant CAA requirements. Therefore,
as authorized in section 110(k)(3) of the Act, EPA is fully approving
this rule into the California SIP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175
(59 FR 22951, November 9, 2000). This action also does not have Federalism
implications because it does 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
(64 FR 43255, August 10, 1999). This action merely approves 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. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. 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.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 6, 2006.
[[Page 244]]
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this rule for the purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate Matter,
Reporting and recordkeeping requirements.
Dated: December 5, 2005.
Wayne Nastri,
Regional Administrator, Region IX.
? Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
? 1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
? 2. Section 52.220 is amended by adding paragraphs (c)(331) (i)(B)(2) to
read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(331) * * *
(i) * * *
(B) * * *
(2) Rule 1105.1, adopted on November 7, 2003.
* * * * *
[FR Doc. 06-56 Filed 1-3-06; 8:45 am]
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