56284 Federal Register / Vol. 65, No. 181 / Monday, September 18, 2000 / Proposed Rules

1Regulation 2 also contains: Rule 3—Power

Plants; Rule 6—Major Facility Review; Rule 7—

Acid Rain; Rule 8—Interchangeable Emission Reduction Credits. Rule 5 has not yet been adopted

and Rules 7 and 8 are not in the current SIP.

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 244–0259; FRL–6870–7]

Revisions to the California State

Implementation Plan, Bay Area Air

Quality Management District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes two actions on

Regulations 1 and 2 submitted for the

Bay Area Air Quality Management

District (‘‘BAAQMD’’ or ‘‘District’’)

portion of the California State

Implementation Plan (SIP). The

Regulations were submitted for

purposes of meeting requirements of the

Clean Air Act, as amended in 1990

(‘‘CAA’’ or ‘‘Act’’), with regard to new

source review (NSR) in areas that have

not attained the national ambient air

quality standards (NAAQS). First, EPA

proposes a full approval of Regulation

1—General Provisions and Definitions.

Second, EPA proposes a limited

approval and limited disapproval of

three Regulation 2 rules: Rule 1—

Permits, General Requirements; Rule

2—Permits, New Source Review; and

Rule 4—Permits, Emissions Banking.

Today’s action also serves to stop the

federal sanctions clock that started 18

months ago (February 25, 1999)—the

effective date of EPA’s final limited

approval and limited disapproval

rulemaking on an earlier version of

Regulation 2, Rules 1, 2 and 4. EPA has

stopped the sanctions clock associated

with our 1999 rulemaking because

BAAQMD has substantially corrected all

deficiencies identified in that final

rulemaking. However, despite the

BAAQMD correction of the deficiencies

in Regulation 2, EPA has identified two

new deficiencies in Regulation 2

preventing our full approval of it. We

are taking comments on this proposal

and plan to follow with a final action.

Upon final action, if either of the

deficiencies identified in today’s rule

remain, a new 18-month sanctions clock

will begin on our final action on the

rule.

DATES: Any comments must arrive by

October 18, 2000.

ADDRESSES: Mail comments to David

Wampler, Permits Office (AIR–3), U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105–3901.

You can inspect copies of the

submitted Regulations and EPA’s

technical support documents (TSDs) at

our Region IX office during normal

business hours. You may also see copies

of the submitted Regulations at the

following locations:

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 95812.

Bay Area Air Quality Management

District, 939 Ellis Street, San

Francisco, California 94109.

FOR FURTHER INFORMATION CONTACT:

David Wampler, Permits Office (AIR–3),

U.S. Environmental Protection Agency,

Region IX, (415) 744–1256.

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. What is the purpose of the rule

revisions?

II. EPA’s Evaluation and Action

A. How is EPA evaluating the rules?

B. What are the rule deficiencies?

C. Proposed action and public comment.

III. Background information

Why were these rules submitted?

IV. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13045

C. Executive Order 13084

D. Executive Order 13132

E. Regulatory Flexibility Act

F. Unfunded Mandates

G. National Technology Transfer and

Advancements Act

I. The State’s Submittal

A. What rules did the State submit?

Table 1 lists Regulation 1 and the

three rules in Regulation 2 1 addressed

by this proposal, with the dates that

they were adopted by the BAAQMD and

submitted by the California Air

Resources Board (CARB).

TABLE 1—SUBMITTED RULES

Agency Rule No. Rule title Adopted Submitted

BAAQMD ............................... Reg. 1 ......... General Requirements ......................................................... May 17, 2000 ... August 3, 2000

BAAQMD ............................... Reg. 2 .........

Rule 1 ..........

Permits—General Requirements .......................................... May 17, 2000 ... August 3, 2000

BAAQMD ............................... Reg. 2 .........

Rule 2 ..........

Permits—New Source Review ............................................. May 17, 2000 ... August 3, 2000

BAAQMD ............................... Reg. 2 .........

Rule 4 ..........

Permits—Emissions Banking ............................................... May 17, 2000 ... August 3, 2000

On August 17, 2000, Regulations 1

and 2 submittals were found to meet the

completeness criteria in 40 CFR part 51,

appendix V, which must be met before

formal EPA review.

B. What is the purpose of the rule

revisions?

Regulation 1 and three rules in

Regulation 2 (hereinafter ‘‘Reg. 2 rules’’)

were revised by the BAAQMD in May

2000, in part, to correct rule deficiencies

we raised in the final limited approval

limited disapproval rulemaking for

Regulation 2, rules 1, 2 and 4 on January

26, 1999 (64 FR 3850; see also our

proposed rulemaking on November 6,

1998 and the Technical Support

Document (TSD) for that rulemaking).

Regulation 1—General Provisions was

last approved into the SIP on September

29, 1998 (63 FR 51833). BAAQMD made

some revisions to Regulation 1 to clarify

language. The revisions do not

substantially change Regulation 1 as

previously approved.

II. EPA’s Evaluation and Action

A. How is EPA evaluating the rules?

EPA evaluated Regulation 1 and the

Reg. 2 rules for consistency with the

requirements of the CAA and EPA

regulations, as found in section 110 and

part D of the CAA and 40 CFR part 51

(Requirements for Preparation,

Adoption, and Submittal of

Implementation Plans). Our

interpretation of these requirements,

which forms the basis for today’s action,

Federal Register / Vol. 65, No. 181 / Monday, September 18, 2000 / Proposed Rules 56285

2BAAQMD requires more stationary sources to

obtain offsets than is required under federal law.

For example, for ozone precursors, federal law

requires new stationary sources with a potential to

emit (PTE) above 100 tons per year to be offset at

a 1.15:1 ratio. BAAQMD Rule 2–2–302 requires

offsets at a 1.15:1 ratio for stationary sources with

a PTE above 50 tons per year. For new stationary

sources with a PTE between 15 and 50 tons per

year, BAAQMD requires offsets at a 1.0:1.0 ratio.

3Adjustments for federal purposes are included

in rule 2–2–423.1 through 3 and are required if:

BAAQMD adopts a rule to meet the federal

attainment demonstration requirements (see CAA

section 171(c)); a measure is approved into the SIP

and it applies to BAAQMD; or EPA promulgates a

New Source Performance Standard or Maximum

Achievable Control Technology standard. For more

information on adjusting previously banked

emission reduction credits, please see August 26,

1994 EPA memorandum entitled, ‘‘Response to

Request for Guidance on Use of Pre-1990 ERC’s and

Adjusting for RACT at Time of Use,’’ from John

Seitz, Director of OAQPS to David Howekamp,

Director, Region IX, Air and Toxics Division.

also appears in the various EPA policy

guidance documents.

EPA has issued a ‘‘General Preamble’’

describing EPA’s preliminary views on

how EPA intends to review SIPs and SIP

revisions submitted under part D,

including those State submittals

containing nonattainment NSR SIP

requirements (See 57 FR 13498 (April

16, 1992) and 57 FR 18070 (April 28,

1992)). Because EPA is describing its

interpretations here only in broad terms,

the reader should refer to the General

Preamble for a more detailed discussion.

The Act requires States to comply

with certain procedural requirements in

developing implementation plans and

plan revisions for submission to EPA.

Section 110(a)(2) and section 110(l) of

the Act require that each

implementation plan or revision to an

implementation plan submitted by a

State must be adopted after reasonable

notice and public hearing. Section

172(c)(7) of the Act requires that plan

provisions for nonattainment areas shall

meet the applicable provisions of

section 110(a)(2).

In addition, we reviewed the Reg. 2,

rules to determine whether the

BAAQMD revisions adequately

corrected six deficiencies that we had

identified in our final limited approval

and limited disapproval action dated

January 26, 1999. (See also our proposed

action dated November 6, 1998 at 63 FR

59924). Our review determined that the

BAAQMD Reg. 2 rule revisions

substantially corrected the six

deficiencies we had earlier identified.

However, in part because of the

correction of the prior deficiencies, the

Reg. 2 rules now contain two additional

deficiencies (discussed below) which

prevent full approval under part D of

the CAA. Therefore, EPA today is

proposing a limited disapproval of the

Reg. 2 rules. If EPA finalizes this limited

disapproval of the Reg. 2 rules,

BAAQMD will have 18 months from the

date of the final action to correct any

deficiencies to avoid federal sanctions.

See CAA section 179(b). Further, the

final disapproval triggers the Federal

implementation plan requirements

under 110(c).

B. What are the rule deficiencies?

This discussion summarizes how

certain provisions in the revised Reg. 2

rules conflict with section 110 and part

D of the Act and prevent full approval

of the SIP revision. We have included in

our discussion suggested corrections to

the deficiencies. A detailed discussion

of the rule deficiencies is included in

the Technical Support Document (TSD)

for this rulemaking. The TSD is

available from the EPA Region IX office.

• BAAQMD Regulation 2 Rule 2—

Alternative Siting Analysis

For a proposed new major facility or

a proposed major modification, CAA

section 173(a)(5) requires BAAQMD to

analyze alternative sites, sizes,

production processes, and

environmental control techniques for a

proposed source and determine if the

analysis demonstrates that the benefits

of the proposed source significantly

outweigh the environmental and social

costs imposed as a result of its location,

construction or modification. Reg. 2,

rule 2 has omitted the required

alternatives analysis and determination.

Discussion: When the District was

developing the corrections to the Reg. 2

rules, we informally notified them that

rule 2 should be amended to include the

section 173(a)(5) alternative siting

analysis requirement. The District had

included the requirement in a April 12,

2000 draft version of the rule and we

had acknowledged it as approvable in

our March 15, 2000 NSR Rule comment

letter. However, prior to Board adoption

of the rule, the District decided to

remove the provision (see document in

SIP submittal entitled ‘‘Changes from

the April 12 Draft’’). Therefore, the

adopted rule does not contain the

section 173(a)(5) requirement. This

omission is a rule deficiency that must

be corrected before EPA can grant full

approval of the submitted rule. To

correct the deficiency, BAAQMD could

re-insert the rule language that they had

previously included in the April 12,

2000 draft rule.

• Rule 2–2–423. Demonstration of

Offset Program Equivalence

EPA’s final January 26, 1999 limited

disapproval found that rule 2 was

deficient because it did not require

emission reductions to be surplus at the

time of use. Instead, the rule only

required emission reductions to be

surplus when they were generated and

banked. In response, BAAQMD added

section 2–2–423 (and supporting section

2–2–246). We find that these provisions

substantially, although not completely,

correct the deficiency. Therefore, the

correction is sufficient to stop the

sanctions clock and prevent imposition

of immediate sanctions. However, to

ensure that the deficiency is fully

corrected, we are proposing to cite

section 2–2–423 as a new deficiency.

This new deficiency arises because it is

not clear what steps the District will

take (and by when) if the annual offset

analysis fails to make the required

demonstration of offset equivalency and

the small facility bank does not have

sufficient surplus emission reductions.

Discussion: In our final rulemaking on

January 26, 1999, EPA stated that all

emission reduction credits (ERCs) ‘‘must

be adjusted at the time of use pursuant

to the requirements of sections 173(a),

173(c)(1) and 173(c)(2) of the Clean Air

Act (‘Act’).’’

In response, BAAQMD added section

2–2–423 requiring the District to

provide an annual demonstration to

EPA that the number of offsets provided

for all new or modified sources,2 less

adjustments to those offsets for federal

purposes 3 occurring between credit

generation and use, exceed the number

of offsets required that year under

federal law for new major stationary

sources (>100 tons per year) or major

modifications (>40 tons per year). EPA

believes that this system to demonstrate

equivalency is acceptable for satisfying

the CAA section 173(c)(2) offset

requirements.

Section 2–2–423 also includes a

remedy if the annual analysis fails to

make the required demonstration. If

triggered, the remedy requires the

District to provide sufficient offsets to

make up the difference out of the small

facility bank (see 2–4–414). If the small

facility bank does not contain the

necessary additional surplus emission

reductions, the District, ‘‘shall obtain

the necessary emission reductions.’’

EPA has determined that the District’s

unspecified commitment to provide

additional surplus offsets limits our

ability to fully approve the rule. The

rule does not indicate what the District

will do to find the necessary 1surplus

reductions and does not identify a

deadline.

How the Deficiency Can be Corrected.

To correct the deficiency the District

must amend the provision at 2–2–423.

Either of the two following options may

be approvable:

56286 Federal Register / Vol. 65, No. 181 / Monday, September 18, 2000 / Proposed Rules

• If the small facility bank does not

contain the necessary surplus emission

reductions, the District must not issue

permits to new major stationary sources

or major modifications of nonattainment pollutants until the District

demonstrates that the deficit has been

balanced; or

• If the small facility bank does not

contain the necessary surplus emission

reductions, the District may continue to

issue permits for new major sources or

major modifications provided the offsets

for those sources are demonstrated to be

surplus at the time the permit is issued.

This remedy would be in effect until the

remaining shortfall is eliminated by

securing the necessary emission

reductions. EPA believes any shortfall

must be eliminated in a timely manner

not to exceed one year.

C. Proposed Action and Public

Comment

As authorized in sections 110(k)(3)

and 301(a) of the Act, today’s action is

separated into two parts: first, EPA is

proposing a full approval of Regulation

1 and; second, EPA is proposing a

limited approval and limited

disapproval of Regulation 2, rules 1, 2

and 4. Each of these actions strengthens

the SIP. If finalized, this action would

incorporate all the submitted rules into

the SIP, including those provisions

identified as deficient.

EPA proposes full approval of

Regulation 1 because the BAAQMD only

modified the rule slightly to clarify

some definitions and remove a

regulatory exclusion for emergency

standby engines. None of the changes

significantly alter the existing SIPapproved version.

The approval of the Reg. 2 rules is

limited because EPA is simultaneously

proposing a limited disapproval of the

rules 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 rules have been adopted by

the BAAQMD, and EPA’s final limited

disapproval would not prevent the local

agency from enforcing them.

We will accept comments from the

public on the proposed limited approval

and limited disapproval for the next 30

days.

III. Background Information

Why Were These Rules Submitted?

These rules were submitted primarily

to correct the six deficiencies identified

in our January 26, 1999 final rulemaking

(60 FR 3850). Please refer to the TSD for

more information on the rule changes

that were made to correct the

deficiencies.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

Regulatory Planning and Review.

B. 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.

C. Executive Order 13084

Under Executive Order 13084,

Consultation and Coordination with

Indian Tribal Governments, EPA may

not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the OMB in

a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s proposed rule does not

significantly or uniquely affect the

communities of Indian tribal

governments. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this proposed rule.

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

Federal Register / Vol. 65, No. 181 / Monday, September 18, 2000 / Proposed Rules 56287

Executive Order do not apply to this

proposed rule.

E. 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.

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).

F. 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 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.

G. 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 dioxide, Ozone,

Reporting and recordkeeping

requirements.

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

Dated: August 25, 2000.

Keith Takata,

Acting Regional Administrator, Region IX.

[FR Doc. 00–23945 Filed 9–15–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 260, 261, 268 and 271

[FRL–6870–6]

RIN–2050–AE65

Land Disposal Restrictions; Treatment

Standards for Spent Potliners From

Primary Aluminum Reduction (K088)

and Regulatory Classification of K088

Vitrification Units

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; reopening of the

comment period.

SUMMARY: On July 12, 2000 (65 FR

42937), EPA issued a proposed rule

presenting potential revisions to the

Land Disposal Restrictions treatment

standards applicable to spent potliners

from primary aluminum reduction (EPA

hazardous waste: K088). The proposal

requested comment on the proposed

treatment standards, the Agency’s

proposal to classify K088 vitrification

units as RCRA subpart X miscellaneous

treatment units, and the appropriateness

of extending the rational proposed for

K088-vitrification units to all

vitrification units treating RCRA

hazardous waste. The Agency is

extending the comment period because

several commenters have requested

more time to address the issues raised

in the proposal, and to generate data on

hazardous concentrations in untreated

and treated K088 waste. This document

extends the comment period for the

proposed rule.

DATES: The comment period for this

proposed rule is extended from the

original closing date of September 11,

2000 to December 11, 2000.

ADDRESSES: If you wish to comment on

this notice of proposed rulemaking

(NPRM), you must send an original and

two copies of the comments referencing

docket number F–2000–TSSP–FFFFF to:

RCRA Docket Information Center, Office

of Solid Waste (5305G), U.S.

Environmental Protection Agency

Headquarters (EPA, HQ), Ariel Rios

Building, 1200 Pennsylvania Avenue,

NW, Washington, D.C. 20460. Hand

deliveries of comments should be made

to the Arlington, VA, address listed

below. You may also submit comments

electronically by sending electronic

mail through the Internet to:

rcradocket@epamail.epa.gov. You

should identify comments in electronic

format with the docket number F–2000–

TSSP–FFFFF. You must submit all

electronic comments as an ASCII (text)

file, avoiding the use of special

characters and any form of encryption.

If you do not submit comments

electronically, EPA is asking

prospective commenters to voluntarily

submit one additional copy of their

comments on labeled personal computer

diskettes in ASCII (text) format or a

word processing format that can be

converted to ASCII (text). It is essential

to specify on the disk label the word

processing software and version/edition

as well as the commenter’s name. This

will allow EPA to convert the comments

into one of the word processing formats

utilized by the Agency. Please use

mailing envelopes designed to

physically protect the submitted

diskettes. EPA emphasizes that

submission of comments on diskettes is

not mandatory, nor will it result in any

advantage or disadvantage to any

commenter.

You should not submit electronically

any confidential business information

(CBI). You must submit an original and

two copies of CBI under separate cover

to: RCRA CBI Document Control Officer,

Office of Solid Waste (5305W), U.S.