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ENVIRONMENTAL PROTECTION AGENCY

Environmental Protection Agency

CFR Citation: 40 CFR Part 52

CA ID: [CA255-0413; FRL-7564-7]

NOTICE: PROPOSED RULES

ACTION: Air quality implementation plans; approval and promulgation; various States:

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District

DOCUMENT SUMMARY: EPA is proposing to disapprove revisions to the San Joaquin Valley Unified Air Pollution Control District's (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions concern visible emissions (VE) from many different sources of air pollution. We are proposing to disapprove SJVUAPCD Rule 4101, a local rule regulating VE, under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action. Previously, EPA proposed to approve Rule 4101.
DATEs: Any comments must arrive by October 29, 2003.

SUMMARY: California,

SUPPLEMENTAL 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. Are there other versions of this rule?

C. What is the purpose of the submitted rule revision? II. Our Prior Proposed Action, Public Comments, and EPA Response. III. 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's deficiencies?

D. EPA recommendations to further improve the rule.

E. Proposed action and public comment.
IV. Statutory and Executive Order Reviews.
I. The State's Submittal

A. What Rule Did the State Submit?

Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the SJVUAPCD and submitted by the California Air Resources Board (CARB).
Table 1.Submitted Rules Local agency Rule No. Rule title Adopted Submitted SJVUAPCD................................. 4101 Visible Emissions.......... 11/15/01 12/06/01

On January 22, 2002, EPA found this rule submittal met the completeness criteria in 40 CFR part 51 appendix V.

B. Are There Other Versions of the Rule?

Prior to the SJVUAPCD's formation, eight countywide air pollution control districts (APCDs) in San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and Kern counties regulated air pollution in California's San Joaquin Valley. In almost all cases, EPA approved and incorporated into the Federal SIP versions of these individual county rules: Rule 401Visible Emission, Rule 402Exemptions, and Rule 403 Wet Plumes. Please see the Technical Support Document (TSD) for our previous rulemaking proposal on Rule 4101 for a table of these local rule adoptions and SIP approval dates. On
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December 17, 1992, SJVUAPCD adopted Rule 4101 to consolidate and supercede these individual county VE and related rules.

EPA has received two prior versions of Rule 4101. SJVUAPCD adopted the first version on December 17, 1992, and CARB submitted the rule to EPA on September 28, 1994. SJVUAPCD adopted the second version on June 21, 2001, and CARB submitted the rule to EPA on October 30, 2001. However, EPA has not acted on these versions of Rule 4101. While we can act on only the most recently submitted version listed in Table 1, we have reviewed material provided with these previous submittals. C. What Is the Purpose of the Submitted Rule Revision?

Visible emission rules with opacity standards are basic components of air quality regulatory programs. Rule 4101 prohibits air pollution that results in greater than 20% opacity. The TSD associated with our prior proposal has more information about Rule 4101 and the county level rules it replaces.
II. Our Previous Proposed Action, Public Comments, & EPA Responses

On June 10, 2002 (67 FR 39659), EPA proposed to approve Rule 4101 based on an initial assessment that the Rule improved the SIP and was consistent with relevant CAA requirements. For the reasons discussed below, EPA does not intend to take final action on this proposal.

During the comment period for this proposed approval, we received comments from Brent Newell, Center on Race, Poverty, and the Environment, on behalf of El Comite para el Bienestar de Earlimart and the Association of Irritated Residents. We have summarized these comments and provided our responses below.

Comment #1: EPA did not determine whether Rule 4101 implements Best Available Control Measures (BACM), as required by CAA section 189(b) for serious PM10 nonattainment areas such as SJVUAPCD. The proposed full approval determines that the rule provides Reasonably Available Control Measures (RACM), but neither mentions BACM, nor determines that a 20% opacity threshold fulfills BACM.

Response #1: EPA concurs that BACM under CAA section 189(b) as well as RACM under CAA section 189(a) must be implemented in the San Joaquin Valley PM10 nonattainment area. EPA has approved general 20% opacity rules in other serious PM10 nonattainment areas, and does not believe a more stringent general limit is required in Rule 4101 to meet the Act's BACM requirement. See, for example, South Coast Air Quality Management District Rule 401, Great Basin Air Pollution Control District Rule 400, Clark County Air Quality Management Board Rule 26 and Washoe County District Health Department Air Quality Management Division Rule 040.005.

Comment #2: Section 4.4 of Rule 4101 exempts agricultural sources from the 20% opacity requirement. Onfield farming operations accounted for 111 tons per day of PM10 emissions in 2000, 23% of the air basin's total inventory. By exempting such significant emissions, Rule 4101 meets neither RACM, nor BACM requirements.

Response #2: Twenty percent opacity is reasonably available for most or all common industrial sources, as shown by the many Districts in California and many states across the country (e.g., Michigan (see Michigan Administrative Code Rule 336.1301), New Mexico (see New Mexico Administrative Code at Title 20261), Texas (see Texas Administrative Code at Title 30, Part 1111.111), and Washington (see Washington Administrative Code at Title 173400040) that apply a general 20% opacity requirement. It may be possible to demonstrate that higher, lower, or different forms of opacity standards are appropriate RACM and BACM for a specific source. Nonetheless, we concur with the comment that it is inappropriate to exempt broadly the entire agricultural industry from opacity requirements without an analysis of what types of sources are affected and why a 20% opacity requirement is
inappropriate. For example, internal combustion engines used by public utilities and excavation industries in San Joaquin are subject to the 20% opacity requirement, while internal combustion engines used for agricultural irrigation are not.

Comment #3: Section 4.11 exempts sources subject to or specifically exempted by Regulation VIII from Rule 4101. The comment references concerns provided previously about agricultural exemptions in Regulation VIII.

Response #3: We believe Rule 4101 would be improved by providing an itemized list of exempt activities in the rule instead of the current general reference to Regulation VIII. However, we do not object to the overall concept of applying BACMlevel opacity requirements to some sources via Rule 4101, and other sources via Regulation VIII. A similar structure exists for SJVUAPCD Rule 4661, which establishes general requirements for organic solvents, but exempts those sources regulated by industryspecific rules.
III. 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), must meet appropriate requirements for nonattainment areas (see section 189), and must not relax existing requirements (see sections 110(l) and 193). The SJVUAPCD regulates a serious PM10 nonattainment area (see 40 CFR part 81), so Rule 4101 must meet both CAA RACM and BACM requirements.

Guidance and policy documents that we used to define these requirements include the following:

1. Portions of the proposed post1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, (November 24, 1987).

2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,'' (Blue Book), notice of availability published in the May 25, 1988, Federal Register.

3. ``General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' at 57 FR 1354013541, April 16, 1992.

4. ``General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,'' at 59 FR 4200842015, August 16, 1994.

B. Does the Rule Meet the Evaluation Criteria?

Consolidation of countyspecific requirements into Rule 4101 clarifies VE and related requirements within the San Joaquin nonattainment area. However, while the Rule is consistent, in part, with the relevant federal policy and requirements, there are rule provisions which do not meet the evaluation criteria.

C. What Are the Rule's Deficiencies?

Certain provisions of Rule 4101 conflict with section 110 and part D of the Act and prevent full approval of the SIP revision. These deficiencies are discussed below.

1. Section 4.4 is inconsistent with the CAA section 189 RACM and BACM requirements. Its general exemption for agricultural sources should be either deleted altogether, or significantly narrowed in scope and justified.

2. Section 4.10 references California Health and Safety Code (HSC) section 41701. This reference has not been submitted to EPA for incorporation into the applicable SIP, thus it undermines
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the clarity and enforceability of the rule and is inconsistent with CAA section 110(a), (i) and (l). SJVUAPCD should do one of three things, remove the exemption, submit the referenced HSC section, or insert specific text from the HSC into Rule 4101. Note that EPA has not reviewed the substance of the HSC.

D. EPA Recommendations To Further Improve the Rule

We have no recommended rule revisions that do not affect EPA's current action.

E. Proposed Action and Public Comment

For the reasons described in section III above and as authorized in section 110(k)(3) of the Act, we are proposing to disapprove SJVUAPCD Rule 4101. If finalized, this action would retain the existing individual county rules within the SIP. Unless EPA approves subsequent SIP revisions correcting the rule's deficiencies within 18 months, sanctions would be imposed according to CAA section 179 and 40 CFR 52.3032. Our final disapproval would also trigger the FIP requirement under section 110(c).

We will accept comments from the public on this proposed disapproval for the next 30 days.
IV. 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 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.)

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 notforprofit enterprises, and small governmental jurisdictions.

This proposed rule will not have a significant impact on a substantial number of small entities because SIP disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements. Therefore, because the Federal SIP 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 FederalState 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, 25566 (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 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 disapprove preexisting 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 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, because it merely disapproves 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 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.
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G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

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 proposed rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
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, Particulate matter, Reporting and recordkeeping requirements.

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

Dated: September 8, 2003.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 0324558 Filed 92603; 8:45 am]
BILLING CODE 656050P

FOR FURTHER INFORMATION CONTACT Jerald S. Wamsley, Rulemaking Office (AIR4), U.S. Environmental Protection Agency, Region IX, (415) 7441226, or via email at wamsley.jerry@epa.gov.