[Federal Register: November 20, 2002 (Volume 67, Number 224)]
[Proposed Rules]
[Page 70032-70036]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no02-21]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 242-0328; FRL-7410-8]
Revisions to the California State Implementation Plan, Imperial
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 to
a revision to the Imperial County Air Pollution Control District
(ICAPCD) portion of the California State Implementation Plan (SIP)
concerning particulate matter (PM-10) emissions from emission units,
electrical generation units, and fuel burning equipment. We are also
proposing to approve a revision to the ICAPCD portion of the California
SIP concerning oxides of nitrogen (NOX) emissions from fuel
burning equipment. 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 December 20, 2002.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection
[[Page 70033]]
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.
You can inspect copies of the submitted rule revisions and EPA's
technical support documents (TSDs) at our Region IX office during
normal business hours. You may also see copies of the submitted rule
revisions at the following locations:
Air and Radiation Docket and Information Center (6102T), U.S.
Environmental Protection Agency, Room B-102, 1301 Constitution
Avenue, NW., Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Imperial County Air Pollution Control District, 150 South 9th
Street, El Centro, CA 92243.
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: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.
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 are the changes in 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 rule deficiencies?
D. Proposed action and public comment
III. Background Information
A. Why were these rules submitted?
IV. Administrative Requirements
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 local air agencies 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
----------------------------------------------------------------------------------------------------------------
ICAPCD................................. 403 General Limitations on the 07/24/01 10/30/01
Discharge of Air Contaminants.
ICAPCD................................. 400 Fuel Burning Equipment--Oxides of 09/14/99 05/26/00
Nitrogen.
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On January 18, 2002 and October 6, 2000, respectively, these rule
submittals were found to meet the completeness criteria in 40 CFR part
51 Appendix V, which must be met before formal EPA review.
B. Are There Other Versions of These Rules?
We approved versions of Rule 403 into the SIP on May 31, 1972 (37
FR 10842) as Rule 131, on February 3, 1989 (54 FR 5448) as Rule 403,
and on January 27, 1981 (46 FR 8471) as Rules 404 and 406. We approved
a version of Rule 400 into the SIP on May 31, 1972 (37 FR 10842) as
Rule 131.
C. What Are the Changes in the Submitted Rules?
The significant changes to SIP Rule 131 are as follows:
[sbull] The limitation to not emit more than 200 pounds per hour of
sulfur dioxide was moved to submitted Rule 405.B.4.a.2, which was
approved by EPA on February 7, 2002 (67 FR 5727).
[sbull] The limitation to not emit more than 10 pounds per hour of
combustion contaminants from fuel burning equipment was moved to
submitted Rule 403.B.5.
[sbull] The limitation to not emit more than 140 pounds per hour of
nitrogen oxides (NO2) was moved to submitted Rule 400.B.
SIP Rule 404 would be superseded by submitted Rule 403.B.1. SIP
Rule 406 would be superseded by submitted Rule 403.B.3.
Additional changes in submitted Rule 403 relative to all of the SIP
rules are as follows:
[sbull] 403.B.1: The limitation on the mass discharge of
particulate matter from emission units was made more stringent.
[sbull] 403.B.2: A limitation on the discharge concentration of air
contaminants from emission units was added.
[sbull] 403.B.4: A very stringent limitation on the discharge
concentration of combustion contaminants from electrical utility
generating units was added.
[sbull] 403.C: Compliance test methods were added.
An additional change in submitted Rule 400 relative to SIP Rule 131
is as follows:
[sbull] 400.C: Compliance test methods, monitoring requirements,
and a records retention period were added.
The TSDs have more information about these rules.
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rules?
Generally, PM-10 SIP rules must be enforceable (see section 110(a)
of the Act) and must not relax existing requirements (see sections
110(l) and 193).Sections 172(c)(1) and 189(a) of the CAA require
moderate PM-10 nonattainment areas with significant PM-10 sources to
adopt reasonably available control measures (RACM), including
reasonably available control technology (RACT). RACM/RACT is not
required for source categories that are not significant (de minimis)
and do not have major sources. See Addendum to the General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990,
59 FR 41998 (August 16, 1994). Based on the latest emissions inventory
data contained in Imperial County PM-10 State Implementation Plan
Attainment Demonstration, Draft Report (July 2001), Imperial County has
at least three major PM sources: Santa Fe Pacific Gold Corp (541 tpy),
U.S. Gypsum (Plaster City) (156 tpy), and American Girl Mine (136 tpy).
Therefore, we conclude that submitted rule 403 must meet RACT in the
absence of a demonstration by the State that these major sources do not
contribute significantly to PM-10 levels which exceed the PM-10 NAAQS
in the area. We also note that ICAPCD's Draft Report, which formed a
basis for our 2001 attainment finding, refers to Rule 403 as one of the
controls that should be considered RACT for stationary sources in
Imperial County (see pages 37-38 of that report).
Generally, NOX SIP rules must be enforceable (see
section 110(a) of the Act), must require Reasonably Available Control
Technology (RACT) for major sources in ozone nonattainment areas (see
sections 182(a)(2)(A) and 182(f)), and must not relax existing
requirements (see sections 110(l) and 193). However, the ICAPCD
regulates a section 185A transitional ozone nonattainment area (see 40
CFR 81.305). Section 185A of the Act exempts transitional areas from
all subpart 2
[[Page 70034]]
requirements until December 31, 1991, and that exemption continues
until EPA redesignates the area as attainment or designates the area as
nonattainment under section 107(d)(4). See 57 FR 13498, at 13525 (April
16, 1992). Submitted Rule 400 improves upon the SIP by adding test
methods, monitoring requirements, and a record retention period, all of
which improve the practical enforceability of the NOX
emissions limits contained in the rule.
Guidance and policy documents that we used to define specific
enforceability and RACM/RACT requirements include the following:
[sbull] Requirements for Preparation, Adoption, and Submittal of
Implementation Plans, U.S. EPA, 40 CFR part 51.
[sbull] General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990, 57 FR 13498, 13540 (April 16, 1992).
[sbull] Addendum to the General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990, 59 FR 41998 (August
16, 1994).
[sbull] PM-10 Guideline Document (EPA-452/R-93-008).
[sbull] Imperial County PM-10 State Implementation Plan Attainment
Demonstration, Draft Report (July 2001).
[sbull] State Implementation Plans (SIPs): Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown, Steven A. Herman,
memorandum (September 20, 1999).
[sbull] 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.
[sbull] State Implementation Plans; Nitrogen Oxides Supplement to
the General Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990 (the ``NOX Supplement to the General
Preamble''), U.S. EPA, 57 FR 55620 (November 25, 1992).
B. Do the Rules Meet the Evaluation Criteria?
Rule 403 improves the SIP by establishing more stringent PM-10
emission limits and by adding test methods. This rule is largely
consistent with the relevant policy and guidance regarding
enforceability, RACT and SIP relaxations. Rule provisions which do not
meet the evaluation criteria are summarized below and discussed further
in the TSD.
Rule 400 improves the SIP by adding test methods, monitoring
requirements, and a record retention period, all of which improve the
practical enforceability of the NOX emissions limits
contained in the rule. This rule is consistent with the relevent policy
regarding enforceability, RACT, and SIP relaxations. These issues are
discussed further in the TSD.
C. What Are the Rule Deficiencies?
The following are deficiencies that preclude full approval:
[sbull] Rule 403 should have monitoring and recordkeeping
requirements in order to assure compliance with PM emission standards.
[sbull] Rule 403 should have some limitation on the period or
conditions allowed for the exemption from PM emission standards during
start-up and load changes.
D. 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 submitted ICAPCD Rule 403 to improve
the SIP. If finalized, this action would incorporate the submitted rule
into the SIP, including those provisions identified as deficient. This
approval is limited because EPA is simultaneously proposing a limited
disapproval of the rule under section 110(k)(3). If this disapproval is
finalized, sanctions will be imposed under section 179 of the Act
unless EPA approves subsequent SIP revisions that correct the rule
deficiencies within 18 months. These sanctions would be imposed
according to 40 CFR 52.31. A final disapproval would also trigger the
federal implementation plan (FIP) requirement under section 110(c).
Note that the submitted rule has been adopted by the ICAPCD, and EPA's
final limited disapproval would not prevent the local agency from
enforcing it.
We are proposing full approval of submitted ICAPCD Rule 400 because
we believe it fulfills all relevant requirements. We will accept
comments from the public on the proposed limited approval/limited
disapproval of ICAPCD Rule 403 and proposed full approval of ICAPCD
Rule 400 for the next 30 days.
III. Background Information
A. Why Were These Rules Submitted?
PM-10 harms human health and the environment. Section 110(a) of the
CAA requires states to submit regulations that control PM-10 emissions.
Table 2 lists some of the national milestones leading to the submittal
of local agency PM-10 rules.
Table 2.--PM-10 Nonattainment Milestones
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Date Event
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March 3, 1978.......................... EPA promulgated a list of total
suspended particulate (TSP)
nonattainment areas under the
Clean Air Act, as amended in
1977. 43 FR 8962; 40 CFR
81.305.
July 1, 1987........................... EPA replaced the TSP standards
with new PM standards applying
only up to 10 microns in
diameter (PM-10). 52 FR 24672.
November 15, 1990...................... Clean Air Act Amendments of
1990 were enacted, Pub. L. 101-
549, 104 Stat. 2399, codified
at 42 U.S.C. 7401-7671q.
November 15, 1990...................... PM-10 areas meeting the
qualifications of section
107(d)(4)(B) of the CAA were
designated nonattainment by
operation of law and
classified as moderate
pursuant to section 188(a).
States are required by section
110(a) to submit rules
regulating PM-10 emissions in
order to achieve the
attainment dates specified in
section 188(c).
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NOX helps produce ground-level nitrogen dioxide, 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. Table 3 lists some
of the national milestones leading to the submittal of these local
agency NOX rules.
Table 3.--Ozone Nonattainment Milestones
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Date Event
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March 3, 1978.......................... EPA promulgated a list of ozone
nonattainment areas under the
Clean Air Act as amended in
1977. 43 FR 8962; 40 CFR
81.305.
May 26, 1988........................... EPA notified Governors that
parts of their SIPs were
inadequate to attain and
maintain the ozone standard
and requested that they
correct the deficiencies
(EPA's SIP- Call). See section
110(a)(2)(H) of the pre-
amended Act.
November 15, 1990...................... Clean Air Act Amendments of
1990 were enacted. Pub. L. 101-
549, 104 Stat. 2399, codified
at 42 U.S.C. 7401-7671q.
[[Page 70035]]
May 15, 1991........................... Section 182(a)(2)(A) requires
that ozone nonattainment areas
correct deficient RACT rules
by this date.
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IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, Regulatory Planning and Review.
B. Executive Order 13211
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001))
because it is not a significant regulatory action under Executive Order
12866.
C. Executive Order 13045
Executive Order 13045, entitled 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 rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13132
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 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 acts on 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
proposed rule.
E. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 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.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. 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, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule. In the spirit
of Executive Order 13175, and consistent with EPA policy to promote
communications between EPA and tribal governments, EPA specifically
solicits additional comment on this proposed rule from tribal
officials.
F. 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 approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply act on requirements that the State is
already imposing. Therefore, because the Federal SIP approval 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.
EPA's proposed disapproval of the state request under section 110
and subchapter I, part D of the Clean Air Act does not affect any
existing requirements applicable to small entities. Any pre-existing
federal requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect state
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, 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).
G. Unfunded Mandates
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
[[Page 70036]]
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 proposed 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 proposed Federal action acts on 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.
H. 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.
EPA believes that VCS are inapplicable to today's proposed action
because it 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 oxides, Ozone, Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 29, 2002.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 02-29477 Filed 11-19-02; 8:45 am]
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