
[Federal Register: June 30, 2010 (Volume 75, Number 125)]
[Rules and Regulations]               
[Page 37727-37730]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn10-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0080; FRL-9169-3]

 
Disapproval of California State Implementation Plan Revisions, 
Monterey Bay 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 Monterey 
Bay Unified Air Pollution Control District (MBUAPCD) portion of the 
California State Implementation Plan (SIP). This action was proposed in 
the Federal Register on March 22, 2010. This revision concerns opacity 
standards related to multiple pollutants, including particulate matter 
(PM) emissions, from a wide variety of sources. Under authority of the 
Clean Air Act as amended in 1990 (CAA or the Act), this action 
identifies a deficiency that precludes approval of this SIP revision.

DATES: Effective Date: This rule is effective on July 30, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0080 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all

[[Page 37728]]

documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), 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: Joanne Wells, EPA Region IX, (415) 
947-4118, wells.joanne@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On March 22, 2010(75 FR 13468), EPA proposed to disapprove the 
following rule that was submitted for incorporation into the California 
SIP.

----------------------------------------------------------------------------------------------------------------
            Local agency                  Rule No.            Rule title            Revised         Submitted
----------------------------------------------------------------------------------------------------------------
MBUAPCD.............................             400   Visible Emissions......        12/15/04         03/07/08
----------------------------------------------------------------------------------------------------------------

    We proposed to disapprove this rule because one rule provision does 
not satisfy the requirements of section 110 and part D of the Act. 
Specifically:
     New section 3.2.3 places no time limitation on opacity 
between 20% and 40% for gas turbines except as defined in the District 
permit pursuant to new section 2.5. This is inconsistent with long-
standing national policy on excess emissions, which explains that SIP 
rules must ensure that emissions during startup conditions are 
minimized. We believe this could be addressed by adding rule text 
establishing appropriate time limitations on gas turbine startup, 
requiring sources to minimize time and emissions during startup, and 
demonstration in the staff report that the rule minimizes emissions 
during startup.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments.

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, this action will retain the version of 
Rule 400 approved in 2005 in the SIP. Sanctions will not be imposed 
under section 179 of the Act, because revision of Rule 400 is not a 
required submittal under the CAA and the Monterey Bay area continues to 
meet the NAAQS for multiple pollutants, including ozone and PM. A final 
disapproval would similarly not trigger the federal implementation plan 
(FIP) obligation under section 110(c).

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 action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
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.
    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 but simply disapprove requirements that the State is 
already imposing. 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 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 policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct

[[Page 37729]]

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'' (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 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

    EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it disapproves a 
State rule implementing a Federal standard.

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. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations.

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
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. The 
Executive Order has informed the development and implementation of 
EPA's environmental justice program and policies. Consistent with the 
Executive Order and the associated Presidential Memorandum, the 
Agency's environmental justice policies promote environmental 
protection by focusing attention and Agency efforts on addressing the 
types of environmental harms and risks that are prevalent among 
minority, low-income and Tribal populations.
    This action will not have disproportionately high and adverse human 
health or environmental effects on minority, low-income or Tribal 
populations because it maintains the level of environmental protection 
for all affected populations without having any disproportionately high 
and adverse human health or environmental effects on any population, 
including any minority or low-income population.

K. 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. 
section 804(2). This rule will be effective July 30, 2010.

L. 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 August 30, 2010. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements.


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    Dated: June 14, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.242 is amended by adding paragraph (a)(6) to read as 
follows:


Sec.  52.242  Disapproved rules and regulations.

    (a) * * *
    (6) Monterey Bay Unified Air Pollution Control District
    (i) Rule 400, Visible Emissions, submitted on March 7, 2008. Rule 
400 submitted on January 15, 2004, is retained.

[FR Doc. 2010-15759 Filed 6-29-10; 8:45 am]
BILLING CODE 6560-50-P

