[Federal Register Volume 74, Number 159 (Wednesday, August 19, 2009)]
[Proposed Rules]
[Pages 41826-41829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19856]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0024; FRL-8943-7]
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 a limited approval and limited disapproval of
revisions to the San Joaquin Valley Unified Air Pollution Control
District portion of the California State Implementation Plan. These
revisions concern a local fee rule that applies to major sources of
volatile organic compound and nitrogen oxide emissions within the San
Joaquin Valley ozone nonattainment area. We are proposing action on a
local rule that regulates these emission sources under the Clean Air
Act as amended in 1990. We are taking comments on this proposal and
plan to follow with a final action.
DATES: Any comments must arrive by September 18, 2009.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0024, by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: [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 http://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 http://www.regulations.gov or e-mail. http://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 e-mail directly to EPA, your e-mail 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.
Docket: The index to the docket for this action 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: Mae Wang, EPA Region IX, (415) 947-
4124, [email protected].
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. What Is the Purpose of the Submitted Rule?
C. Why Was This Rule Submitted?
II. 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 Deficiencies?
D. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What Rule Did the State Submit?
The San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD) adopted Rule 3170, Federally Mandated Ozone Nonattainment
Fee, on May 16, 2002. This rule was submitted by the California Air
Resources Board (CARB) on August 6, 2002, for incorporation into the
California State Implementation Plan (SIP). On August 30, 2002, this
rule submittal was found to meet the completeness criteria in 40 CFR
Part 51, Appendix V.
B. What Is the Purpose of the Submitted Rule?
SJVUAPCD Rule 3170 requires certain major stationary sources of
volatile organic compounds (VOCs) and nitrogen oxides (NOX)
in the San Joaquin Valley ozone nonattainment area to pay a fee to the
SJVUAPCD if the area fails to attain the 1-hour national ambient air
quality standard (NAAQS) for ozone by its Federally established
attainment date. The fee must be paid for each calendar year after the
attainment year until the area is redesignated to attainment of the 1-
hour ozone standard.
C. Why Was This Rule Submitted?
Under sections 182(d)(3), (e), and 185 of the Clean Air Act as
amended in 1990 (CAA or the Act), States are required to adopt an
excess emissions fee regulation for ozone nonattainment areas
classified as severe or extreme. The 1-hour ozone NAAQS classification
for the San Joaquin Valley area is extreme (see 69 FR 20550, April 16,
2004). Although EPA has revoked the 1-hour ozone NAAQS (69 FR 23951,
April 30, 2004), Section 185 requirements still apply for 1-hour ozone
non-attainment areas (South Coast Air Quality Management District v.
EPA, 472 F.3d 882, DC Cir. 2006). The fee regulation specified by the
Act requires major stationary sources of VOCs in the nonattainment area
to pay a fee to the State if the area fails to attain the standard by
the attainment date set forth in the Act. Section 182(f) of the Act
requires States to apply the same requirements to major stationary
sources of NOX as are applied to major stationary sources of
VOCs. Emissions of VOCs and NOX play a role in producing
ground-level ozone and smog, which harm human health and the
environment. SJVUAPCD Rule 3170 applies to major sources of both
NOX and VOCs.
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), and must not relax existing requirements (see sections 110(l) and
193). Rule 3170 was evaluated for compliance with the requirements in
CAA section 185. The rule was also
[[Page 41827]]
evaluated for consistency with the CAA and EPA's general SIP policies,
as well as a March 21, 2008, memorandum from William Harnett, Director
of the Air Quality Policy Division, to the Regional Air Division
Directors, entitled, ``Guidance on Establishing Emissions Baselines
under Section 185 of the Clean Air Act (CAA) for Severe and Extreme
Ozone Nonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS by
their Attainment Date.'' Guidance and policy documents that we use to
help evaluate specific enforceability requirements typically 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; Nitrogen Oxides Supplement to the
General Preamble; Clean Air Act Amendments of 1990 Implementation of
Title I; Proposed Rule'', (the NOX Supplement), 57 FR 55620,
November 25, 1992.
B. Does the Rule Meet the Evaluation Criteria?
Rule 3170 improves the SIP by establishing an excess emissions fee
regulation. Portions of the rule are consistent with the CAA, as well
as relevant policy and guidance regarding enforceability and SIP
relaxations. Rule provisions which do not meet the evaluation criteria
are summarized below.
C. What Are the Rule Deficiencies?
The following provisions conflict with section 185 of the Act and
prevent full approval of the SIP revision:
Section 4.2 of SJVUAPCD Rule 3170 exempts units that begin
operation after the attainment year. CAA Section 185 does not provide
for an exemption for emission units that begin operation after the
attainment year, so this exemption does not fully comply with the CAA.
Rather, it requires ``each major source'' to pay the fee. See CAA
section 185(a).
Section 4.3 exempts any ``clean emission unit'' from the
requirements of the rule. Section 3.6 defines a clean emission unit as
a unit that is equipped with an emissions control technology that
either has a minimum 95% control efficiency (or 85% for lean-burn
internal combustion engines), or meets the requirements for achieved-
in-practice Best Achievable Control Technology as accepted by the APCO
during the 5 years immediately prior to the end of the attainment year.
The District's staff report for Rule 3170 states that the exemption is
intended to address ``the difficulty of reducing emissions from units
with recently installed BACT.'' Although EPA understands the District's
intended purpose for including the exemption, the exemption does not
comply with CAA section 185, for the same reason as noted above for new
emission units.
The EPA's Clean Air Act Advisory Committee (CAAAC) has recently
asked EPA to review and address whether it is ``legally permissible
under either section 185 or 172(e) of the Clean Air Act for a State to
exercise discretion'' to develop fee program SIPs employing one or more
of a list of CAAAC-identified program options (see http://www.epa.gov/air/caaac/185wg). One of the program options the CAAAC identified is an
exemption from fees for ``well-controlled'' sources. In today's action,
EPA is proposing to disapprove the ``clean emission unit'' exemption in
SJVUAPCD Rule 3170 because we do not believe such an exemption is
authorized by CAA section 185. However, the State has not requested
that EPA review the SIP pursuant to section 172(e) and has not made a
demonstration that the program it has submitted would ensure controls
that are ``not less stringent'' than those required under section
172(e). Thus, EPA is not at this time addressing whether it is legally
permissible under CAA section 172(e) for a State to adopt an
alternative program at least as stringent as a section 185 fee program,
and for the alternative program to contain a clean unit exemption.
Section 3.2.1 defines the baseline period as two consecutive years
consisting of the attainment year and the year immediately prior to the
attainment year. CAA Section 185(b)(2) establishes the attainment year
as the baseline period. While this provision also provides the option
for calculating baseline emissions over a period of more than one
calendar year, that option is limited to sources with emissions that
are irregular, cyclical, or otherwise vary significantly from year to
year. Thus section 3.2.1 is inconsistent with the CAA because it
provides a different baseline than that required by the CAA (two years
instead of one) regardless of whether the emissions are irregular, etc.
Section 3.2.2 allows averaging over 2-5 years to establish baseline
emissions. CAA Section 185(b)(2) states that EPA may issue guidance
authorizing such an alternative method of calculating baseline
emissions if a source's emissions are irregular, cyclical, or otherwise
vary significantly from year to year. EPA issued guidance on
alternative methods for calculating baseline emissions in the form of
the memorandum from William Harnett, mentioned above. The averaging
period allowed in Section 3.2.2 of Rule 3170 appears consistent with
the March 21, 2008, guidance. However, the language in Section 3.2.2
allows such averaging ``if those years are determined by the APCO as
more representative of normal source operation.'' This language is
considered less stringent than the CAA criteria. The rule should be
amended to specify use of the expanded averaging period only if a
source's emissions are irregular, cyclical, or otherwise vary
significantly from year to year.
Section 3.4 defines the term ``Major Source'' by referring to the
definition in SJVUAPCD Rule 2201 (New and Modified Stationary Source
Review Rule). The current SIP-approved version of Rule 2201 was adopted
by the SJVUAPCD on December 19, 2002, and approved by EPA on May 17,
2004 (69 FR 27837). This version of Rule 2201 defines ``Major Source''
as a stationary source with VOC or NOx emissions of over 50,000 pounds
per year (25 tons per year). The CAA defines the major source threshold
as 10 tons per year for ozone nonattainment areas classified as
extreme. The SJVUAPCD amended Rule 2201 on December 18, 2008, and
submitted it for inclusion in the SIP on March 17, 2009. This amended
version includes the 10 tons per year threshold, but has not been
approved into the SIP. Therefore, Rule 3170's reliance on Rule 2201 to
define major sources is not approvable at this time. If a version of
Rule 2201 that contains the appropriate major source threshold is
approved into the SIP prior to finalizing this proposed action, then we
will no longer cite Section 3.4 as a deficiency in Rule 3170.
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 the submitted rule 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) because the rule does
not fully meet the statutory section 185 requirement. 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
[[Page 41828]]
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 SJVUAPCD, and EPA's final limited disapproval
would not prevent the local agency from enforcing it. Moreover, because
the rule would be approved into the SIP, it would also be Federally
enforceable.
However, the limited approval of Rule 3170 does not override
specific CAA mandates. If the area fails to attain by its 2010
attainment date, fees will accrue beginning in 2011 for emissions above
80% of source baselines for clean units, new units and major sources
which are exempted from fee collection under the State rule. The State
must adopt and submit a rule to collect fees for 2011 and future years
from those units or, consistent with the Administrator's obligation
under section 185(d), EPA will collect those fees. In addition, all
sources are liable for fees calculated in accordance with the baseline
definition in section 185(b)(2) as further interpreted in EPA guidance
issued pursuant to that provision. The State must adopt and submit a
rule that ensures fees are collected for 2011 and all future applicable
years based on the statutory baseline requirement. If the State fails
to do so, EPA will collect any additional fees owed pursuant to a
Federal program under section 185(d).
We will accept comments from the public on the proposed limited
approval and limited 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 action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
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.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals or disapprovals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve or disapprove requirements that
the State is already imposing. Therefore, because the proposed Federal
SIP limited approval/limited 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 limited approval/limited 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 approve and 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 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 proposes to approve or disapprove 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
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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.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.
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, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 6, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-19856 Filed 8-18-09; 8:45 am]
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