03-20426. Revisions to the California State Implementation Plan, Great Basin Unified Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action on revisions to the California State Implementation Plan (SIP). Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), we are approving local rules that concern permitting of sources that have the potential to emit above major source thresholds but do not actually emit pollutants at those levels.

DATES:

These revisions are effective on October 10, 2003 without further notice, unless EPA receives adverse comments by September 10, 2003. If EPA receives such comment, we will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES:

Mail comments to Gerardo Rios, Permits Office Chief (AIR-3), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105; [e-mail].

You can inspect copies of the submitted rule 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 rule revisions at the following locations:

Permits Office (AIR-3), Air Division, Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.

Great Basin Unified Air Pollution Control District, 157 Short Street, Bishop, CA 93514.

A copy of the rules may also be available via the Internet at http://www.arb.ca.gov/​drdb/​drdbltxt.htm. Please be advised that this is not an EPA website and may not contain the same version of the rule that was submitted to EPA.

FOR FURTHER INFORMATION CONTACT:

David Wampler, Permits Office, (Air-3), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105; [phone].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. The State's Submittal

A. What rules did the State submit?

B. Are there other versions of these rules?

C. What are the provisions in the submitted rules?

II. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

B. Do the rules meet the evaluation criteria?

C. EPA recommendations to further improve the rules

D. Public comment and final action

III. Background information

Why were these rules submitted?

IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

TABLE 1.—Submitted Rules

Local agency	Rule No.	Rule title	Adopted	Submitted
GBUAPCD	218	Limiting Potential to Emit	12/04/95	05/10/96
GBUAPCD	219	Request for Synthetic Minor Status	12/04/95	05/10/96

On July 19, 1996, the submittal of Rules 218 and 219 were found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

B. Are There Other Versions of These Rules?

There are no previous versions of Rules 218 and 219 in the SIP.

C. What Are the Provisions in the Submitted Rules?

Rule 218 includes the following significant provisions:

• The owner or operator of a specified stationary source, that would otherwise be designated a major source because the potential to emit exceeds the major-source threshold for regulated pollutants, would be allowed under Rule 218 to avoid being subject to Title V, federal permitting requirements, if the actual annual emissions do not exceed any of the following emission limitations: (1) 50 percent of the major-source thresholds for regulated air pollutants excluding hazardous air pollutants (HAPs), or (2) 5 tons per year of a single HAP, or (3) 12.5 tons per year of any combination of HAPs, or (4) 50 percent of any lesser threshold for a single HAP as the EPA may establish as a rule.
• There are also alternate operational limitations for specific stationary sources that may be used provided that at least 90 percent of the source's total emissions in every 12-month period are associated with the sources with the operational limitations.
• There are detailed recordkeeping and reporting requirements to assure compliance with the emission limitations and operational limitations.

Rule 219 includes the following significant provisions:

• The owner or operator of a specified stationary source, that would otherwise be a major source, would be allowed to request and accept federally-enforceable limits such that the annual potential to emit would be below major-source thresholds in order to allow the source to be considered a “synthetic minor source.”
• The limits to the potential to emit must be approved by EPA and must be permanent, quantifiable, and practically enforceable.
• A synthetic minor source would not be subject to the permitting requirements of Rule 217, Title V-Federal Operating Permits or of Title V of the CAA. The TSDs have more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

In combination with the other requirements, the rules in today's action must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193). These rules were also evaluated using EPA policy describing options sources have for limiting their potential to emit under section 112 and Title V of the CAA. This policy is generally described in a January 25, 1995 policy memorandum entitled, Options for Limiting the Potential to Emit of a Stationary Source Under Section 112 and Title V of the Clean Air Act from John Seitz, Director of EPA's Office of Air Quality Planning and Standards, to EPA's Regional Air Division Directors. Rule 218 was compared to a model California prohibitory rule contained in the January 25, 1995 policy memorandum.

Rule 219 was also compared to EPA guidance on establishing a synthetic-minor operating-permits program published on June 28, 1989 (54 FR 27247). Permits issued pursuant to this voluntary program that meet the June 28, 1989 criteria are considered federally enforceable for criteria pollutants. The synthetic minor mechanism may also be used to create emission limits for emission of hazardous air pollutants (HAPs), if it is approved pursuant to section 112(l) of the CAA. In short, a program to create federally-enforceable limits on a source's potential to emit should:

• Be approved by EPA into the SIP.
• Impose legal obligations for operating permit holders to adhere to permit limitations.
• Provide for limits that are enforceable as a practical matter.
• Have permits issued in a process that provides the opportunity for review and comment by the public and EPA.
• Ensure that there is no relaxation of otherwise applicable Federal requirements.

B. Do the Rules Meet the Evaluation Criteria?

We believe that these rules are generally consistent with the relevant policy and guidance regarding enforceability and SIP relaxations and with EPA policy describing options sources have for limiting their potential to emit under section 112 and Title V of the CAA. Rule 219 is consistent with EPA criteria published on June 28, 1989 (54 FR 27247) for approving and incorporating into the SIP synthetic-minor federally-enforceable state operating permits. The TSDs have more information on our evaluation.

C. EPA Recommendations to Further Improve the Rules

The TSDs describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

D. Public Comment and Final Action

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed rule section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by September 10, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 10, 2003. This will incorporate these rules into or rescind rules from the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Background Information

Why Were These Rules Submitted?

Sections 172 and 173 of the CAA require that Title V permits be obtained for affected sources, major sources, and any sources required by parts C and D of the CAA. If certain sources could limit their potential to emit to below major-source thresholds or satisfy synthetic minor-source requirements, they would not be required to obtain a Title V permit. CARB submitted administrative rules to support these actions for qualified sources.

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 (Pub. L. 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. section 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. section 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 October 10, 2003. 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
• Incorporation by reference
• Intergovernmental relations
• Permitting
• Reporting and recordkeeping requirements

Dated: June 12, 2003.

Alexis Strauss,

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 paragraph (c)(231)(i)(E) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(231) * * *

(i) * * *

(E) Great Basin Unified Air Pollution Control District.

(1) Rules 218 and 219, adopted on December 4, 1995.

* * * * *