Revisions to the California State Implementation Plan, South Coast Air Quality Management District, 241-244 [06-56]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Rules and Regulations]
[Pages 241-244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-56]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2005-CA-0015; FRL-8010-7]


Revisions to the California State Implementation Plan, South 
Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of a revision to the South Coast 
Air Quality Management District (SCAQMD) portion of the California 
State Implementation Plan (SIP). This revision was proposed in the 
Federal Register on June 14, 2005 and concerns particulate matter (PM) 
and ammonia emissions from fluid catalytic cracking units (FCCUs) at 
oil refineries. We are approving a local rule that regulates these 
emission sources under the Clean Air Act as amended in 1990 (CAA or the 
Act).

DATES: This rule is effective on February 3, 2006.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2005-CA-0015 
for this action. The index to the docket is available electronically at 
https://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: Yvonne Fong, EPA Region IX, (415) 947-
4117, fong.yvonnew@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On June 14, 2005 (70 FR 34435), EPA proposed to approve the 
following rule into the California SIP.

----------------------------------------------------------------------------------------------------------------
             Local agency                Rule No.            Rule title               Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD................................     1105.1  Reduction of PM10 and Ammonia        11/07/03        06/03/04
                                                    Emissions from Fluid
                                                    Catalytic Cracking Units.
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[[Page 242]]

    We proposed to approve this rule because we determined that it 
complied with the relevant CAA requirements. Our proposed action 
contains more information on the 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 comments from the following party.
    1. Gregory R. McClintock, Western States Petroleum Association 
(WSPA); letter dated July 14, 2005 and received July 14, 2005 by 
electronic mail.
    The comments and our responses are summarized below.
    Comment #1: WSPA commented that sufficient opportunity for public 
comment was not provided by our June 14, 2005 proposal. WSPA requested 
an extension of the original 30-day public comment period and an 
opportunity to consult with EPA. WSPA asserted that Sec.  6(a)(1) of 
Executive Order No. 12866 provides for ``the involvement of * * * those 
expected to be burdened by any regulation'' and a ``meaningful 
opportunity to comment'' of no less than 60 days.
    Response #1: The application of the 60-day public comment period 
provision in Sec.  6(a)(1) of Executive Order No. 12866 is not 
appropriate to this action because this action merely approves state 
law as meeting Federal requirements and imposes no additional 
requirements beyond those imposed by state law. It is also not 
appropriate for EPA to invite consultation on a state law. The state, 
in this case, the SCAQMD, has the authority under California Health and 
Safety Code Sec. Sec.  40000 and 40001 to adopt rules and regulations 
to achieve and maintain the federal ambient air quality standards. 
Furthermore, the SCAQMD satisfied the ``meaningful opportunity to 
comment'' intent of Executive Order 12866 during its rulemaking 
process. When the SCAQMD began developing Rule 1105.1 in January 2002, 
it ensured significant participation from industry through the 
establishment and meetings of the Refinery Working Group. The rule was 
ultimately made available to the public and other interested parties on 
September 2, 2003, more than 60 days in advance of the November 7, 2003 
Board Hearing to adopt Rule 1105.1. WSPA has been actively litigating 
the regulation of oil refineries with the SCAQMD and should not have 
required more than the standard 30-day comment period EPA makes 
available for this type of rulemaking action to submit comments to us 
on this rule.
    Comment #2: WSPA commented that Rule 1105.1 is currently being 
litigated in the Second District Court of Appeal for the State of 
California. WSPA anticipates that Rule 1105.1 will be vacated by the 
Court on the grounds that compliance with the rule is unachievable, 
that a more viable option for regulating this source category exists, 
and that the requirements of California Health and Safety Code 
Sec. Sec.  40440(b)(1), 40405, 40406; Civil Code Sec.  3531 have 
ultimately not been met. WSPA contends that EPA approval of Rule 1105.1 
into the SIP at this time would interfere with the State Court of 
Appeal's jurisdiction and implicate the issues of federalism set forth 
in Executive Order No. 13132, thereby also requiring Agency submission 
of a federalism summary impact statement to the Director of the Office 
of Management and Budget (OMB).
    Response #2: EPA believes that it is inappropriate to disapprove or 
delay approval of a SIP revision merely on the basis of pending state 
court challenges. To do so would allow parties to impede SIP 
development merely by initiating litigation. Alternatively, were EPA 
required to assess the validity of a litigant's state law claims in the 
SIP approval process, EPA would have to act like a state court, in 
effect weighing the competing claims of a state and a litigant. 
Therefore, EPA does not interpret CAA section 110(a)(2) to require the 
Agency to make such judgments in the SIP approval process, especially 
where the validity of those challenges turns upon issues of state law. 
Moreover, EPA believes that the structure of the CAA provides 
appropriate mechanisms for litigants to pursue their claims and 
appropriate remedies in the event that they are ultimately successful. 
See Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 
(7th Cir. 1983) (State court invalidation of a SIP provision resulted 
in an unenforceable SIP provision which the state had to reenact or 
which EPA may use as the basis for a SIP call).
    With regard to the possibility of a more viable option for 
regulating the FCCUs covered by Rule 1105.1, EPA is prohibited by CAA 
section 110(a)(2) from considering the economic or technological 
feasibility of the provisions of rules submitted for approval as a SIP 
revision. Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976). As 
noted by the Supreme Court, it is the province of state and local 
authorities to determine whether or not to impose limits that may 
require technology forcing measures. EPA must assess the SIP revision 
on the basis of the factors set forth in CAA section 110(a)(2) which do 
not provide for the disapproval of a rule into a SIP based upon 
economic or technological infeasibility.
    EPA's action does not interfere with the State Court of Appeal's 
jurisdiction or implicate the issues of federalism set forth in 
Executive Order No. 13132 because, as discussed above, this action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Federalism, as defined in Sec.  2(a) of Executive Order No. 13132, ``is 
rooted in the belief that issues that are not national in scope or 
significance are most appropriately addressed by the level of 
government closest to the people.'' With this action, EPA is affirming 
the states' ``unique authorities, qualities, and abilities to meet the 
needs of the people'' and is deferring to the state's ``policymaking 
discretion'' to adopt rules and regulations to achieve and maintain the 
federal ambient air quality standards. This action does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. See, Executive Order No. 13132 
Sec. Sec.  2(e) and 2(i). Agency submission of a federalism summary 
impact statement to the Director of OMB is, therefore, not necessary or 
appropriate.
    Comment #3: WSPA refuted the Agency's determination that the 
completeness criteria in 40 CFR part 51 Appendix V have been met 
because Sec.  2.1(c) of Appendix V requires that the state have ``the 
necessary legal authority under State law to adopt and implement the 
plan.'' As discussed in Comment 2, WSPA claims the state does 
not have the authority to adopt and implement Rule 1105.1 because it 
did not satisfy the California Health and Safety Code Sec. Sec.  
40440(b)(1), 40405, 40406; Civil Code Sec.  3531 requirement of 
achievable compliance. WSPA also contends that the state submittal of 
Rule 1105.1 is not complete because SCAQMD failed to meet recordkeeping 
requirements in Sec.  40728 of the California Health and Safety Code 
and other procedural requirements of the California Environmental 
Quality Act (CEQA).
    Response #3: As stated in Responses 1 and 2 
above, the SCAQMD has authority under California Health and Safety Code 
Sec. Sec.  40000 and 40001 to adopt rules and regulations to achieve 
and maintain the federal ambient air quality standards and, pursuant to 
Agency interpretation of CAA section 110(a)(2), EPA cannot delay the 
SIP development process by awaiting the Second District Court of 
Appeal's

[[Page 243]]

judgment on this issue. With their submission of Rule 1105.1, SCAQMD 
and CARB attested that Rule 1105.1 meets the requirements in the 
California Health and Safety Code and CEQA. EPA generally defers to the 
state and local agencies in their interpretation of state requirements. 
The lower Court upheld the state and local agencies' submission of Rule 
1105.1 as meeting those requirements and we see no obvious reasons to 
question the state and local agencies' determination that Rule 1105.1 
complies with the applicable state requirements.
    Comment #4: WSPA postulated that implementation of the requirements 
contained in Rule 1105.1 would result in more frequent maintenance and 
shutdowns of FCCUs. WSPA, therefore, asserted that approval of Rule 
1105.1 into the SIP should be considered a ``significant regulatory 
action'' within the meaning of Sec.  3(f)(1) of Executive Order No. 
12866 and a ``significant energy action'' within the meaning of Sec.  
4(b)(1)(ii) of Executive Order No. 13211 because the rule would 
interfere with the supply of gasoline and other petroleum products, 
increase the cost of these products, and adversely affect competition, 
productivity and job availability at refineries. Furthermore, as a 
``significant regulatory action'' and ``significant energy action,'' 
EPA should submit additional information, including a ``Statement of 
Energy Effects,'' and obtain approval from the Office of Information 
and Regulatory Affairs (OIRA) pursuant to Sec. Sec.  6(a)(3)(B)-(C) and 
8 of Executive Order No. 12866 and Sec.  3 of Executive Order No. 
13211.
    Response #4: As discussed in Response 1, this action does 
not impose any additional requirements beyond those imposed by state 
law because it merely approves state law as meeting Federal 
requirements. Approval of Rule 1105.1 into the SIP does not create any 
added Federal requirements. Executive Order Nos. 12866 and 131211, are 
applicable Federal agencies, not States; therefore, the requirements to 
submit additional documents to and obtain approval from OIRA are not 
germane to this action.
    Comment #5: WSPA commented that Rule 1105.1 is not enforceable as 
asserted in our June 14, 2005 proposed rulemaking because compliance 
with the requirements of Rule 1105.1 are unachievable. WSPA claimed 
that the proposed rule failed to address what is meant by enforceable.
    Response #5: The feasibility of rules submitted for approval as a 
SIP revision is discussed in Response 2 and is not germane to 
CAA enforceability requirements. EPA maintains, as stated in our 
proposed rulemaking, that Rule 1105.1 is enforceable and that the 
criteria upon which this enforceability determination were made are 
clearly outlined under the section entitled ``How is EPA Evaluating the 
Rule'' at 70 FR 34436.
    Comment #6: WSPA commented that the requirements of Rule 1105.1 
rely on incorrect expectations regarding the availability, efficacy, 
and reliability of various control technologies, including dry and wet 
ESPs, wet gas scrubbers, sulfur oxide reducing agents, and selective 
catalytic and non-catalytic reduction.
    Response #6: See the discussion in Response 2 regarding 
the economic or technological feasibility of provisions of rules 
submitted for approval as a SIP revision.

III. EPA Action

    No comments were submitted that change our assessment that the 
submitted rule complies with the relevant CAA requirements. Therefore, 
as authorized in section 110(k)(3) of the Act, EPA is fully approving 
this rule into the California SIP.
    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 March 6, 2006.

[[Page 244]]

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, Ozone, Particulate Matter, 
Reporting and recordkeeping requirements.

    Dated: December 5, 2005.
Wayne Nastri,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(331) (i)(B)(2) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (331) * * *
    (i) * * *
    (B) * * *
    (2) Rule 1105.1, adopted on November 7, 2003.
* * * * *
[FR Doc. 06-56 Filed 1-3-06; 8:45 am]
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