06-5508. Revisions to the California State Implementation Plan, South Coast Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of a revision to the South Coast Air Quality Management District (District) portion of the California State Implementation Plan (SIP). This revision was proposed in the Federal Register on March 29, 2006. The revision adds qualifying electric generating facilities to the list of stationary sources that are allowed to use emission reduction credits from a bank of credits maintained by the District. We are approving the revision of a local District rule that was approved in 1996 under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Effective Date: This rule is effective on July 19, 2006.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2006-0281 for this action. The index to the docket is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Laura Yannayon, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA.

I. Proposed Action

On March 29, 2006 (71 FR 15656), EPA proposed to approve a revision of District Rule 1309.1, Priority Reserve Bank, into the California SIP.

Local agency	Rule number	Rule title	Adopted	Submitted
SCAQMD	1309.1	Priority Reserve	05/03/02	12/23/02

We proposed to approve this revision of Rule 1309.1 because we determined that the revision complied with the relevant CAA requirements. Our proposed action contains more information on the revised rule and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received two comment letters: one from Adams Broadwell Joseph & Cardozo on behalf of California Unions for Reliable Energy, Kristopher Johns and Donald Lee Selby, Jr. (hereinafter collectively “CURE”) and one from the District. We have prepared a separate detailed response to CURE's comment that is available in the final docket on this rulemaking. In this action, we are providing a summary of the comment and our response.

In summary, CURE commented that the revision of Rule 1309.1 does not ensure that emission reduction credits provided to qualifying electric generating facilities from the Priority Reserve fund will comply with the requirements of section 173(c) of the Clean Air Act. EPA disagrees with the comment. EPA approved Rule 1309.1 on December 4, 1996. 61 FR 64291 (December 4, 1996). In approving Rule 1309.1 in 1996, we determined that the District's implementation of a tracking system demonstrated that the Priority Reserve bank's emission reduction credits complied with the requirements of section 173(c). 61 FR 64292. CURE's comment that the Priority Reserve bank's emissions reduction credits should be reserved for use by essential public services rather than qualifying electric generating facilities seeks to overturn a policy decision that is within the discretion of the local permitting authority. In this instance, the District Board decided in 2002, following an electricity shortage, to provide banked emission reduction credits to qualifying electric generating facilities if credits were not otherwise available. The District's basis for its decision is set forth in its comment letter dated April 25, 2006, which is available in the docket. EPA's role is to determine whether the SIP revision meets the requirements of the CAA. The comment does not provide information showing that adding qualifying electric generating facilities to the list of sources eligible to use emission reduction credits from the Priority Reserve Fund does not satisfy the requirements of section 173(c).

III. EPA Action

CURE's comment letter has not changed our assessment that the District's revision of Rule 1309.1 complies with the relevant CAA requirements. The District's comment letter supports EPA's proposed action. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this revision of Rule 1309.1 into the California SIP.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves 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. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 August 18, 2006. 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
• Ozone
• Reporting and recordkeeping requirements

Dated: May 25, 2006.

Laura Yoshii,

Acting Regional Administrator, Region IX.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart F—California

2. Section 52.220 is amended by adding paragraphs (c)(311)(i)(A)(3) to read as follows:

§52.220

Identification of plan.

* * * * *

(c) * * *

(311) * * *

(i) * * *

(A) * * *

(3) Rule 1309.1, adopted on May 3, 2002.

* * * * *