Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: September 16, 2003 (Volume 68, Number 179)]

[Rules and Regulations]

[Page 54167-54170]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16se03-6]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-271-0412a; FRL-7551-8]

Revisions to the California State Implementation Plan, Monterey Bay Unified and San Joaquin Valley Unified Air Pollution Control Districts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and the Monterey Bay Unified Air Pollution Control District (MBUAPCD) portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compounds (VOC) emissions from organic solvents, animal reduction, leather processing, and industries coating glass products. We are approving and rescinding local rules that regulate these emissions sources under authority of the Clean Air Act as amended in 1990 (CAA or the Act)).

DATES: This rule is effective on November 17, 2003 without further notice, unless EPA receives adverse comments by October 16, 2003. If we receive such comment, we will publish a timely withdrawal in the Federal Register to notify the public that this rule will not take effect.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR- 4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or email to steckel.andrew@epa.gov. You can inspect copies of the submitted SIP 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 SIP revisions at the following locations:

Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail Code 6102T), Washington, DC 20460. 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 Ct., Monterey, CA 93940-6536. San Joaquin Valley Air Pollution Control District, 1990 E. Gettysburg, Fresno, CA 93726. A copy of the rules 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 rules that were submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Cynthia G. Allen, EPA Region IX, (415) 947-4120.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.

Table of Contents

1. The State's Submittal

   1. What rules did the State submit?

   2. Are there other versions of these rules?

   3. What is the purpose of the submitted rule revisions? II. EPA's Evaluation and Action

   1. How is EPA evaluating the rules?

   2. Do the rules meet the evaluation criteria?

   3. EPA recommendations to further improve the rules

   4. Public comment and final action III. Background Information

   Why were these rules submitted? IV. Administrative Requirements

1. The State's Submittal

   1. What Rules Did the State Submit?

      Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

      [[Page 54168]]

      Rule Local agency

      number

      Rule title

      Adopted

      Submitted

      Monterey................................. 414 Reduction of Animal Matter.

      08/21/02

      10/16/02 Monterey................................. 430 Leather Processing

      08/21/02

      10/16/02 Operations (rescission). San Joaquin.............................. 4610 Glass Coating Operations...

      12/19/02

      04/01/03 San Joaquin.............................. 4661 Organic Solvents...........

      05/16/02

      08/06/02

      On December 3, 2002 (MBUAPCD), August 30, 2002 (SJVUAPCD Rule 4661) and May 13, 2003 (SJVUAPCD Rule 4610), 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.

   2. Are There Other Versions of These Rules?

      MBUAPCD adopted a version of Rule 414 on December 13, 1984 and Rule 430 on January 15, 1997, which EPA approved into the SIP on July 13, 1987 (52 FR 26148) and February 9, 1999 (64 FR 6226), respectively. SJVUAPCD Rule 4610 is a new rule. EPA has not reviewed and approved into the SIP any prior version of the rule. SJVUAPCD adopted a version of Rule 4661 on December 20, 2001, which EPA approved into the SIP on July 22, 2002 (67 FR 47701).

   3. What Is the Purpose of the Submitted Rule Revisions?

      MBUAPCD Rule 414 has been revised by reformatting the rule to be consistent with the District's standard format.

      MBUAPCD Rule 430 is being rescinded because there are no longer any affected sources.

      SJVUAPCD Rule 4610 is a new rule and is designed to decrease VOC emissions from industries coating glass products with VOC containing materials. The rule contains general VOC emission limits and speciality coating VOC emission limits for mirror backing, optical, electric dissipating, and metallic coatings. Also, the rule contains requirements for solvent cleaning, storage and disposal, application equipment, and emission control equipment.

      SJVUAPCD Rule 4661 has been revised to exempt sources applicable to Rule 4610 from the requirements of Rule 4661.

      The TSDs have more information about these rules.

2. EPA's Evaluation and Action

   1. How Is EPA Evaluating the Rules?

      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). The SJVUAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so Rules 4610 and 4661 must fulfill RACT.

      Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:

      1. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

      2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,'' EPA, May 25, 1988 (the Bluebook).

      3. ``Guidance Document for Correcting Common VOC & Other Rule Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).

   2. Do the Rules Meet the Evaluation Criteria?

      We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

   3. Public Comment and Final Action

      As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules and rule rescission because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules and rule recission. If we receive adverse comments by October 16, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on November 17, 2003. This will incorporate these rules and rescission into the federally enforceable SIP.

      Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

3. Background Information

   Why Were These Rules Submitted?

   VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

   Table 2.--Ozone Nonattainment Milestones

   Date

   Event

   March 3, 1978..................... EPA promulgated a list of ozone nonattainment areas under the Clean Air Act as amended in 1977. 43 FR 8964; 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. May 15, 1991...................... Section 182(a)(2)(A) requires that ozone nonattainment areas correct deficient RACT rules by this date.

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4. Administrative Requirements

   1. Executive Order 12866

      The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.''

   2. 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.

   3. 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 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 rule.

   4. 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 final 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.

      Moreover, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicited comment on the proposed rule from tribal officials.

   5. Executive Order 13211

      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.

   6. 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 final 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.

      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).

   7. 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 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 approval action promulgated 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 acts on pre- existing requirements under State or local law, and imposes no new requirements. Accordingly, no

      [[Page 54170]]

      additional costs to State, local, or tribal governments, or to the private sector, result from this action.

   8. 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 action because it does not require the public to perform activities conducive to the use of VCS.

1. Submission to Congress and the Comptroller General

   The Congressional Review Act, 5 U.S.C. 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 rule is not a ``major'' rule as defined by 5 U.S.C. 804(2).

   10. Petitions for Judicial Review

   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 November 17, 2003. 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, Reporting and recordkeeping requirements, Volatile organic compounds.

   Dated: August 5, 2003. Debbie Jordan, Acting Regional Administrator, Region IX.

   0 Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

   PART 52--[AMENDED]

   0 1. The authority citation for part 52 continues to read as follows:

   Authority: 42 U.S.C. 7401 et seq.

   Subpart F--California

   0 2. Section 52.220 is amended by adding paragraphs (c)(245)(i)(C)(2), (302)(i)(B)(3), (303)(i)(C)(2), and (315)(i)(B)(2) to read as follows:

   Sec. 52.220 Identification of plan.

   * * * * *

   (c) * * *

   (245) * * *

   (i) * * *

   (C) * * *

   (2) Previously approved on February 9, 1999 in (245)(i)(C)(l) and now deleted without replacement Rule 430. * * * * *

   (302) * * *

   (i) * * *

   (B) * * *

   (3) Rule 414, adopted on August 21, 2002. * * * * *

   (303) * * *

   (i) * * *

   (C) * * *

   (2) Rule 4661, adopted on May 16, 2002. * * * * *

   (315) * * *

   (i) * * *

   (B) * * *

   (2) Rule 4610, adopted on December 19, 2002. * * * * *

   [FR Doc. 03-23588 Filed 9-15-03; 8:45 am]

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