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Disapproval of State Implementation Plan Revisions, San Joaquin Valley Unified Air Pollution Control District
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[Federal Register: January 8, 2004 (Volume 69, Number 5)]
[Rules and Regulations]
[Page 1271-1273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja04-2]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA255-0431; FRL-7607-6]
Disapproval of State Implementation Plan Revisions, San Joaquin
Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing disapproval of a revision to the San Joaquin
Valley Unified Air Pollution Control District (SJVUAPCD) portion of the
California State Implementation Plan (SIP). This action was proposed in
the Federal Register on September 29, 2003 and concerns visible
emissions (VE) from many different sources of air pollution. Under
authority of the Clean Air Act as amended in 1990 (CAA or the Act),
this action directs California to correct rule deficiencies in SJVUAPCD
Rule 4101.
EFFECTIVE DATE: This rule is effective on February 9, 2004.
ADDRESSES: You can inspect copies of the administrative record for this
action
[[Page 1272]]
at EPA's Region IX office during normal business hours by appointment.
You can inspect copies of the submitted SIP revision by appointment at
the following locations:
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901;
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814; and,
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726.
A copy of the rule may also be available via the Internet at
http://www.arb.ca.gov/drdb/drdbltxt.htm. 
Please be advised
that this is not an EPA website and may not contain the same version of
the rule that was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-
4111, or via e-mail at wamsley.jerry@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On September 29, 2003 (68 FR 55917), EPA proposed to disapprove the
following rule that was submitted for incorporation into the California
SIP.
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Local agency Rule Rule title Adopted Submitted
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SJVUAPCD.... 4101 Visible Emissions...... 11/15/01 12/06/01
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We proposed to disapprove this rule because a rule provision
conflicts with section 110 and part D of the Act.
In the case of Rule 4101, Section 4.4 exempts agricultural sources
from the 20% opacity requirement. However, 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 these sources.
Consequently, we are unable to determine that Rule 4101 meets either
RACM, or BACM requirements described in Section 189 of the CAA.
Our September 29, 2003 proposed action contains more information on
the basis for this rulemaking, our evaluation of the submittal, and our
prior actions concerning the rule.
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received no comments on our proposed action.
III. EPA Action
No comments were submitted that change our assessment of the rule
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, EPA is finalizing a full disapproval of
the submitted rule. As a result, sanctions will be imposed unless EPA
approves subsequent SIP revisions that correct the rule deficiency
within 18 months of the effective date of this action. These sanctions
will be imposed under section 179 of the Act according to 40 CFR 52.31.
In addition, EPA must promulgate a federal implementation plan (FIP)
under section 110(c) unless we approve subsequent SIP revisions that
correct the rule deficiency within 24 months. Note that the submitted
rule has been adopted by the SJVUAPCD, and EPA's final disapproval does
not prevent the local agency from enforcing it.
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 disapproval 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 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 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 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).
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 disapproval action promulgated 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 disapproves
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
[[Page 1273]]
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 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'' (59 FR 22951, 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 final 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.
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 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.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective February 9, 2004.
K. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 8, 2004. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: December 18, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
? Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
? 1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
? 2. Section 52.242 is amended by adding paragraph (a)(4)(i) to read as
follows:
Sec. 52.242 Disapproved rules and regulations.
* * * * *
(a) * * *
(4) San Joaquin Valley Unified Air Pollution Control District.
(i) Rule 4101, Visible Emissions, submitted on December 6, 2001 and
adopted on November 15, 2001.
* * * * *
[FR Doc. 04-210 Filed 1-7-04; 8:45 am]
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