[Federal Register Volume 80, Number 226 (Tuesday, November 24, 2015)]
[Proposed Rules]
[Pages 73156-73160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29802]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2015-0545; FRL-9937-27-Region 9]
Disapproval of California Air Plan Revisions, South Coast Air
Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove revisions to the South Coast Air Quality Management District
(SCAQMD) portion of the California State Implementation Plan (SIP)
concerning Vehicle Scrapping, Employee Trip Reduction, and procedures
for the hearing board concerning variances and subpoenas.
[[Page 73157]]
We are proposing action on local rules that regulate these activities
under the Clean Air Act (CAA or the Act). We are taking comments on
this proposal and plan to follow with a final action.
DATES: Any comments must arrive by December 24, 2015.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2015-0545, by one of the following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
2. Email: [email protected].
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 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 www.regulations.gov or email.
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 email directly to EPA, your email
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. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses.
Docket: Generally, documents in the docket for this action are
available electronically at 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 at www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material, large maps), 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: Idalia P[eacute]rez, EPA Region IX,
(415) 972-3248, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rules?
II. EPA's Evaluation and Action
A. How is the EPA evaluating these rules?
B. Do the rules meet the evaluation criteria?
C. What are the identified rule deficiencies?
D. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rules did the State submit?
Table 1 lists the rules proposed for disapproval with the date that
they were adopted or amended and submitted by the California Air
Resources Board (CARB).
Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
Adopted or
Local agency Rule No. Rule title amended Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD............................. 1610 Old-Vehicle Scrapping...... 05/09/97 06/03/97
SCAQMD............................. 2202 On-Road Motor Vehicle 10/09/98 06/03/99
Mitigation Options.
SCAQMD............................. 503.1 Ex Parte Petitions for 02/05/88 02/07/89
Variances.
SCAQMD............................. 504 Rules from which Variances 01/05/90 05/13/91
Are Not Allowed.
SCAQMD............................. 511.1 Subpoenas.................. 02/05/88 02/07/89
----------------------------------------------------------------------------------------------------------------
On December 3, 1997, the submittal for SCAQMD Rule 1610 was deemed
by operation of law to meet the completeness criteria in 40 CFR part
51, appendix V, which must be met before formal EPA review. On December
3, 1999, the submittal for SCAQMD Rule 2202 was deemed by operation of
law to meet the completeness criteria. On May 5, 1989, the EPA
determined that the submittal for SCAQMD Rules 503.1 and 511.1 met the
completeness criteria. On July 10, 1991, the EPA determined that the
submittal for SCAQMD Rule 504 met the completeness.
B. Are there other versions of these rules?
There are no previous versions of Rule 1610 in the SIP, although
the SCAQMD adopted earlier versions of this rule on 02/11/94, 10/13/95,
02/08/96 and 04/11/97, and CARB submitted them to us on 07/13/94, 10/
18/96, 10/18/96 and 06/03/97 respectively. There are no previous
versions of Rule 2202 in the SIP, although the SCAQMD adopted earlier
versions of this rule on 12/08/95, 03/08/96 and 11/08/96, and CARB
submitted them to us on 11/26/96, 11/26/96 and 12/19/97 respectively.
There are no previous versions of Rules 503.1 and 511.1. There are no
previous versions of Rule 504 in the SIP, although the SCAQMD adopted
an earlier version of this rule on 02/05/88. While we can only act on
the most recently submitted version, we have reviewed materials
provided with previous submittals.
C. What is the purpose of the submitted rules?
Nitrogen oxides (NOX) and volatile organic compounds
(VOCs) help produce ground-level ozone, smog and particulate matter
(PM), which harm human health and the environment. Section 110(a) of
the CAA requires States to submit regulations that control VOC and
NOX emissions. Rule 1610 is a voluntary rule with the goal
of reducing motor vehicle exhaust emissions of VOC, NOX,
carbon monoxide (CO), and PM by issuing mobile source emission
reduction credits (MSERCs) in exchange for the scrapping of old, high
emitting vehicles. Rule 2202 requires employers with 250 or more full
or part-time employees at a worksite to reduce mobile source emissions
of VOC, NOX and CO generated from employee commutes. The
EPA's technical support documents (TSDs) have more information about
rules 1610 and 2202.
Rules 503.1 describes procedures for how sources can apply for ex
parte variances. Rule 504 specifies rules for which the SCAQMD hearing
board will not grant variances. Rule 511.1
[[Page 73158]]
describes procedures for the hearing board regarding subpoenas.
II. EPA's Evaluation and Action
A. How is the EPA evaluating these rules?
SIP rules must be enforceable (see CAA section 110(a)(2)), must not
interfere with applicable requirements concerning attainment and
reasonable further progress or other CAA requirements (see CAA section
110(l)), and must not modify certain SIP control requirements in
nonattainment areas without ensuring equivalent or greater emissions
reductions (see CAA section 193). In addition, pursuant to CAA section
110(i), neither EPA nor a state may revise a 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.
Generally, SIP rules must require Reasonably Available Control
Technology (RACT) for each category of sources covered by a Control
Techniques Guidelines (CTG) document as well as each major source of
VOCs and NOX in ozone nonattainment areas classified as
moderate or above (see CAA section 182(b)(2) and 182(f)). The SCAQMD
regulates an ozone nonattainment area classified as extreme for the
1997 and 2008 8-hour ozone standards (40 CFR 51.305). In addition, SIP
rules must implement Reasonably Available Control Measures (RACM) in
moderate PM2.5 nonattainment areas (see CAA sections
172(c)(1) and 189(a)(1)(C)). The SCAQMD regulates a PM2.5
nonattainment area classified as moderate for the annual and 24-hour
standards (40 CFR 51.312). A RACM evaluation is generally performed in
context of a broader plan.
Guidance and policy documents that we use to evaluate
enforceability, revision/relaxation and rule stringency requirements
for the applicable criteria pollutants include the following:
1. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies,
and Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January
11, 1990).
3. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
4. ``Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency,'' EPA from J. Craig Potter,
Thomas L. Adams Jr., Francis S. Blake, September 23, 1987.
5. ``Guidance an Enforceability Requirements for Limiting
Potential to Emit through SIP and Sec. 112 Rules and General
Permits'' EPA from Kathie A. Stein, January 25, 1995.
B. Do the rules meet the evaluation criteria?
EPA supports SCAQMD efforts to implement nontraditional and
innovative strategies for reducing air pollutant emissions, including
commuter programs to reduce the frequency that employees drive alone to
work, and programs to incentivize early adoption and turnover to
cleaner, less-polluting mobile sources.\1\ Nonetheless, we have
identified several provisions in these rules that do not meet the
evaluation criteria. These deficiencies are summarized below and
discussed further in the TSDs. Because these deficiencies are
significant enough to prevent our approval of these rules, we have not
attempted to identify all other potential approvability issues, and are
not providing a detailed analysis of all the evaluation criteria listed
above. While we cannot propose to approve SCAQMD Rules 1610 and 2202 at
this time, we commend SCAQMD's leadership in developing and
implementing creative programs like these for many years and we commit
to continued collaboration to address SCAQMD's air quality challenges.
---------------------------------------------------------------------------
\1\ See, e.g., U.S. EPA, Transportation and Climate Division,
Office of Transportation and Air Quality, ``Commuter Programs:
Quantifying and Using Their Emission Benefits in SIPs and
Conformity'' (February 2014) and Memorandum from Richard D. Wilson,
Acting Assistant Administrator for Air and Radiation, to EPA
Regional Administrators, re: ``Guidance on Incorporating Voluntary
Mobile Source Emission Reduction Programs in State Implementation
Plans (SIPs)'' (October 1997).
---------------------------------------------------------------------------
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 in
Rules 503.1 and 504 are deficient for various reasons, including their
failure to address the fact that a state- or district-issued variance
has no effect on enforcing the underlying federal requirement unless
the variance is submitted to and approved by EPA as a SIP revision.
Therefore, the inclusion of these rules in the SIP is inconsistent with
the Act and may be confusing to regulated industry and the general
public.
States and Districts can adopt various provisions describing local
agency investigative or enforcement authority, including the authority
to issue subpoenas such as in Rule 511.1, to demonstrate adequate
enforcement authority under section 110(a)(2) of the Act. These rules
should not be approved into the applicable SIP, however, to avoid
potential conflict with EPA's independent authorities provided in CAA
section 113, section 114 and elsewhere.
C. What are the identified rule deficiencies?
The deficiencies listed below are some of the provisions that of
the submitted rules that do not satisfy the requirements of section 110
and part D of Title I of the Act and prevent full approval of the SIP
submittals.
We propose to disapprove the SIP revision for Rule 1610 based at
least in part on the following deficiencies:
1. The Section (e)(2) requirement that engines of scrapped vehicles
be destroyed is insufficiently federally enforceable for various
reasons.
2. The Section (f)(2)(A) requirement that the vehicle be registered
for two years within SCAQMD is not fully enforceable by allowing the
Executive Officer to approve different documentation.
3. The Section (g) requirement of a visual and functional
inspection of the vehicle has no recordkeeping requirements.
4. There is no recordkeeping requirement to demonstrate compliance
with the Section (g)(1) requirement that vehicles be driven under their
own power to the scrapping site.
5. There is no requirement to maintain records for the life of the
MSERCs.
We propose to disapprove the SIP revision for Rule 2202 based at
least in part on the following deficiencies:
1. Per Section (f)(1), the rule relies on Regulation XVI, which is
not currently in the SIP.
2. Per Section (f)(3), the rule relies on AQIP (Rule 2501), which
is not currently in the SIP.
3. Per Section (f)(4), the rule relies on emission reduction
strategies approved on a case-by-case basis by the Executive Officer.
4. Per Section (g)(4), the rule relies on vehicle miles travelled
reduction programs approved on a case-by-case basis by the Executive
Officer.
We propose to disapprove the SIP revision for Rules 503.1 and 504
because they conflict with CAA sections 110(a) and (i) and fail to
address that a state- or district-issued variance has no effect on
enforcing the underlying federal requirement unless the variance is
submitted to and approved by EPA as a SIP revision.
[[Page 73159]]
We propose to disapprove the SIP revision for Rule 511.1 to avoid
potential conflict with EPA's independent authorities provided in CAA
section 113, section 114 and elsewhere.
D. Proposed Action and Public Comment
As authorized in section 110(k)(3) of the Act, we are proposing
full disapproval of the submitted SCAQMD Rules 1610, 2202, 503.1, 504,
and 511.1. There are no sanctions or Federal Implementation Plan (FIP)
implications should EPA finalize this disapproval. Sanctions would not
be imposed under CAA section 179(b) because the submittal of Rules 1610
and 2202 is discretionary (i.e., not required to be included in the
SIP). A FIP would not be imposed under CAA section 110(c)(1) because
the disapproval does not reveal a deficiency in the SIP that such a FIP
must correct. Specifically: (1) Rule 1610 is voluntary and only serves
to provide for an alternative method of compliance for stationary and
other emission sources subject to other District regulations that allow
the use of credits as a compliance option; and (2) Rule 2202 is not a
required CAA submittal because the CAA gives state and local agencies
discretion, but does not require, employers ``to implement programs to
reduce work-related vehicle trips and miles travelled by employees''
(see CAA section 182(d)(1)(B)). Additionally, at this time, we have not
credited emission reductions from Rules 1610 or 2202 in an approved SIP
and we are not aware of a SCAQMD plan submitted to EPA that relies on
emission reductions from these rules to fulfill a CAA requirement.
Accordingly, the failure of the SCAQMD to adopt revisions to Rules 1610
and 2202 would not adversely affect the SIP's compliance with the CAA's
requirements, such as the requirements for section 182 ozone RACT,
reasonable further progress, and attainment demonstrations. Rules
503.1, 504 and 511.1 regulate hearing board procedures and do not
control emission sources or otherwise generate emission reductions nor
are they required elements of the SIP. Thus, EPA does not need to
impose sanctions or promulgate a FIP upon their disapproval. Note that
the submitted rules have been adopted by the SCAQMD, and a final
disapproval by the EPA would not prevent the local agency from
enforcing them or the revised versions of these rules subsequently
adopted by SCAQMD as a matter of State law.
We will accept comments from the public on the proposed disapproval
for the next 30 days.
III. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under the E.O.
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.,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. 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. For purposes of assessing the impacts of this rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This proposed rule
does not impose any requirements or create impacts on small entities.
This proposed SIP disapproval under section 110 and subchapter I, part
D of the Clean Air Act will not in-and-of itself create any new
requirements but simply disapproves certain State requirements for
inclusion into the SIP. Accordingly, it affords no opportunity for EPA
to fashion for small entities less burdensome compliance or reporting
requirements or timetables or exemptions from all or part of the rule.
Therefore, this action will not have a significant economic impact on a
substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538, for State, local, or tribal governments or the private
sector. EPA has determined that the proposed disapproval action 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 action proposes to
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
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), 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.''
This action does not have federalism implications. It 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
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
[[Page 73160]]
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
rules EPA is proposing to disapprove would not apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, and EPA notes that it will
not impose substantial direct costs on tribal governments or preempt
tribal law. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets E.O. 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 E.O. has the
potential to influence the regulation. This action is not subject to
E.O. 13045 because it is not an economically significant regulatory
action based on health or safety risks subject to Executive Order 13045
(62 FR 19885, April 23, 1997). This proposed SIP disapproval under
section 110 and subchapter I, part D of the Clean Air Act will not in-
and-of itself create any new regulations but simply disapproves certain
State requirements for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (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(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes federal executive policy on environmental justice. Its main
provision directs federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 30, 2015.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2015-29802 Filed 11-23-15; 8:45 am]
BILLING CODE 6560-50-P