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 022-0196; FRL-6480-7]

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.

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SUMMARY: EPA is proposing a disapproval of revisions to the

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

potential exemption of sources from applicable emission limits

contained in certain source category specific rules when excess

emissions occur during facility start-up and shutdown. 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 December 9, 1999.

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 (the

Technical Support Document, or TSD, dated November 9, 1999) 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,

S.W., Washington, D.C. 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 429--Startup and Shutdown Exemption

Provisions for Oxides of Nitrogen. Rule 429 was submitted to EPA by the

SCAQMD on January 28, 1992.

II. Background

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

Quality Management District (SCAQMD) Rule 429--Startup and Shutdown

Exemption Provisions for Oxides of Nitrogen. SCAQMD adopted Rule 429 on

December 21, 1990, and submitted it to EPA on January 28, 1992. Rule

429 was found to be complete on April 3, 1992, pursuant to EPA's

completeness criteria that are set forth in 40 CFR Part 51 Appendix V

1.

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\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).

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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 Clean Air Act (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 occurring during start-up and

shutdown is contained in a memorandum dated September 20, 1999,

entitled ``State Implementation Plans: Policy Regarding Excess

Emissions During Malfunctions, Start-up, and Shutdown'' (the Excess

Emissions Policy). 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 429--Startup and Shutdown Exemption Provisions

for Oxides of Nitrogen in the SIP. The submitted rule includes the

following provisions:

Definitions of various terms used in the rule.

General provisions establishing the applicability of the

rule and requiring that facilities seeking relief under Rule 429

mitigate emissions to the extent practicable.

Time limits on start-up and shutdown intervals and a

maximum number of scheduled start-ups/shutdowns per year for each

affected source category.

Provisions describing the notification and recordkeeping

requirements for facilities seeking relief under Rule 429.

SCAQMD Rule 429 requires that facilities seeking exemption for

excess emissions give prior notification of scheduled start-ups and

shutdowns. Exemptions are allowed only for excess emissions that occur

during scheduled start-ups and shutdowns for which notification is

given. Rule 429 also requires that records of certain process variables

be maintained and kept on-site for a period of two years.

Under Section 110(l) of the CAA, EPA may not approve a SIP revision

``if the revision would interfere with any applicable requirement

concerning attainment and reasonable further progress, or any other

applicable requirement of [the Act].'' This provision serves to ensure

that the State, in seeking a revision to its SIP, does not impair its

compliance with the statutory mandates applicable to the SIP. One such

requirement is Section 172(c)(1), which mandates that SIP provisions

implement reasonably available control technology (RACT).

In order to clarify which excess emissions provisions are

approvable as SIP revisions under the CAA, and to provide guidance to

States and local air districts, the Agency recently reissued its

policy. The Excess Emissions Policy states that EPA may approve SIP

revisions providing source-category specific exemptions for excess

emissions that occur during start-up and shutdown periods only if the

source's control strategy is such that compliance with otherwise

applicable emission limits is technologically infeasible during these

periods. The policy also requires that the frequency and duration of

the excess emissions be minimized to the maximum extent practicable.

These requirements are based on Sections 110(l) and 172(c)(1) and are

meant to ensure that the excess emissions provisions do not interfere

with attainment, maintenance, or other applicable requirements.

The SCAQMD Staff Report (dated October 30, 1990) that provides the

technical basis for Rule 429 fails to establish the technological

necessity of the exemptions and, further, does not demonstrate that the

exemption periods have been minimized. The source category specific

rules from which Rule 429 provides exemption implement RACT for sources

in those source categories. Therefore, exemption from those rules is

allowable under Section 172(c)(1) only when the otherwise reasonably

available control technologies are not reasonably available during

start-up and shutdown. Further, in keeping with Section 110(l) of the

CAA, EPA may approve into the SIP exemptions such as those provided

under Rule 429 only if they do not interfere with attainment or

maintenance. If Rule 429 excused only those excess emissions that are

technologically unavoidable, then the Rule would be less likely to

interfere with attainment. However, Rule 429 fails to include such a

limitation.

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An additional deficiency of Rule 429 is that it contains vague or

contradictory language that makes it unclear when otherwise applicable

emission limits would apply to a given source. These instances include

sections (a)(5) and (b)(3) of the rule and are detailed in the TSD.

Section 110(a)(2)(A) of the CAA requires that the emissions limitations

included in SIPs be enforceable. Thus, Rule 429 violates Section

110(a)(2)(A) of the CAA and is not an approvable SIP revision.

In conclusion, 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 429 is deficient because it does not

maintain or strengthen the SIP, and because its vague or contradictory

language renders it unenforceable. SCAQMD Rule 429, if approved, would

exempt certain sources from applicable emissions limits contained in

the SIP. The CAA and EPA policy, under certain circumstances, allow for

such exemptions. However, the exemptions provided by Rule 429 are not

sufficiently limited and could result in exempted emissions that might

threaten the NAAQS, PSD increments, or other air quality standards.

Thus the submitted Rule 429 would, if approved, weaken the SIP. A more

detailed discussion of EPA's evaluation of SCAQMD Rule 429 can be found

in the TSD.

Because of the identified deficiencies, EPA cannot grant approval

of SCAQMD Rule 429 under section 110(k)(3) and part D. Therefore, in

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

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 Order 12866

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

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 13132

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.

Thus, the requirements of section 6 of the Executive Order do not apply

to this rule.

C. Executive Order 13045

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 E.O.

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 E.O. 13045 because it is

does not involve decisions intended to mitigate environmental health or

safety risks.

D. 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 Office of Management and Budget, 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 rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this 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 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 approve 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

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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

annual 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 promulgated does not

include a Federal mandate that may result in estimated annual 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

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: November 12, 1999.

Laura Yoshii,

Deputy Regional Administrator, Region IX.

[FR Doc. 99-30613 Filed 11-23-99; 8:45 am]

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