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 Environmental Protection Agency 40 CFR Part 52
[CA242-0240; FRL-7002-9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Proposed rule.
 SUMMARY: EPA is proposing a disapproval of revisions to the Imperial County Air Pollution Control District's (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions concern visible emissions (VE) from many different sources of air pollution. We are proposing action on Rule 401—Opacity of Emissions, a local rule regulating different 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 July 26, 2001.
 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. 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: California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814. 
                        ( print page 33931) Imperial County Air Pollution Control District, 150 South 9th Street, El Centro, CA 92243
 FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1226.


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's deficiencies? D. EPA recommendations to further improve the rule. E. Proposed action and public comment. III. Background Information. Why was this rule submitted? IV. Administrative Requirements I. The State's Submittal A. What Rule Did the State Submit? Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the ICAPCD and submitted by the California Air Resources Board (CARB). Table 1.—Submitted Rules
Local agency
Rule No.
Rule title
Adopted
SubmittedICAPCD
401
Opacity of Emissions
09/14/99
05/26/00
 On October 6, 2000, 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 may begin. B. Are There Other Versions of the Rule? The SIP contains two rules with requirements and provisions similar to submitted Rule 401: Rule 401—Opacity of Emissions and Rule 402—Exemptions. EPA incorporated these rules within the SIP on February 3, 1989. We are acting on the latest and only state submittal of Rule 401. C. What is the Purpose of the Submitted Rule Revision? This rule limits the emissions of visible air contaminants of any type; usually, but not always particulate matter from combustion sources and industrial sites. Specifically, Rule 401 prohibits emissions beyond a defined opacity standard. ICAPCD's September 14, 1999 amendments consolidate SIP Rules 401 and 402 within a single rule format. Revised Rule 401 includes by reference exemptions taken from the California Health and Safety Code at sections 41701.5, 41704, 41800, and 42350. The TSD has more detailed information about these amendments. 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), must meet Reasonably Available Control Measure (RACM) requirements for nonattainment areas (see section 189), and must not relax existing requirements (see sections 110(l) and 193). The ICAPCD regulates an PM nonattainment area (see 40 CFR part 81), so Rule 401 must fulfill RACM. Guidance and policy documents that we used to define specific enforceability requirements 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; Clarification to Appendix D of November 24, 1987 
                    **Federal Register**
                     document,” (Blue Book), notice of availability published in the May 25, 1988 
                    **Federal Register**
                    . B. Does the Rule Meet the Evaluation Criteria? This rule is partially consistent with the relevant policy and guidance regarding enforceability and RACM. Also, a single rule format provides for a clearer presentation of VE requirements. However, there are rule provisions which do not meet the evaluation criteria. These provisions are summarized below and discussed further in the TSD. C. What Are the Rule's Deficiencies? Certain provisions of Rule 401 conflict with section 110 and part D of the Act and prevent full approval of the SIP revision. First, given the section 189 RACM requirement, Rule 401 should not grandfather existing sources as it does at section B.3. Secondly, California has not submitted the sections of the Health and Safety Code (HSC) cited in section C for SIP inclusion. Consequently, EPA can neither review, nor act on these incorporations by reference. While one remedy would be to include desired exemptions within the rule, they would again be subject to EPA review and approval. Finally, section 42350 of the HSC allows for variances to a district's opacity limits. We object to these variance provisions because they provide broad discretion to modify the SIP in violation of CAA sections 110(i), 110(l), and 193. D. EPA Recommendations to Further Improve the Rule We have no recommended rule revisions that do not affect EPA's current action; these revisions would be recommended for the next time the local agency modifies the rule. E. Proposed Action and Public Comment As authorized in sections 110(l) and 301(a) of the Act, EPA is proposing a disapproval of Rule 401. If finalized, this action will preserve the versions of Rule 401 & 402 approved in 1989 already within the federally approved SIP. These rules will remain federally enforceable. As a result, this disapproval action does not trigger sanctions or Federal Implementation Plan time clocks under section 179 of the CAA. We will accept comments from the public on this proposed disapproval for the next 30 days. III. Background Information Why Was This Rule Submitted? Visible emission rules with their opacity standards are basic components of an air quality regulation program and a general RACM requirement for PM-10 regulations. Section 110(a) of the CAA requires states to submit regulations that control VE emissions. Table 2 lists some of the national milestones leading to the submittal of this local agency VE rule.
                    ( print page 33932) Table 2.—PM-10 Nonattainment Milestones
Date
EventNovember 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.December 10, 1993
Section 189(a)(1)(C) requires that PM-10 nonattainment areas implement all reasonably available control measures (RACM) by this date.
 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 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 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. D. 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. 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. 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). 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 
                    ( print page 33933)
                    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
Hydrocarbons
Intergovernmental relations
Ozone
Reporting and recordkeeping requirements
Volatile organic compound
 Authority:
                    42 U.S.C. 7401, 
                        *et seq.* Dated: June 8, 2001. Keith Takata, Acting Regional Administrator, Region IX.


[FR Doc. 01-16004 Filed 6-25-01; 8:45 am] BILLING CODE 6560-50-P