Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Ventura County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing a limited approval of revisions to the California State Implementation Plan (SIP) which concerns the control of sulfur emissions within the Ventura County Air Pollution Control District.

The intended effect of proposing a limited approval of this rule is to regulate emissions of sulfur dioxide (SO₂) in accordance with the requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). EPA's final action on this proposed rule will incorporate it into the federally approved SIP. EPA has evaluated this rule and is proposing a limited approval under provisions of the CAA regarding EPA action on SIP submittals and general rulemaking authority because these revisions, while strengthening the SIP, also do not fully meet the CAA provisions regarding plan submissions.

DATES:

Comments must be received on or before March 23, 2000.

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 9 office during normal business hours. Copies of the submitted rule are also available for inspection at the following locations:

Environmental Protection Agency, Air Docket, 401 “M” Street, SW., Washington, DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 2020 “L” Street, Sacramento, CA 95812.

Ventura County APCD, 669 County Square Dr., 2nd Fl., Ventura, CA 93003-5417

FOR FURTHER INFORMATION CONTACT:

Stanley Tong, Rulemaking Office, [AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-1191.

SUPPLEMENTARY INFORMATION:

I. Applicability

The rule being proposed for approval into the California SIP is: Ventura County Air Pollution Control District (VCAPCD) Rule 54, Sulfur Compounds. VCAPCD Rule 54 was submitted by CARB to EPA on July 13, 1994.

II. Background

40 CFR 81.305 provides the attainment status designations for air districts in California. Ventura County Air Pollution Control District is listed as being in attainment for the national ambient air quality standards (NAAQS) for sulfur dioxide (SO₂). Therefore, for purposes of controlling SO₂, this rule need only comply with the general provisions of section 110 of the Act.

Sulfur dioxide is formed by the combustion of fuels containing sulfur compounds. High concentrations of SO₂ affect breathing and may aggravate existing respiratory and cardiovascular disease. VCAPCD adopted Rule 54, Sulfur Compounds, on June 14, 1994 to control sulfur dioxide emissions. On July 13, 1994, the State of California submitted many rules for incorporation into its SIP, including VCAPCD Rule 54. This rule was found to be complete on September 12, 1994 pursuant to EPA's completeness criteria that are set forth in 40 CFR part 51, appendix V and is being proposed for limited approval.

The following is EPA's evaluation and proposed action for VCAPCD Rule 54.

III. EPA Evaluation and Proposed Action

In determining the approvability of an SO₂ rule, EPA must evaluate the rule for consistency with the requirements of the CAA and EPA regulations, as found in section 110 and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittal of Implementation Plans).

While the VCAPCD is in attainment with the SO₂ NAAQS, many of the general SIP requirements regarding enforceability, for example, are still appropriate for this rule. In determining the approvability of this rule, EPA evaluated it in light of the “SO₂ Guideline Document,” EPA-452/R-94-008.

On April 17, 1987, EPA approved into the SIP a version of VCAPCD Rule 54, Sulfur Compounds, that had been adopted by VCAPCD on July 5, 1983. VCAPCD submitted the current revision to Rule 54 which includes the following significant changes from the current SIP:

• Clarified that the SO₂ limits also apply at sea level
• The rule now covers sulfur emissions from outer continental shelf sources
• Reduced the SO₂ ground level limits from 0.5 ppm down to 0.25 ppm to match state standards.
• Added an exemption for planned and unplanned flaring events provided conditions described in the Rule are met.
• Added a section on test methods.

Although VCAPCD's Rule 54 will strengthen the SIP, this rule contains the following deficiency which should be corrected.

• The rule specifies a 300 ppm SO₂ limit at the point of discharge for any combustion operation. The rule should also indicate that the standard is on a dry basis and should specify the percent excess air. EPA also recommends the following improvement to the rule.
• The period of record retention specified should be consistent with the federal record retention requirement of 5 years.

A detailed discussion of the rule deficiency and recommendation for rule improvement can be found in the Technical Support Document for VCAPCD Rule 54 (1/14/2000), which is available from the U.S. EPA, Region IX office.

Because of the deficiency identified for the rule being acted on in this document, it is not fully approvable and may lead to rule enforceability problems. Because of the above deficiency, EPA cannot grant full approval of the rule under section 110(k)(3). Also, because the submitted rule is not composed of separable parts which meet all the applicable requirements of the CAA, EPA cannot grant partial approval of the rule under section 110(k)(3). However, EPA may grant a limited approval of the submitted rule under section 110(k)(3) in light of EPA's authority pursuant to section 301(a) to adopt regulations necessary to advance the Act's overarching air quality protection goals by strengthening the SIP. In order to strengthen the SIP by advancing the SO₂ air quality protection goal of the Act, EPA is proposing a limited approval of VCAPCD Rule 54 under sections 110(k)(3) and 301(a) of the Act. However, this limited approval would not approve those measures as satisfying any other specific requirement of the Act, nor would it constitute full approval of the SIP submittal pursuant to section 110(k)(3). Rather, a limited approval of this rule by EPA would mean that the emission limitations and other control measure requirements become part of the California SIP and are federally enforceable by EPA. See e.g. sections 302(q) and 113 of the Act.

It should be noted that the rule covered by this proposed rulemaking has been adopted and is currently in effect in the air pollution control district to which this action pertains. EPA's final limited approval action will not prevent VCAPCD or EPA from enforcing this rule.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13132

Executive Order 13132, entitled 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 proposed 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 (64 FR 3255, August 10, 1999), because it 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is does not involve decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.” Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides

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