[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Proposed Rules]
[Pages 13468-13471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6103]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0080; FRL-9128-7]
Disapproval of California 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 (MBAPCD) portion of the
California State Implementation Plan (SIP). This revision concerns
opacity standards related to multiple pollutants, including particulate
matter (PM) emissions from several different types of sources, ranging
from fugitive dust to gas turbine generators. We are proposing action
on a local rule that regulates 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 April 21, 2010.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0080, 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.
[[Page 13469]]
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: Andrew Steckel, EPA Region IX,
(415)947-4115, [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. Are There Other Versions of This Rule?
C. What Is the Purpose of the Submitted Rule Revision?
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. EPA Recommendations To Further Improve the Rule
E. 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
----------------------------------------------------------------------------------------------------------------
Rule Rule title Adopted Submitted
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MBUAPCD............................ 400 Visible Emissions.......... 12/15/04 03/07/08
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On April 17, 2008, EPA found this rule submittal met the
completeness criteria in 40 CFR Part 51 Appendix V. These criteria must
be met before formal EPA review.
B. Are There Other Versions of This Rule?
On August 11, 2005, EPA approved a previous version of Rule 400
into the SIP. Please see 70 FR 46770. CARB has not submitted a
subsequent version of the rule for our consideration besides the March
2008 version.
C. What Is the Purpose of the Submitted Rule Revision?
Particulate matter (PM) contributes to effects that are harmful to
human health and the environment, including premature mortality,
aggravation of respiratory and cardiovascular disease, decreased lung
function, visibility impairment, and damage to vegetation and
ecosystems. Section 110(a) of the CAA requires States to submit
regulations that control PM and other emissions.
MBUAPCD Rule 400 is designed to limit the emissions of particulate
matter or other pollutants such as oxides of nitrogen from a variety of
activities and sources using a 20% opacity standard. These sources may
include construction sites, unpaved roads, disturbed soil in open
areas, and power plants. MBUAPCD has amended Rule 400 to allow for a
40% opacity standard in lieu of the rule's existing 20% opacity
standard during facility start-up operations. EPA's technical support
document (TSD) has more information about this submitted 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) and must not relax existing requirements (see sections 110(l) and
193). In addition, SIP rules must implement Reasonably Available
Control Measures (RACM), including Reasonably Available Control
Technology (RACT), in moderate PM nonattainment areas, and Best
Available Control Measures (BACM), including Best Available Control
Technology (BACT), in serious PM nonattainment areas (see CAA sections
189(a)(1) and 189(b)(1)). The MBUAPCD, however, attains the PM
standards and is not required to implement RACM or BACM per section
189.
Guidance and policy documents that we use to evaluate
enforceability and other regulatory requirements include the following:
1. ``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.
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
4. ``State Implementation Plans for Serious PM-10 Nonattainment
Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas
Generally; 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).
5. ``PM-10 Guideline Document,'' EPA 452/R-93-008, April 1993.
6. ``State Implementation Plans: Policy Regarding Excess Emissions
During Malfunctions, Startup, and Shutdown'', USEPA Memorandum,
September 20, 1999.
B. Does the Rule Meet the Evaluation Criteria?
Rule 400 is largely enforceable, but has one provision which does
not meet the evaluation criteria. This deficiency is summarized below
and discussed further in the TSD.
C. What Is the Rule Deficiency?
New section 3.2.3 places no time limitation on opacity between 20%
and 40% for gas turbines except as defined in the District permit
pursuant to new section 2.5. This is inconsistent with long-standing
national policy on excess emissions, which explains that SIP rules must
ensure that emissions during startup conditions are minimized. We
believe this could be addressed by adding rule text establishing
appropriate time limitations on gas turbine startup, requiring sources
to minimize time and emissions during startup, and demonstrating in the
staff report that the rule minimizes emissions during startup.
[[Page 13470]]
D. EPA Recommendations to Further Improve the Rule
The TSD describes an additional rule revision that we recommend for
the next time the local agency modifies the rule, but that is not
currently the basis for disapproval of the rule.
E. 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 400. If finalized, this
action would retain the version of Rule 400 approved in 2005 in the
SIP. Sanctions will not be imposed under section 179 of the Act,
because revision of Rule 400 is not a required submittal under the CAA
and the Monterey Bay area continues to meet the NAAQS for multiple
pollutants, including ozone and PM. A final disapproval would similarly
not trigger the Federal implementation plan (FIP) requirement under
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
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
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.,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. 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. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector.'' EPA has determined that the proposed disapproval 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 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), 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.''
This action does not have federalism implications. It 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
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is proposing to disapprove would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on Tribal governments or preempt Tribal law. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 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 EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it is not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997). This proposed SIP disapproval under section 110
and subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new regulations but simply disapproves certain State
requirements for inclusion into the SIP.
[[Page 13471]]
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (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(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove State choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
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: February 23, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2010-6103 Filed 3-19-10; 8:45 am]
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