Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; South Coast Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 184-0094; FRL-6149-4]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; South Coast Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing a disapproval of revisions to the California

State Implementation Plan (SIP). These revisions concern the potential

exemption of sources from applicable emission limits contained in

permits and in source category specific rules when excess emissions

occur due to an unavoidable malfunction. EPA has evaluated these

revisions and is proposing to disapprove them because they contain

deficiencies that, if approved, would weaken the SIP.

DATES: Comments on this proposed action must be received in writing on

or before September 21, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office

(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105-3901.

Copies of the rule and EPA's evaluation report of the rule are

available for public inspection at EPA's Region IX office during normal

business hours. Copies of the submitted rule are also available for

inspection at the following locations:

Environmental Protection Agency, Air Docket (6102), 401 M Street,

SW., Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 L Street, Sacramento, CA 95812.

South Coast Air Quality Management District, 21865 E. Copley Drive,

Diamond Bar, CA 91765.

FOR FURTHER INFORMATION CONTACT: Thomas C. Canaday, Rulemaking Office

(AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1202.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for disapproval is South Coast Air Quality

Management District (SCAQMD) Rule 430--Breakdown Provisions. Rule 430

[[Page 44821]]

was submitted to EPA by the SCAQMD on October 18, 1996.

II. Background

This document addresses EPA's proposed action for South Coast Air

Quality Management District (SCAQMD) Rule 430--Breakdown Provisions.

SCAQMD adopted Rule 430 on July 12, 1996, and submitted it to EPA on

October 18, 1996. Rule 430 was found to be complete on April 23, 1997,

pursuant to EPA's completeness criteria that are set forth in 40 CFR

part 51, appendix V.1

---------------------------------------------------------------------------

\1\ EPA adopted the completeness criteria on February 16, 1990

(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,

revised the criteria on August 26, 1991 (56 FR 42216).

---------------------------------------------------------------------------

III. EPA Evaluation and Proposed Action

In determining the approvability of a rule, EPA must evaluate the

rule 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). EPA's interpretation of these requirements,

which forms the basis for this action, appears in EPA policy guidance

documents. EPA policy on excess emissions resulting from unavoidable

malfunctions is contained in a memorandum dated February 15, 1983,

entitled ``Policy on Excess Emissions During Startup, Shutdown,

Maintenance, and Malfunctions'' (the Bennett Memo). In general, the

guidance document cited above, as well as other relevant and applicable

guidance documents, have been set forth to ensure that submitted rules

meet Federal requirements, are fully enforceable, and strengthen or

maintain the SIP.

There is currently no version of South Coast Air Quality Management

District (SCAQMD) Rule 430--Breakdown Provisions in the SIP. The

submitted rule includes the following provisions:

General provisions establishing the applicability of the

rule and providing for certain exceptions.

Requirements for facilities seeking relief under Rule 430.

Facilities shall report breakdowns within one hour, shall shut down

malfunctioning equipment within twenty-four hours of a breakdown, and

shall submit a detailed Breakdown Emissions Report within thirty days.

Provisions authorizing the SCAQMD Executive Officer to

investigate reported breakdowns and to determine whether relief under

Rule 430 shall be granted.

Provisions allowing a source the option of operating

malfunctioning equipment past the twenty-four hour time limit provided

a petition for an emergency variance has been filed.

SCAQMD Rule 430 requires the source to demonstrate to the

satisfaction of the SCAQMD Executive Officer that a malfunction did not

result from improper operation or maintenance procedures in order to

obtain relief from enforcement. Rule 430 provides that if these

criteria are met, then no violation of the rule or permit condition

containing the applicable emission limit will have occurred. The

Bennett memo explains that it is EPA policy to approve SIP revisions

concerning excess emissions due to malfunction which contain an

``enforcement discretion approach.'' Under this approach, even if the

source demonstrates that the excess emissions are due to an unavoidable

malfunction, these emissions still constitute a violation of the

applicable requirement. This distinction is significant because the

occurrence of a violation gives rise to EPA enforcement prerogatives in

addition to the power to impose penalties, namely the power to seek an

injunction against the source. It is EPA policy that even if a

malfunction is determined by EPA to have been unavoidable according to

the criteria set forth in the Bennett memo, EPA may still seek to

enjoin the facility from further operation if such an injunction is

necessary in order to preserve the National Ambient Air Quality

Standards (NAAQS), Prevention of Significant Deterioration (PSD)

increments, or other air quality related values. A further deficiency

of SCAQMD Rule 430 is that it provides complete discretion to the

Executive Officer to determine whether penalties shall be imposed in

response to excess emissions due to a malfunction. It is EPA policy

that the Agency cannot be bound by the decision of the District from

seeking penalties for a violation of the SIP.

Rules submitted to EPA for approval as revisions to the SIP must be

fully enforceable, must maintain or strengthen the SIP, and must

conform with EPA policy in order to be approved by EPA. As described

above, SCAQMD Rule 430 contains deficiencies related to the

preservation of EPA's injunctive prerogative, as well as to the rule's

binding of EPA to the Executive Officer's discretion with respect to

the imposition of penalties. SCAQMD Rule 430, if approved, would create

a potential exemption of sources from applicable emissions limits

contained in the SIP. While EPA policy allows for the creation of such

potential exemptions, the deficiencies identified in Rule 430 undermine

the prerogatives retained by EPA for protecting the NAAQS, PSD

increments, and other air quality related values in those instances

where exemptions are allowed. Thus the submitted Rule 430 would, if

approved, weaken the SIP. A more detailed discussion of EPA's

evaluation of SCAQMD Rule 430 can be found in the Technical Support

Document, dated July 30, 1998, prepared by EPA for the rule.

Because of the identified deficiencies, EPA cannot grant approval

of SCAQMD Rule 430 under section 110(k)(3) and part D. Therefore, in

order to maintain the SIP, EPA is proposing a disapproval of this rule

because it contains deficiencies which must be corrected in order to

fully meet the requirements of sections 182(a)(2), 182(b)(2), 182(f),

and part D of the CAA. Under section 179(a)(2), if the Administrator

disapproves a submission under section 110(k) for an area designated

nonattainment, based on the submission's failure to meet one or more of

the elements required by the Act, the Administrator must apply one of

the sanctions set forth in section 179(b) unless the deficiency has

been corrected within 18 months of such disapproval. Section 179(b)

provides two sanctions available to the Administrator: Highway funding

and offsets. The 18 month period referred to in section 179(a) will

begin on the effective date of EPA's final disapproval. Moreover, the

final disapproval triggers the Federal Implementation Plan (FIP)

requirement under section 110(c).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State implementation plan. Each request for revision to

the State implementation plan shall be considered separately in light

of specific technical, economic and environmental factors and in

relation to relevant statutory and regulatory requirements.

IV. Administrative Requirements

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

The proposed rules are not subject to E.O. 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because they are not ``economically significant'' actions

under E.O. 12866.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare

[[Page 44822]]

a regulatory flexibility analysis assessing the impact of any proposed

or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively,

EPA may certify that the rule will not have a significant impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and government entities

with jurisdiction over populations of less than 50,000.

SIP approvals under sections 110 and 301, and subchapter I, part D

of the CAA do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal SIP approval does not impose any new requirements, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its action 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).

C. 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 approval 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 approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: August 13, 1998.

Laura Yoshii,

Acting Regional Administrator, Region IX.

[FR Doc. 98-22531 Filed 8-20-98; 8:45 am]

BILLING CODE 6560-50-P