Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District, 41826-41829 [E9-19856]
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41826
Federal Register / Vol. 74, No. 159 / Wednesday, August 19, 2009 / Proposed Rules
In addition, this proposed rule does
not have tribal implications as specified
by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon
monoxide, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, and
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 31, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9–19858 Filed 8–18–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2009–0024; FRL–8943–7]
Revisions to the California State
Implementation Plan, San Joaquin
Valley Unified Air Pollution Control
District
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing a limited
approval and limited disapproval of
revisions to the San Joaquin Valley
Unified Air Pollution Control District
portion of the California State
Implementation Plan. These revisions
concern a local fee rule that applies to
major sources of volatile organic
compound and nitrogen oxide
emissions within the San Joaquin Valley
ozone nonattainment area. We are
proposing action on a local rule that
regulates these emission sources under
the Clean Air Act as amended in 1990.
We are taking comments on this
proposal and plan to follow with a final
action.
DATES: Any comments must arrive by
September 18, 2009.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2009–0024, by one of the
following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
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Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through https://
www.regulations.gov or e-mail. https://
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Docket: The index to the docket for
this action 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: Mae
Wang, EPA Region IX, (415) 947–4124,
wang.mae@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. The State’s Submittal
A. What Rule did the State Submit?
B. What Is the Purpose of the Submitted
Rule?
C. Why Was This Rule Submitted?
II. EPA’s Evaluation and Action
A. How Is EPA Evaluating the Rule?
B. Does the Rule Meet the Evaluation
Criteria?
C. What Are the Rule Deficiencies?
D. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What Rule Did the State Submit?
The San Joaquin Valley Unified Air
Pollution Control District (SJVUAPCD)
adopted Rule 3170, Federally Mandated
Ozone Nonattainment Fee, on May 16,
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2002. This rule was submitted by the
California Air Resources Board (CARB)
on August 6, 2002, for incorporation
into the California State Implementation
Plan (SIP). On August 30, 2002, this rule
submittal was found to meet the
completeness criteria in 40 CFR Part 51,
Appendix V.
B. What Is the Purpose of the Submitted
Rule?
SJVUAPCD Rule 3170 requires certain
major stationary sources of volatile
organic compounds (VOCs) and
nitrogen oxides (NOX) in the San
Joaquin Valley ozone nonattainment
area to pay a fee to the SJVUAPCD if the
area fails to attain the 1-hour national
ambient air quality standard (NAAQS)
for ozone by its Federally established
attainment date. The fee must be paid
for each calendar year after the
attainment year until the area is
redesignated to attainment of the 1-hour
ozone standard.
C. Why Was This Rule Submitted?
Under sections 182(d)(3), (e), and 185
of the Clean Air Act as amended in 1990
(CAA or the Act), States are required to
adopt an excess emissions fee regulation
for ozone nonattainment areas classified
as severe or extreme. The 1-hour ozone
NAAQS classification for the San
Joaquin Valley area is extreme (see 69
FR 20550, April 16, 2004). Although
EPA has revoked the 1-hour ozone
NAAQS (69 FR 23951, April 30, 2004),
Section 185 requirements still apply for
1-hour ozone non-attainment areas
(South Coast Air Quality Management
District v. EPA, 472 F.3d 882, DC Cir.
2006). The fee regulation specified by
the Act requires major stationary
sources of VOCs in the nonattainment
area to pay a fee to the State if the area
fails to attain the standard by the
attainment date set forth in the Act.
Section 182(f) of the Act requires States
to apply the same requirements to major
stationary sources of NOX as are applied
to major stationary sources of VOCs.
Emissions of VOCs and NOX play a role
in producing ground-level ozone and
smog, which harm human health and
the environment. SJVUAPCD Rule 3170
applies to major sources of both NOX
and VOCs.
II. EPA’s Evaluation and Action
A. How Is EPA Evaluating the Rule?
Generally, SIP rules must be
enforceable (see section 110(a) of the
Act), and must not relax existing
requirements (see sections 110(l) and
193). Rule 3170 was evaluated for
compliance with the requirements in
CAA section 185. The rule was also
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evaluated for consistency with the CAA
and EPA’s general SIP policies, as well
as a March 21, 2008, memorandum from
William Harnett, Director of the Air
Quality Policy Division, to the Regional
Air Division Directors, entitled,
‘‘Guidance on Establishing Emissions
Baselines under Section 185 of the
Clean Air Act (CAA) for Severe and
Extreme Ozone Nonattainment Areas
that Fail to Attain the 1-hour Ozone
NAAQS by their Attainment Date.’’
Guidance and policy documents that we
use to help evaluate specific
enforceability requirements typically
include the following:
1. ‘‘Issues Relating to VOC Regulation
Cutpoints, Deficiencies, and
Deviations’’, EPA, May 25, 1988 (the
Bluebook).
2. ‘‘Guidance Document for Correcting
Common VOC & Other Rule
Deficiencies’’, EPA Region 9, August 21,
2001 (the Little Bluebook).
3. ‘‘State Implementation Plans;
Nitrogen Oxides Supplement to the
General Preamble; Clean Air Act
Amendments of 1990 Implementation of
Title I; Proposed Rule’’, (the NOX
Supplement), 57 FR 55620, November
25, 1992.
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B. Does the Rule Meet the Evaluation
Criteria?
Rule 3170 improves the SIP by
establishing an excess emissions fee
regulation. Portions of the rule are
consistent with the CAA, as well as
relevant policy and guidance regarding
enforceability and SIP relaxations. Rule
provisions which do not meet the
evaluation criteria are summarized
below.
C. What Are the Rule Deficiencies?
The following provisions conflict
with section 185 of the Act and prevent
full approval of the SIP revision:
Section 4.2 of SJVUAPCD Rule 3170
exempts units that begin operation after
the attainment year. CAA Section 185
does not provide for an exemption for
emission units that begin operation after
the attainment year, so this exemption
does not fully comply with the CAA.
Rather, it requires ‘‘each major source’’
to pay the fee. See CAA section 185(a).
Section 4.3 exempts any ‘‘clean
emission unit’’ from the requirements of
the rule. Section 3.6 defines a clean
emission unit as a unit that is equipped
with an emissions control technology
that either has a minimum 95% control
efficiency (or 85% for lean-burn internal
combustion engines), or meets the
requirements for achieved-in-practice
Best Achievable Control Technology as
accepted by the APCO during the 5
years immediately prior to the end of
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the attainment year. The District’s staff
report for Rule 3170 states that the
exemption is intended to address ‘‘the
difficulty of reducing emissions from
units with recently installed BACT.’’
Although EPA understands the District’s
intended purpose for including the
exemption, the exemption does not
comply with CAA section 185, for the
same reason as noted above for new
emission units.
The EPA’s Clean Air Act Advisory
Committee (CAAAC) has recently asked
EPA to review and address whether it is
‘‘legally permissible under either
section 185 or 172(e) of the Clean Air
Act for a State to exercise discretion’’ to
develop fee program SIPs employing
one or more of a list of CAAACidentified program options (see https://
www.epa.gov/air/caaac/185wg). One of
the program options the CAAAC
identified is an exemption from fees for
‘‘well-controlled’’ sources. In today’s
action, EPA is proposing to disapprove
the ‘‘clean emission unit’’ exemption in
SJVUAPCD Rule 3170 because we do
not believe such an exemption is
authorized by CAA section 185.
However, the State has not requested
that EPA review the SIP pursuant to
section 172(e) and has not made a
demonstration that the program it has
submitted would ensure controls that
are ‘‘not less stringent’’ than those
required under section 172(e). Thus,
EPA is not at this time addressing
whether it is legally permissible under
CAA section 172(e) for a State to adopt
an alternative program at least as
stringent as a section 185 fee program,
and for the alternative program to
contain a clean unit exemption.
Section 3.2.1 defines the baseline
period as two consecutive years
consisting of the attainment year and
the year immediately prior to the
attainment year. CAA Section 185(b)(2)
establishes the attainment year as the
baseline period. While this provision
also provides the option for calculating
baseline emissions over a period of
more than one calendar year, that option
is limited to sources with emissions that
are irregular, cyclical, or otherwise vary
significantly from year to year. Thus
section 3.2.1 is inconsistent with the
CAA because it provides a different
baseline than that required by the CAA
(two years instead of one) regardless of
whether the emissions are irregular, etc.
Section 3.2.2 allows averaging over 2–
5 years to establish baseline emissions.
CAA Section 185(b)(2) states that EPA
may issue guidance authorizing such an
alternative method of calculating
baseline emissions if a source’s
emissions are irregular, cyclical, or
otherwise vary significantly from year to
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year. EPA issued guidance on
alternative methods for calculating
baseline emissions in the form of the
memorandum from William Harnett,
mentioned above. The averaging period
allowed in Section 3.2.2 of Rule 3170
appears consistent with the March 21,
2008, guidance. However, the language
in Section 3.2.2 allows such averaging
‘‘if those years are determined by the
APCO as more representative of normal
source operation.’’ This language is
considered less stringent than the CAA
criteria. The rule should be amended to
specify use of the expanded averaging
period only if a source’s emissions are
irregular, cyclical, or otherwise vary
significantly from year to year.
Section 3.4 defines the term ‘‘Major
Source’’ by referring to the definition in
SJVUAPCD Rule 2201 (New and
Modified Stationary Source Review
Rule). The current SIP-approved version
of Rule 2201 was adopted by the
SJVUAPCD on December 19, 2002, and
approved by EPA on May 17, 2004 (69
FR 27837). This version of Rule 2201
defines ‘‘Major Source’’ as a stationary
source with VOC or NOx emissions of
over 50,000 pounds per year (25 tons
per year). The CAA defines the major
source threshold as 10 tons per year for
ozone nonattainment areas classified as
extreme. The SJVUAPCD amended Rule
2201 on December 18, 2008, and
submitted it for inclusion in the SIP on
March 17, 2009. This amended version
includes the 10 tons per year threshold,
but has not been approved into the SIP.
Therefore, Rule 3170’s reliance on Rule
2201 to define major sources is not
approvable at this time. If a version of
Rule 2201 that contains the appropriate
major source threshold is approved into
the SIP prior to finalizing this proposed
action, then we will no longer cite
Section 3.4 as a deficiency in Rule 3170.
D. Proposed Action and Public
Comment
As authorized in sections 110(k)(3)
and 301(a) of the Act, EPA is proposing
a limited approval of the submitted rule
to improve the SIP. If finalized, this
action would incorporate the submitted
rule into the SIP, including those
provisions identified as deficient. This
approval is limited because EPA is
simultaneously proposing a limited
disapproval of the rule under section
110(k)(3) because the rule does not fully
meet the statutory section 185
requirement. If this disapproval is
finalized, sanctions will be imposed
under section 179 of the Act unless EPA
approves subsequent SIP revisions that
correct the rule deficiencies within 18
months. These sanctions would be
imposed according to 40 CFR 52.31. A
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final disapproval would also trigger the
Federal implementation plan (FIP)
requirement under section 110(c). Note
that the submitted rule has been
adopted by the SJVUAPCD, and EPA’s
final limited disapproval would not
prevent the local agency from enforcing
it. Moreover, because the rule would be
approved into the SIP, it would also be
Federally enforceable.
However, the limited approval of Rule
3170 does not override specific CAA
mandates. If the area fails to attain by its
2010 attainment date, fees will accrue
beginning in 2011 for emissions above
80% of source baselines for clean units,
new units and major sources which are
exempted from fee collection under the
State rule. The State must adopt and
submit a rule to collect fees for 2011 and
future years from those units or,
consistent with the Administrator’s
obligation under section 185(d), EPA
will collect those fees. In addition, all
sources are liable for fees calculated in
accordance with the baseline definition
in section 185(b)(2) as further
interpreted in EPA guidance issued
pursuant to that provision. The State
must adopt and submit a rule that
ensures fees are collected for 2011 and
all future applicable years based on the
statutory baseline requirement. If the
State fails to do so, EPA will collect any
additional fees owed pursuant to a
Federal program under section 185(d).
We will accept comments from the
public on the proposed limited approval
and limited disapproval for the next 30
days.
III. Statutory and Executive Order
Reviews
A. Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) has exempted this regulatory
action from Executive Order 12866,
entitled ‘‘Regulatory Planning and
Review.’’
B. Paperwork Reduction Act
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This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b).
C. 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,
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small not-for-profit enterprises, and
small governmental jurisdictions.
This rule will not have a significant
impact on a substantial number of small
entities because SIP approvals or
disapprovals under section 110 and
subchapter I, part D of the Clean Air Act
do not create any new requirements but
simply approve or disapprove
requirements that the State is already
imposing. Therefore, because the
proposed Federal SIP limited approval/
limited disapproval 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).
D. Unfunded Mandates Reform Act
Under sections 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 the private sector, of
$100 million or more. Under section
205, EPA must select the most costeffective 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 limited
approval/limited disapproval 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 proposes to approve
and disapprove 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.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive
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Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental
Partnership). Executive Order 13132
requires EPA to develop an accountable
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that 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.’’ Under
Executive Order 13132, EPA may not
issue a regulation that has federalism
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This rule will 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, because it
merely proposes to approve or
disapprove 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. Thus, the requirements of
section 6 of the Executive Order do not
apply to this rule.
F. Executive Order 13175, Coordination
With Indian Tribal Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ This proposed rule does
not have Tribal implications, as
specified in Executive Order 13175. It
will not have substantial direct effects
on Tribal governments, on the
relationship between the Federal
government and Indian Tribes, or on the
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distribution of power and
responsibilities between the Federal
government and Indian Tribes. Thus,
Executive Order 13175 does not apply
to this rule.
EPA specifically solicits additional
comment on this proposed rule from
Tribal officials.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This rule is not subject to
Executive Order 13045, because it
approves a State rule implementing a
Federal standard.
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) because it is
not a significant regulatory action under
Executive Order 12866.
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I. National Technology Transfer and
Advancement Act
Section 12 of the National Technology
Transfer and Advancement Act
(NTTAA) of 1995 requires Federal
agencies to evaluate existing technical
standards when developing a new
regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
The EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
perform activities conducive to the use
of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 6, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9–19856 Filed 8–18–09; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2009–0024; FRL–8943–8]
Withdrawal of Proposed Rule Revising
the California State Implementation
Plan; San Joaquin Valley Unified Air
Pollution Control District
Environmental Protection
Agency (EPA).
ACTION: Withdrawal of proposed rule.
AGENCY:
SUMMARY: On July 14, 2009 (74 FR
33950), EPA published a rule proposing
limited approval and limited
disapproval of a revision to the San
Joaquin Valley Unified Air Pollution
Control District (SJVUAPCD) portion of
the California State Implementation
Plan. The revision concerned
SJVUAPCD Rule 3170, Federally
Mandated Ozone Nonattainment Fee.
We are withdrawing this previously
published rule, and in this Federal
Register, we are publishing a proposed
rule that replaces the July 14, 2009,
proposed rule.
DATES: The proposed rule published on
July 14, 2009 (74 FR 33950) is
withdrawn as of August 19, 2009.
FOR FURTHER INFORMATION CONTACT: Mae
Wang, EPA Region IX, (415) 947–4124,
wang.mae@epa.gov.
SUPPLEMENTARY INFORMATION: On July
14, 2009 (74 FR 33950), EPA proposed
limited approval and limited
disapproval of SJVUAPCD Rule 3170,
Federally Mandated Ozone
Nonattainment Fee. Rule 3170 is a local
fee rule that applies to major sources of
volatile organic compound and nitrogen
oxide emissions within the San Joaquin
Valley ozone nonattainment area. Due to
a clerical error, the proposed rule that
was published on July 14, 2009, was
inconsistent with the signed document.
Consequently, we are withdrawing the
rule proposed on July 14, 2009, and in
this Federal Register, we are publishing
the proposed rule as originally signed.
The rule being proposed in this Federal
Register replaces the following rule
published on July 14, 2009:
Title: Revisions to the California State
Implementation Plan, San Joaquin
Valley Unified Air Pollution Control
District (Proposed rule, 74 FR 33950,
July 14, 2009, EPA–R09–OAR–2009–
0024).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
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requirements, Volatile organic
compounds.
Dated: July 30, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9–19857 Filed 8–18–09; 8:45 am]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
42 CFR Part 73
RIN 0920–AA32
Possession, Use, and Transfer of
Select Agents and Toxins—Chapare
virus
AGENCY: Department of Health and
Human Services (HHS).
ACTION: Notice of proposed rulemaking.
SUMMARY: We are proposing to add
Chapare virus to the list of HHS select
agents and toxins. We are proposing this
action because Chapare virus has been
phylogenetically identified as a Clade B
arenavirus and is closely related to other
currently regulated South American
arenaviruses that cause haemorrhagic
fever, particularly Sabia virus.
DATES: Written comments must be
received on or before October 19, 2009.
ADDRESSES: Comments on the proposed
change to the list of HHS select agents
and toxins should be marked
‘‘Comments on Chapare virus’’ and
mailed to: Centers for Disease Control
and Prevention, Select Agent Program,
1600 Clifton Road, NE., Mailstop A–46,
Atlanta, Georgia 30333. Comments may
be e-mailed to: SAPcomments@cdc.gov.
FOR FURTHER INFORMATION CONTACT:
Robbin Weyant, Director, Division of
Select Agents and Toxins, Centers for
Disease Control and Prevention, 1600
Clifton Road, NE., Mailstop A–46,
Atlanta, GA 30333. Telephone: (404)
718–2000.
SUPPLEMENTARY INFORMATION: The
Public Health Security and Bioterrorism
Preparedness and Response Act of 2002
(the Act) authorizes the Secretary to
regulate the possession, use, and
transfer of select agents and toxins that
have the potential to pose a severe
threat to public health and safety. These
regulations are set forth at 42 CFR part
73.
Criteria used to determine whether a
select agent or toxin should be included
under the provisions of these
regulations are based on:
E:\FR\FM\19AUP1.SGM
19AUP1
Agencies
[Federal Register Volume 74, Number 159 (Wednesday, August 19, 2009)]
[Proposed Rules]
[Pages 41826-41829]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19856]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0024; FRL-8943-7]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the San Joaquin Valley Unified Air Pollution Control
District portion of the California State Implementation Plan. These
revisions concern a local fee rule that applies to major sources of
volatile organic compound and nitrogen oxide emissions within the San
Joaquin Valley ozone nonattainment area. We are proposing action on a
local rule that regulates these emission sources under the Clean Air
Act as amended in 1990. We are taking comments on this proposal and
plan to follow with a final action.
DATES: Any comments must arrive by September 18, 2009.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0024, by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
Instructions: All comments will be included in the public docket
without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through https://www.regulations.gov or e-mail. https://www.regulations.gov is an
``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment.
Docket: The index to the docket for this action 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: Mae Wang, EPA Region IX, (415) 947-
4124, wang.mae@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What Rule did the State Submit?
B. What Is the Purpose of the Submitted Rule?
C. Why Was This Rule Submitted?
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rule?
B. Does the Rule Meet the Evaluation Criteria?
C. What Are the Rule Deficiencies?
D. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What Rule Did the State Submit?
The San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD) adopted Rule 3170, Federally Mandated Ozone Nonattainment
Fee, on May 16, 2002. This rule was submitted by the California Air
Resources Board (CARB) on August 6, 2002, for incorporation into the
California State Implementation Plan (SIP). On August 30, 2002, this
rule submittal was found to meet the completeness criteria in 40 CFR
Part 51, Appendix V.
B. What Is the Purpose of the Submitted Rule?
SJVUAPCD Rule 3170 requires certain major stationary sources of
volatile organic compounds (VOCs) and nitrogen oxides (NOX)
in the San Joaquin Valley ozone nonattainment area to pay a fee to the
SJVUAPCD if the area fails to attain the 1-hour national ambient air
quality standard (NAAQS) for ozone by its Federally established
attainment date. The fee must be paid for each calendar year after the
attainment year until the area is redesignated to attainment of the 1-
hour ozone standard.
C. Why Was This Rule Submitted?
Under sections 182(d)(3), (e), and 185 of the Clean Air Act as
amended in 1990 (CAA or the Act), States are required to adopt an
excess emissions fee regulation for ozone nonattainment areas
classified as severe or extreme. The 1-hour ozone NAAQS classification
for the San Joaquin Valley area is extreme (see 69 FR 20550, April 16,
2004). Although EPA has revoked the 1-hour ozone NAAQS (69 FR 23951,
April 30, 2004), Section 185 requirements still apply for 1-hour ozone
non-attainment areas (South Coast Air Quality Management District v.
EPA, 472 F.3d 882, DC Cir. 2006). The fee regulation specified by the
Act requires major stationary sources of VOCs in the nonattainment area
to pay a fee to the State if the area fails to attain the standard by
the attainment date set forth in the Act. Section 182(f) of the Act
requires States to apply the same requirements to major stationary
sources of NOX as are applied to major stationary sources of
VOCs. Emissions of VOCs and NOX play a role in producing
ground-level ozone and smog, which harm human health and the
environment. SJVUAPCD Rule 3170 applies to major sources of both
NOX and VOCs.
II. EPA's Evaluation and Action
A. How Is EPA Evaluating the Rule?
Generally, SIP rules must be enforceable (see section 110(a) of the
Act), and must not relax existing requirements (see sections 110(l) and
193). Rule 3170 was evaluated for compliance with the requirements in
CAA section 185. The rule was also
[[Page 41827]]
evaluated for consistency with the CAA and EPA's general SIP policies,
as well as a March 21, 2008, memorandum from William Harnett, Director
of the Air Quality Policy Division, to the Regional Air Division
Directors, entitled, ``Guidance on Establishing Emissions Baselines
under Section 185 of the Clean Air Act (CAA) for Severe and Extreme
Ozone Nonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS by
their Attainment Date.'' Guidance and policy documents that we use to
help evaluate specific enforceability requirements typically include
the following:
1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations'', EPA, May 25, 1988 (the Bluebook).
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies'', EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``State Implementation Plans; Nitrogen Oxides Supplement to the
General Preamble; Clean Air Act Amendments of 1990 Implementation of
Title I; Proposed Rule'', (the NOX Supplement), 57 FR 55620,
November 25, 1992.
B. Does the Rule Meet the Evaluation Criteria?
Rule 3170 improves the SIP by establishing an excess emissions fee
regulation. Portions of the rule are consistent with the CAA, as well
as relevant policy and guidance regarding enforceability and SIP
relaxations. Rule provisions which do not meet the evaluation criteria
are summarized below.
C. What Are the Rule Deficiencies?
The following provisions conflict with section 185 of the Act and
prevent full approval of the SIP revision:
Section 4.2 of SJVUAPCD Rule 3170 exempts units that begin
operation after the attainment year. CAA Section 185 does not provide
for an exemption for emission units that begin operation after the
attainment year, so this exemption does not fully comply with the CAA.
Rather, it requires ``each major source'' to pay the fee. See CAA
section 185(a).
Section 4.3 exempts any ``clean emission unit'' from the
requirements of the rule. Section 3.6 defines a clean emission unit as
a unit that is equipped with an emissions control technology that
either has a minimum 95% control efficiency (or 85% for lean-burn
internal combustion engines), or meets the requirements for achieved-
in-practice Best Achievable Control Technology as accepted by the APCO
during the 5 years immediately prior to the end of the attainment year.
The District's staff report for Rule 3170 states that the exemption is
intended to address ``the difficulty of reducing emissions from units
with recently installed BACT.'' Although EPA understands the District's
intended purpose for including the exemption, the exemption does not
comply with CAA section 185, for the same reason as noted above for new
emission units.
The EPA's Clean Air Act Advisory Committee (CAAAC) has recently
asked EPA to review and address whether it is ``legally permissible
under either section 185 or 172(e) of the Clean Air Act for a State to
exercise discretion'' to develop fee program SIPs employing one or more
of a list of CAAAC-identified program options (see https://www.epa.gov/air/caaac/185wg). One of the program options the CAAAC identified is an
exemption from fees for ``well-controlled'' sources. In today's action,
EPA is proposing to disapprove the ``clean emission unit'' exemption in
SJVUAPCD Rule 3170 because we do not believe such an exemption is
authorized by CAA section 185. However, the State has not requested
that EPA review the SIP pursuant to section 172(e) and has not made a
demonstration that the program it has submitted would ensure controls
that are ``not less stringent'' than those required under section
172(e). Thus, EPA is not at this time addressing whether it is legally
permissible under CAA section 172(e) for a State to adopt an
alternative program at least as stringent as a section 185 fee program,
and for the alternative program to contain a clean unit exemption.
Section 3.2.1 defines the baseline period as two consecutive years
consisting of the attainment year and the year immediately prior to the
attainment year. CAA Section 185(b)(2) establishes the attainment year
as the baseline period. While this provision also provides the option
for calculating baseline emissions over a period of more than one
calendar year, that option is limited to sources with emissions that
are irregular, cyclical, or otherwise vary significantly from year to
year. Thus section 3.2.1 is inconsistent with the CAA because it
provides a different baseline than that required by the CAA (two years
instead of one) regardless of whether the emissions are irregular, etc.
Section 3.2.2 allows averaging over 2-5 years to establish baseline
emissions. CAA Section 185(b)(2) states that EPA may issue guidance
authorizing such an alternative method of calculating baseline
emissions if a source's emissions are irregular, cyclical, or otherwise
vary significantly from year to year. EPA issued guidance on
alternative methods for calculating baseline emissions in the form of
the memorandum from William Harnett, mentioned above. The averaging
period allowed in Section 3.2.2 of Rule 3170 appears consistent with
the March 21, 2008, guidance. However, the language in Section 3.2.2
allows such averaging ``if those years are determined by the APCO as
more representative of normal source operation.'' This language is
considered less stringent than the CAA criteria. The rule should be
amended to specify use of the expanded averaging period only if a
source's emissions are irregular, cyclical, or otherwise vary
significantly from year to year.
Section 3.4 defines the term ``Major Source'' by referring to the
definition in SJVUAPCD Rule 2201 (New and Modified Stationary Source
Review Rule). The current SIP-approved version of Rule 2201 was adopted
by the SJVUAPCD on December 19, 2002, and approved by EPA on May 17,
2004 (69 FR 27837). This version of Rule 2201 defines ``Major Source''
as a stationary source with VOC or NOx emissions of over 50,000 pounds
per year (25 tons per year). The CAA defines the major source threshold
as 10 tons per year for ozone nonattainment areas classified as
extreme. The SJVUAPCD amended Rule 2201 on December 18, 2008, and
submitted it for inclusion in the SIP on March 17, 2009. This amended
version includes the 10 tons per year threshold, but has not been
approved into the SIP. Therefore, Rule 3170's reliance on Rule 2201 to
define major sources is not approvable at this time. If a version of
Rule 2201 that contains the appropriate major source threshold is
approved into the SIP prior to finalizing this proposed action, then we
will no longer cite Section 3.4 as a deficiency in Rule 3170.
D. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is
proposing a limited approval of the submitted rule to improve the SIP.
If finalized, this action would incorporate the submitted rule into the
SIP, including those provisions identified as deficient. This approval
is limited because EPA is simultaneously proposing a limited
disapproval of the rule under section 110(k)(3) because the rule does
not fully meet the statutory section 185 requirement. If this
disapproval is finalized, sanctions will be imposed under section 179
of the Act unless EPA approves subsequent SIP revisions that correct
the rule deficiencies within 18 months. These sanctions would be
imposed according to 40 CFR 52.31. A
[[Page 41828]]
final disapproval would also trigger the Federal implementation plan
(FIP) requirement under section 110(c). Note that the submitted rule
has been adopted by the SJVUAPCD, and EPA's final limited disapproval
would not prevent the local agency from enforcing it. Moreover, because
the rule would be approved into the SIP, it would also be Federally
enforceable.
However, the limited approval of Rule 3170 does not override
specific CAA mandates. If the area fails to attain by its 2010
attainment date, fees will accrue beginning in 2011 for emissions above
80% of source baselines for clean units, new units and major sources
which are exempted from fee collection under the State rule. The State
must adopt and submit a rule to collect fees for 2011 and future years
from those units or, consistent with the Administrator's obligation
under section 185(d), EPA will collect those fees. In addition, all
sources are liable for fees calculated in accordance with the baseline
definition in section 185(b)(2) as further interpreted in EPA guidance
issued pursuant to that provision. The State must adopt and submit a
rule that ensures fees are collected for 2011 and all future applicable
years based on the statutory baseline requirement. If the State fails
to do so, EPA will collect any additional fees owed pursuant to a
Federal program under section 185(d).
We will accept comments from the public on the proposed limited
approval and limited disapproval for the next 30 days.
III. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).
C. 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 rule will not have a significant impact on a substantial
number of small entities because SIP approvals or disapprovals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve or disapprove requirements that
the State is already imposing. Therefore, because the proposed Federal
SIP limited approval/limited disapproval 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).
D. Unfunded Mandates Reform Act
Under sections 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
the 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 limited approval/limited disapproval
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 proposes to approve and disapprove 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.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will 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, because it
merely proposes to approve or disapprove 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. Thus, the requirements of section 6 of the Executive Order do not
apply to this rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This proposed rule does not
have Tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the
[[Page 41829]]
distribution of power and responsibilities between the Federal
government and Indian Tribes. Thus, Executive Order 13175 does not
apply to this rule.
EPA specifically solicits additional comment on this proposed rule
from Tribal officials.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 6, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9-19856 Filed 8-18-09; 8:45 am]
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