[Federal Register Volume 63, Number 162 (Friday, August 21, 1998)]
[Proposed Rules]
[Pages 44820-44822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22531]
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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.
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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
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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 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]
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