[Federal Register Volume 64, Number 192 (Tuesday, October 5, 1999)]
[Proposed Rules]
[Pages 53973-53976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25835]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA083-0182; FRL-6452-2]
Clean Air Act Approval and Promulgation of New Source Review
Implementation Plan for El Dorado County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes three actions on rules submitted by El Dorado
Air Pollution Control District (District or EDCAPCD) for the purpose 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 to approve the following rules into State Implementation Plan
(SIP): Rule 501, General Permit Requirements; Rule 520, Enhanced
Monitoring and Compliance Certification; Rule 524, Emission Reduction
Credits; and Rule 525, Priority Reserve. Second, EPA proposes a limited
approval and limited disapproval of Rule 523, New Source Review.
Finally, EPA proposes to rescind from the SIP 36 District rules that
will be replaced by the rules mentioned above. All of these rules were
submitted by the State of California on behalf of the District as a
requested SIP revision to satisfy certain federal requirements for an
approvable NSR SIP.
DATES: EPA is requesting comments on all aspects of the requested SIP
revision and EPA's proposed rulemaking action. Comments on this
proposed action must be received in writing by November 4, 1999.
ADDRESSES: To submit comments or receive further information, please
contact Roger Kohn, Environmental Protection Specialist, Permits
Office, Air Division (AIR-3), EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105. Copies of the State's submittal and other
information are available for inspection during normal business hours
at the following locations: (1) EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105; (2) California Air Resources Board, 2020 L Street,
Sacramento, CA 95814; (3) El Dorado County Air Pollution Control
District, 2850 Fairlane Ct., Bldg. C, Placerville, CA 95667-4100. A
courtesy copy of these rules may be available via the Internet at
http://arbis.arb.ca.gov/drdb/ed/cur.htm. These versions of the District
rules, however, may be different from the versions submitted to EPA for
approval. Readers are cautioned to verify that the adoption date of the
rule listed is the same as the rule submitted to EPA for approval. The
official submittals are available only at the three addresses listed
above.
FOR FURTHER INFORMATION CONTACT: Roger Kohn, Permits Office, (AIR-3),
Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1238 E-mail: kohn.roger@epa.gov
SUPPLEMENTARY INFORMATION:
I. What Action is EPA Proposing?
A. Today's Proposed Actions
B. Limited Approval and Limited Disapproval of Rule 523
C. Full Approval of Rules 501, 520, 524, and 525
D. Recission of 36 Rules
E. 1982 NSR SIP Conditional Approval
II. Rule 523 Deficiencies
A. Offset Ratio for Severe Ozone Nonattainment Area
B. Offsetting Total Emissions
C. Incomplete BACT Definition
D. Exemption for Regulatory Compliance
E. Interpollutant Trading
III. How Did EPA Arrive at the Proposed Action?
IV. Administrative Requirements
A. Executive Order 12866
B. Executive Order 12875
C. Executive Order 13045
D. Executive Order 13084
E. Regulatory Flexibility Act
F. Unfunded Mandates
I. What Action is EPA Proposing?
A. Today's Proposed Actions
EPA's proposed actions on NSR rules submitted by the District are
summarized in Tables 1, 2, and 3 below.
Table 1.--EPA Proposes Approval
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Rule No. Rule title
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501.............................. General Permit Requirements.
520.............................. Enhanced Monitoring and Compliance
Certification.
524.............................. Emission Reduction Credits.
525.............................. Priority Reserve.
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Table 2.--EPA Proposes Limited Approval and Limited Disapproval
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Rule No. Rule title
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523.............................. New Source Review.
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Table 3.--EPA Proposes Rescission From SIP
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Rule No Rule title
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401 through 407.................. Various--refer to TSD.
410, 411
415, 416
418 through 425
501 through 508
510 through 513
515
517 through 519
521
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[[Page 53974]]
B. Limited Approval and Limited Disapproval of Rule 523
EPA is proposing limited approval and limited disapproval of El
Dorado County Air Pollution Control District (EDCAPCD) Rule 523, New
Source Review into the California SIP. This rule consists of
definitions and standards, including applicability, major source and
major modification definitions, offsets, and Best Available Control
Technology. EPA is proposing simultaneous limited approval and limited
disapproval of this rule because, while it strengthens the SIP, it also
does not fully meet the CAA provisions regarding plan submissions and
requirements for nonattainment areas. The deficiencies that are the
basis for our action are identified in section II below. A detailed
discussion of the rule deficiencies is included in the Technical
Support Document (TSD) for this rulemaking.
If our final action remains a limited approval and limited
disapproval, the action would constitute a disapproval under section
179(a)(2) of the Act (see 57 FR 13566-13567). As provided under section
179(a) of the Act, the District would have up to 18 months after a
final SIP disapproval to correct the deficiencies that are the subject
of the disapproval before EPA is required to impose sanctions. If the
District does not correct its SIP deficiencies within 18 months, then
section 179(a)(4) requires the immediate application of sanctions.
According to section 179(b), sanctions can take the form of a loss of
highway funds or a two to one emissions offset ratio. Once the
Administrator applies one of the section 179(b) sanctions, the State
will then have an additional six months to correct any deficiencies.
Section 179(a)(4) requires that both highway and offsets sanctions must
be applied if any deficiencies are still not corrected after the
additional six month period.
In addition, a final disapproval would trigger section 110(c)
provisions for federal implementation plans. Section 110(c) requires
EPA to promulgate a federal implementation plan within two years of
disapproving a state implementation plan submittal in whole or in part.
C. Full Approval of Rules 501, 520, 524, and 525
EPA is proposing to approve rules 501, 520, 524, and 525 into the
California SIP. Rule 501, General Permit Requirements, contains
procedures for the review of new stationary sources of air pollution
and the modification and operation of existing sources through the
issuance of permits. In addition to these substantive requirements, the
rule also contains twelve definitions and twelve exemptions. EPA has
reviewed the submitted rule for consistency with applicable
requirements of the Act. The standards and definitions in the rule are
consistent with the CAA and EPA regulations, and the rule does not
exempt any stationary sources that are subject to federal review under
the Act. Therefore, EPA proposes to approve Rule 501 into the SIP.
Rule 501 contains a provision that states that an Authority to
Construct (ATC) permit ``shall remain in effect until a permit to
operate the equipment is granted or denied or the application is
cancelled.'' The expiration of ATC permits upon issuance of permits to
operate (PTO) appears to conflict with EPA policy, which requires that
terms and conditions of ATCs remain in effect for the life of a
facility. While the EDCAPCD provision is not the approach favored by
EPA, we believe the District's rule is approvable because PTOs will
contain the same permanent, enforceable conditions that were in the
ATCs. EPA interprets the rule to mean that when a PTO is issued, all
substantive terms and conditions of the ATC permit must be incorporated
into the PTO. This includes, but is not limited to, emission limits,
and all monitoring, record-keeping, and reporting necessary to verify
compliance.
Since EPA views ATC terms and conditions as federally enforceable
(see section 113(b)(1) of the CAA and 40 CFR 52.23), these conditions
remain federally enforceable when they are incorporated into the PTO.
Rule 520, Enhanced Monitoring and Compliance Certification,
provides standards by which compliance with CAA requirements can be
determined. The rule allows the use of any credible evidence, including
but not limited to EPA or EPA-approved reference test methods,
compliance assurance monitoring pursuant to 40 CFR part 64, and
periodic monitoring associated with part 70 federal operating permits,
to be used to demonstrate compliance with federally enforceable permit
conditions. This rule contains language recommended by EPA in a May 16,
1994 SIP-call. Since the rule submittal was responsive to the SIP-call
and satisfies the requirements of sections 110, 113, and 114 of the
CAA, EPA proposes approval into the SIP.
Rule 524, Emission Reduction Credits, allows the District to
quantify, adjust, and certify surplus emission reductions for later use
as offsets. This rule relates to new source review because these
credits can be obtained by new sources and used as offsets. Rule 524
satisfies EPA criteria that all emission reductions used as offsets be
real, surplus, quantifiable, enforceable and permanent.
Rule 525, Priority Reserve, is a mechanism to provide loans of
emission reductions for essential public services (publicly owned and
operated sources such as sewage treatment plants). The rule requires,
pursuant to Rule 524 (Emission Reduction Credits), that all offsets in
the Priority Reserve bank be real, enforceable, quantifiable, and
permanent. Therefore Rule 525 is consistent with CAA requirements and
EPA policy and EPA proposes approval into the SIP.
D. Recission of 36 Rules
On April 26, 1994, EDCAPCD repealed 43 rules and adopted four new
rules to replace them. Thirty-six of the repealed rules remained
federally enforceable because they are still in the El Dorado County
SIP. In its May 24, 1994 submittal to EPA, the California Air Resources
Board (CARB) requested that EPA rescind the repealed rules from the
SIP. The repealed rules, which are no longer enforced by the District,
constituted EDCAPCD's stationary source permitting program at the time
they were approved into the SIP in 1982 and 1983. After the 1990 CAA
amendments, however, the District substantially revised its rules to
include the substantive nonattainment new source review requirements
mandated by the 1990 amendments. The rules that EPA is proposing to
rescind from the SIP have been replaced by the more stringent rules
proposed for approval and limited approval today. Thus, EPA has
determined that the recission of the 36 repealed rules is approvable
because they are being replaced in the SIP by more stringent rules that
satisfy requirements mandated by the 1990 amendments. A summary
document that shows how the repealed rules correspond to the more
stringent rules that supercede them is included in the docket for this
rulemaking.
E. 1982 NSR SIP Conditional Approval
In a 1982 final rulemaking action (47 FR 29536, July 7, 1982), EPA
conditionally approved the nonattainment area plan (NAP) for the
Mountain Counties Air Basin, which includes El Dorado County. As a
result of that action, 40 CFR 52.232 was amended to require El Dorado
County to revise its NSR rules by October 30, 1985 in order to correct
deficiencies identified at the time. Today, we propose to delete from
40 CFR part 52
[[Page 53975]]
the requirement that the District correct NSR rule deficiencies
identified when EPA finalized the District's NSR rules in 1982 for the
following reasons:
The current rules will, upon final approval, supercede the
rules submitted in 1981.
EPA has not taken action on any revisions to EDCAPCD NSR
rules.
EPA has not done a final rulemaking to correct the
deficiencies of EDCAPCD NSR rules discussed in the July 7, 1982 final
rulemaking.
The District has revised and submitted new NSR rules to
comply with the 1990 CAA amendments.
II. Rule 523 Deficiencies
A. Offset Ratio for Severe Ozone Nonattainment Area
Section 523.3.C: This section allows an offset ratio of 1.2 to 1.0
for nonattainment pollutants if the offset is located within a 15-mile
radius and within the District. Most of El Dorado County was designated
as severe nonattainment for ozone in 1995. Section 182(d)(2) of the CAA
requires offset ratios of at least 1.3 to 1.0 for such areas, unless
the SIP requires all existing major sources in the nonattainment area
to apply Best Available Control Technology (BACT). Since the EDCAPCD
SIP does not contain such a provision, the District must revise the
ratio to comply with the CAA requirement.
B. Offsetting Total Emissions
Section 523.3.B: This section contains offset thresholds, and
requires new or modified sources to offset emissions that exceed these
thresholds. Section 173(c)(1) of the CAA requires that the total
tonnage of increased emissions be offset, not just the amount of
emissions that exceed the threshold. Accordingly, the District must
revise the rule to satisfy this federal requirement. The District could
do this by either revising the rule to require that all new and
modified sources that exceed federal offset thresholds offset down to
zero, or by tracking offsets and demonstrating on an on-going basis
that the implementation of Rule 523 creates a quantity of offsets that
meets or exceeds CAA requirements.
C. Incomplete BACT Definition
Section 523.2.G: The definition of BACT in this section does not
include the most stringent emissions limitation ``which is contained in
the implementation plan of any State for such class or category of
stationary source, unless the owner or operator of the proposed
stationary source demonstrates that such limitations are not
achievable.'' (40 CFR 51.165(a)(xiii)) This provision must be added to
the definition.
D. Exemption for Regulatory Compliance
Section 523.1.G: This section allows an exemption from NSR for
modifications that are necessary to comply with District prohibitory
rules. This exemption for regulatory compliance, as written, is not
allowed by the Clean Air Act. This provision must be either deleted or
revised to be consistent with EPA policy that allows exemptions for
pollution control projects if certain substantive and procedural
criteria are satisfied. (The policy is described in a July 1, 1994
memorandum entitled ``Pollution Control Projects and New Source Review
(NSR) Applicability'', included in the docket for this rulemaking.)
Under this policy, the District could exempt such projects, provided
that they are environmentally beneficial and do not cause or contribute
to a violation of a national ambient air quality standard, or PSD
increment, or adversely affect an air quality related value in a Class
1 area.
E. Interpollutant Trading
Section 523.3.D: This section allows interpollutant offsets
(trading among different precursors to the same secondary pollutant),
and must either be removed or revised. There are no provisions
addressing interpollutant trading in the CAA or EPA regulations. The
CAA and EPA regulations provide only for trading (offsets) of the same
pollutant. EPA has considered the approvability of interpollutant
trading if certain criteria are met. If the District wishes to retain
this provision, the District must revise the rule to require adequate
modeling to determine the appropriate offset ratio, public
notification, and EPA concurrence for all interpollutant trades.
III. How Did EPA Arrive at the Proposed Action?
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the Clean Air Act. 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 observe 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 provide 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 provides that plan provisions for
nonattainment areas shall meet the applicable provisions of Section
110(a)(2).
Rules 501, 523, 524, and 525 were adopted by the District Board of
Directors on April 26, 1994. On that date, the District also repealed
36 rules that are in the EDCAPCD SIP. The newly adopted rules, along
with a request to rescind the repealed rules from the SIP, were
subsequently submitted by CARB to EPA as proposed revisions to the
California SIP on May 24, 1994. Rule 520 was adopted by the District on
June 27, 1995, and submitted by CARB to EPA as a SIP revision on
October 13, 1995. The submitted rules, which are new additions to the
SIP, constitute the District's New Source Review permitting
regulations.
Most of El Dorado County, except for that portion within the Lake
Tahoe basin, is included in the Sacramento Metro Area, which is
currently designated as severe nonattainment for ozone. For all other
pollutants, the County is designated as attainment or unclassifiable
with respect to the NAAQS. District NSR rules therefore apply to all
new or modified stationary sources proposing to emit VOC or NOx in the
nonattainment area. The nonattainment provisions must also apply to any
source which would contribute to a violation of the NAAQS. The Clean
Air Act requirements are found at sections 172 and 173 for
nonattainment NSR permitting. With certain exceptions, described in
section II above, the District's submittal satisfies these
requirements. For a detailed description of how the submitted rule
meets the applicable requirements, please refer to EPA's technical
support document (TSD).
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.
[[Page 53976]]
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
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 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, Nitrogen dioxide, Particulate matter, Carbon monoxide,
Reporting and recordkeeping requirements, Sulfur dioxide, Volatile
organic compounds.
Dated: September 17, 1999.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 99-25835 Filed 10-4-99; 8:45 am]
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