Corrections to the California State Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to delete various local rules and state statutes from the California State Implementation Plan (SIP) that were incorporated into the SIP in error. These primarily include rules and statutes concerning procedures before the local hearing board, local fees, enforcement authorities, administrative permit requirements, and appeals. EPA has determined that the continued presence of these rules and statutes in the SIP is potentially confusing and thus problematic for affected sources, the State, local agencies, and EPA. The intended effect of this proposal is to delete these rules and statutes to make the SIP consistent with the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

Any comments must arrive by February 23, 2004.

ADDRESSES:

Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to steckel.andrew@epa.gov, or submit comments at http://www.regulations.gov.

You may inspect copies of the rules to be deleted and public comments at our Region IX office during normal business hours by appointment. You may also see copies of the rules by appointment at the locations listed in SUPPLEMENTARY INFORMATION under “Public Inspection.”

FOR FURTHER INFORMATION CONTACT:

Julie A. Rose, Region IX, (415) 947-4126. E-mail: rose.julie@EPA.gov.

SUPPLEMENTARY INFORMATION:

Public Inspection

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

Amador County Air Pollution Control District, 500 Argonaut Lane, Jackson, CA 95642.

Antelope Valley Air Pollution Control District, 43301 Division Street, Suite 206, Lancaster, CA 93539-4409.

Bay Area Air Quality Management District, 939 Ellis Street, San Francisco, CA 94109.

Butte County Air Quality Management District, 2525 Dominic Drive, Suite J, Chico, CA 95928-7184.

Calaveras County Air Pollution Control District, 891 Mountain Ranch Road, San Andreas, CA 95249-9709.

Colusa County Air Pollution Control District, 100 Sunrise Blvd. Suite F, Colusa, CA 95932-3246.

El Dorado County Air Pollution Control District, 2850 Fairlane Court, Building C, Placerville, CA 95667-4100.

Feather River Air Quality Management District, 938—14th Street, Marysville, CA 95901-4149.

Glenn County Air Pollution Control District, 720 North Colusa Street, Willows, CA 95988-0351.

Great Basin Unified Air Pollution Control District, 157 Short Street, Suite 6, Bishop, CA 93514.

Imperial County Air Pollution Control District, 150 South Ninth Street, El Centro, CA 92243-2801.

Kern County (Southeast Desert) Air Pollution Control District, 2700 M. Street, Suite 302, Bakersfield, CA 93301-2370.

Lake County Air Quality Management District, 885 Lakeport Boulevard, Lakeport, CA 95453-5405.

Lassen County Air Pollution Control District, 175 Russell Avenue, Susanville, CA 96130-4215.

Mariposa County Air Pollution Control District, 5110 Bullion Street, Mariposa, CA 95338.

Mendocino County Air Quality Management District, 306 E. Gobbi Street, Ukiah, CA 95482.

Modoc County Air Pollution Control District, 202 W. Fourth Street, Alturas, CA 96101.

Mojave Desert Air Quality Management District, 14306 Park Avenue, Victorville, CA 92392-2310.

Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud Ct., Monterey, CA 93940-6536.

North Coast Unified Air Quality Management District, 2300 Myrtle Avenue, Eureka, CA 95501-3327.

Northern Sierra Air Quality Management District, 200 Litton Drive, Suite 320, Grass Valley, CA 95945-2509.

Northern Sonoma County Air Pollution Control District, 150 Matheson Street, Healdsburg, CA 95448-4908.

Placer County Air Pollution Control District, 11464 B Avenue, Auburn, CA 95603.

San Diego County Air Pollution Control District, 9150 Chesapeake Drive, San Diego, CA 92123-1096.

San Joaquin Valley Unified Air Pollution Control District, 1990 East Gettysburg, Fresno, CA 93726.

San Luis Obispo County Air Pollution Control District, 3433 Roberto Court, San Luis Obispo, CA 93401-7126.

Santa Barbara County Air Pollution Control District, 26 Castilian Drive, B-23, Goleta, CA 93117.

Shasta County Air Quality Management District, 1855 Placer Street, Suite 101, Redding, CA 96001-1759.

Siskiyou County Air Pollution Control District, 525 South Foothill Drive, Yreka, CA 96097-3036.

South Coast Air Quality Management District, 21865 E. Copley Drive, Diamond Bar, CA 91765.

Tehama County Air Pollution Control District, 1750 Walnut Street, Red Bluff, CA 96080.

Tuolumne County Air Pollution Control District, 22365 Airport, Columbia, CA 95310.

Ventura County Air Pollution Control District, 669 County Square Drive, Ventura, CA 93003.

Yolo-Solano Air Quality Management District, 1947 Galileo Court, Suite 103, Davis, CA 95616.

Throughout this document wherever “we,” “us,” or “our” are used, we mean EPA.

Table of Contents

I. Why is EPA proposing to correct the SIP?

II. What rules are proposed for deletion?

III. Proposed action, public comment and final action

IV. Administrative Requirements

I. Why Is EPA Proposing To Correct the SIP?

The Clean Air Act was first enacted in 1970. In the 1970s and early 1980s, thousands of state and local agency regulations were submitted to EPA for incorporation into the SIP in order to fulfill the new federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements not required by the Act. Due to time and resource constraints, EPA's review of these submittals focused primarily on the new substantive requirements and we approved many other elements into the SIP with minimal review.

We now recognize that many of these elements were not appropriate for approval into the SIP. In general, these elements are appropriate for state and local agencies to adopt and implement, but it is not necessary or appropriate to make them federally enforceable by incorporating them into the applicable SIP. These include:

A. Rules that govern local hearing board procedures and other administrative requirements such as frequency of meetings, salaries paid to board members, and procedures for petitioning for a local hearing.

B. Administrative permit rules such as those that describe procedures for action, denial, appeal, and reinstatement of permits to operate. Substantive local requirements to fulfill CAA new source review and operating permit provisions are federally approved or delegated elsewhere.

C. Variance provisions that provide for modification of the requirements of the applicable SIP. The variance procedures included in today's action are based in State law. See California Health & Safety Code sections 42350-42364. State- or district-issued variances provide an applicant with a mechanism to obtain relief from state enforcement of a state or local rule under certain conditions. Pursuant to federal law, specifically section 110(i) of the Clean Air Act, 42 U.S.C. 7410(i), neither EPA nor a state may revise a State Implementation Plan (SIP) by issuing an “order, suspension, plan revision or other action modifying any requirement of an applicable implementation plan” without a plan promulgation or revision. EPA and California have long recognized that a state-issued variance, though binding as a matter of state law, does not prevent EPA from enforcing the underlying SIP provisions unless and until EPA approves that variance as a SIP revision. The variance provisions included in today's action are deficient for various reasons, including their failure to address the fact that a state- or district-issued variance has no effect on federal enforceability unless the variance is submitted to and approved by EPA as a SIP revision. Therefore, their inclusion in the SIP is inconsistent with the Act and may be confusing to regulated industry and the general public. Moreover, because state-issued variances require independent EPA approval in order to modify the substantive requirements of a SIP, removal of these variance provisions from the SIP will have no effect on regulated entities. See Industrial Environmental Association v. Browner, No. 97-71117 (9th Cir., May 26, 2000).

D. Various provisions describing local agency investigative or enforcement authority including the authority to inspect or arrest, issue violation notices, and issue orders for abatement. States may need to adopt such rules to demonstrate adequate enforcement authority under section 110(a)(2) of the Act, but they should not be approved into the applicable SIP to avoid potential conflict with EPA's independent authorities provided in CAA section 113, section 114 and elsewhere.

E. Local fee provisions that are not economic incentive programs and are not designed to replace or relax a SIP emission limit. While it is appropriate for local agencies to implement fee provisions, for example, to recover costs for issuing permits, it is generally not appropriate to make local fee collection federally enforceable.

II. What Rules are Proposed for Deletion?

EPA has determined that the California rules listed in the tables below are inappropriate for inclusion in the SIP, but were previously approved into the SIP in error. Dates that these rules were submitted by the State and approved by EPA are provided. We are proposing deletion of these rules and any earlier versions of these rules from the individual air pollution control district portions of the California SIP under CAA section 110(k)(6) as inconsistent with the requirements of CAA section 110 and title I, part D.

III. Proposed Action, Public Comment and Final Action

EPA has reviewed the rules listed in the tables above and determined that they were previously approved into the applicable California SIP in error. Deletion of these rules will not relax the applicable SIP and is consistent with the Act. Therefore, EPA is proposing to delete these rules under Section 110(k)(6) of the Act, which provides EPA authority to remove these rules without additional State submission. We will accept comments from the public on this proposal for the next 30 days. Unless we receive new information during the comment period supporting the maintenance of these rules in the SIP, we intend to publish a final action that will delete these rules from the federally enforceable SIP.

IV. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed 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 proposed action imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposed rule 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 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), nor will it 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), because it does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In this proposed rule, EPA is not developing or adopting a technical standard. 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 proposed 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.).

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 et seq.