[Federal Register Volume 63, Number 152 (Friday, August 7, 1998)]
[Proposed Rules]
[Pages 42308-42310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21208]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 207-0086; FRL-6138-7]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, San Joaquin Valley Unified Air
Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
a revision to the San Joaquin Valley Unified Air Pollution Control
District's portion of the California State Implementation Plan (SIP)
that concerns the control of volatile organic compound (VOC) emissions
from a variety of sources.
The intended effect of proposing limited approval and limited
disapproval of this rule is to regulate emissions of VOCs in accordance
with the requirements of the Clean Air Act, as amended in 1990 (CAA or
the Act). EPA's final action on this proposed rule will incorporate
this rule into the federally approved SIP. EPA has evaluated the rule
and is proposing a simultaneous limited approval and limited
disapproval under provisions of the CAA regarding EPA action on SIP
submittals and general rulemaking authority because this revision,
while maintaining the SIP, does not fully meet the CAA provisions
regarding plan submissions and requirements for nonattainment areas.
DATES: Comments must be received on or before September 8, 1998.
ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office
[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the rule and EPA's evaluation report of the rule are
available for public inspection at EPA's Region IX office during normal
business hours. Copies of the submitted rule are also available for
inspection at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
San Joaquin Valley Unified Air Pollution Control District, 1999
Tuolumne Street, Suite #200, Fresno, CA 93721.
FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, [AIR-
4], Air Division, U.S. Environmental Protection Agency, Region IX, 75
Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-
1199.
SUPPLEMENTARY INFORMATION:
I. Applicability
San Joaquin Valley Unified Air Pollution Control District
(SJVUAPCD) Rule 4661, Organic Solvents is being proposed for approval
into the California SIP. This rule was submitted by the California Air
Resources Board (CARB) to EPA on March 10, 1998. Eighteen rules from
the San Joaquin Valley Air Basin's eight counties will be rescinded
from their respective SIPs upon final action by EPA on the version of
SJVUAPCD Rule 4661 submitted March 10, 1998. A detailed list of the
rules to be rescinded from the county SIPs can be found in the
Technical Support Document (TSD) for Rule 4661 (July 1, 1998), which is
available from the U.S. EPA, Region IX office.
II. Background
On March 3, 1978, EPA promulgated a list of ozone nonattainment
areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-
amended Act), that included the San Joaquin Valley Air Basin which
encompassed the air pollution control districts of the following eight
counties: Fresno, Kern,1 Kings, Madera, Merced, San Joaquin,
Stanislaus, and Tulare. 43 FR 8964; 40 CFR 81.305. Because some of
these areas were unable to meet the statutory attainment date of
December 31, 1982, California requested under section 172(a)(2), and
EPA approved, an extension of the attainment date to December 31,
1987.2 On May 26, 1988, EPA notified the Governor of
California, pursuant to section 110(a)(2)(H) of the pre-amended Act,
that the above district's portion of the SIP was inadequate to attain
and maintain the ozone standard and requested that deficiencies in the
existing SIP be corrected (EPA's SIP-Call). On November 15, 1990,
amendments to the 1977 CAA were enacted. Pub. L. 101-549, 104 Stat.
2399, codified at 42 U.S.C. 7401-7671q.
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\1\ At the time, Kern County included portions of two air
basins: the San Joaquin Valley Air Basin and the Southeast Desert
Air Basin. The San Joaquin Valley Air Basin portion of Kern County
was designated as nonattainment, and the Southeast Desert Air Basin
portion of Kern County was designated as unclassified. The Southeast
Desert portion of Kern County was subsequently redesignated as
nonattainment and classified as serious on November 6, 1991. See 56
FR 56694.
\2\ This extension was not requested for the following counties:
Kern, Kings, Madera, Merced, and Tulare. Thus, the attainment date
for these counties remained December 31, 1982.
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On March 20, 1991, the San Joaquin Valley Unified Air Pollution
Control District (SJVUAPCD) was formed. The SJVUAPCD has authority over
the San Joaquin Valley Air Basin, which includes all of the above eight
counties except for the Southeast Desert Air Basin portion of Kern
County. Thus Kern County Air Pollution Control District (Kern) still
exists, but only has authority over the Southeast Desert Air Basin
portion of Kern County. The San Joaquin Valley Area is classified as
serious.
The State of California submitted many rules to EPA for
incorporation into its SIP on March 10, 1998, including the rule being
acted on in this document. This document addresses EPA's proposed
action for SJVUAPCD Rule 4661, Organic Solvents. The SJVUAPCD adopted
Rule 4661 on December 17, 1992. This submitted rule was found to be
complete on May 21, 1998 pursuant to EPA's completeness criteria that
are set forth in 40 CFR Part 51, Appendix V 3 and is being
proposed for limited approval and limited disapproval.
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\3\ EPA adopted completeness criteria on February 16, 1990 (55
FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, revised
the criteria on August 26, 1991 (56 FR 42216).
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Rule 4661 controls the emission of volatile organic compounds
(VOCs) from organic solvent use. VOCs contribute to the production of
ground level ozone and smog. The eighteen county rules listed in the
TSD for this rule were originally adopted as part of the district's
effort to achieve the National Ambient Air Quality Standard (NAAQS) for
ozone. SJVUAPCD Rule 4661 is a new rule which was adopted to meet EPA's
SIP-Call and the section 110(a)(2)(A) CAA requirement and which will
supercede those eighteen county rules. The following is EPA's
evaluation and proposed action for SJVUAPCD Rule 4661.
III. EPA Evaluation and Proposed Action
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and EPA
regulations, as found
[[Page 42309]]
in section 110 and Part D of the CAA and 40 CFR Part 51 (Requirements
for Preparation, Adoption, and Submittal of Implementation Plans). The
EPA interpretation of these requirements, which forms the basis for
today's action, appears in ``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 was published in the Federal Register on May 25, 1988). In
general, this guidance document has been set forth to ensure that VOC
rules are fully enforceable and strengthen or maintain the SIP.
There is currently no version of SJVUAPCD Rule 4661, Organic
Solvents in the SJVUAPCD portion of the California SIP. All the major
requirements of SJVUAPCD Rule 4661, however, are derived from the
eighteen county SIP rules listed in the TSD for this rule. The SJVUAPCD
Rule 4661 submitted on March 10, 1998 includes the following
provisions:
Prohibits the discharge of more than 15 pounds per day or
3 pounds per hour of organic materials that come in contact with heat
unless controlled to 85% (Section 5.1),
Prohibits the discharge of more than 40 pounds per day or
8 pounds per hour of photochemically reactive solvent unless controlled
to 85% (Section 5.2),
Prohibits the discharge of more than 3,000 pounds per day
or 450 pounds per hour of non-photochemically reactive solvent unless
controlled to 85% (Section 5.3),
Requires emissions of organic materials that occur when
they are used for cleanup and that occur when drying products after
their removal from any operation be included with other emissions when
determining compliance with the rule (Sections 5.4 and 5.5),
Specifies acceptable forms of controls (Section 5.6),
Requires monitoring of all operating conditions necessary
to determine the degree and effectiveness of controls (Section 5.7),
Requires users of organic solvents to provide information
on the composition, properties, and consumption of each solvent used
(Section 5.8), and
Limits the daily disposal of photochemically reactive
solvent by any means which will permit its evaporation into the
atmosphere to 1.5 gallons (Section 5.9).
EPA has evaluated SJVUAPCD submitted Rule 4661 for consistency with
the CAA, EPA regulations, and EPA policy and has found that while Rule
4661 provides one set of requirements for the entire San Joaquin Valley
Air Basin, it fails to maintain the clarity and enforceability of the
original eighteen county rules that it seeks to replace.
Although approval of SJVUAPCD Rule 4661 and recision of the
eighteen county rules will maintain the SIP and alleviate problems
associated with the listing of all applicable requirements in Title V
source permits, Rule 4661 still contains a deficiency that is required
to be corrected pursuant to the section 110(a)(2)(A) and Part D
requirements of the CAA.
Section 4.2 states that Rule 4661 shall not apply to any source
which is in full compliance with the provisions of other applicable
rules in Regulation IV (Prohibitions). This exemption does not specify
that it applies only in situations where sources are in compliance with
other SIP-approved rules. One way the District can correct this
deficiency is by revising Section 4.2 to list the specific Regulation
IV rules that have been approved into the SIP. A detailed discussion of
this deficiency can be found in the TSD for this rule. Because of this
deficiency, the rule is not fully approvable pursuant to section
110(a)(2)(A) of the CAA because it is not consistent with the
interpretation of section 172 of the 1977 CAA as found in the Blue Book
and may lead to rule enforceability problems.
Because of the above deficiency, EPA cannot grant full approval of
this rule under section 110(k)(3) and part D. Also, because the
submitted rule is not composed of separable parts which meet all the
applicable requirements of the CAA, EPA cannot grant partial approval
of the rule under section 110(k)(3). However, EPA may grant a limited
approval of the submitted rule under section 110(k)(3) in light of
EPA's authority pursuant to section 301(a) to adopt regulations
necessary to further air quality by strengthening the SIP. The approval
is limited because EPA's action also contains a simultaneous limited
disapproval. In order to maintain the SIP, EPA is proposing a limited
approval of SJVUAPCD Rule 4661 under sections 110(k)(3) and 301(a) of
the CAA.
At the same time, EPA is also proposing a limited disapproval of
this rule because it contains a deficiency under section 110(a)(2)(A)
of the CAA, and, as such, the rule does not fully meet the requirements
of part D of the Act. Under section 179(a)(2), if the Administrator
disapproves a submission under section 110(k) for an area designated
nonattainment, based on the submission's failure to meet one or more of
the elements required by the Act, the Administrator must apply one of
the sanctions set forth in section 179(b) unless the deficiency has
been corrected within 18 months of such disapproval. Section 179(b)
provides two sanctions available to the Administrator: highway funding
and offsets. The 18 month period referred to in section 179(a) will
begin on the effective date of EPA's final limited disapproval.
Moreover, the final disapproval triggers the Federal implementation
plan (FIP) requirement under section 110(c). It should be noted that
the rule covered by this proposal has been adopted by the SJVUAPCD and
is currently in effect in the district. EPA's final limited disapproval
action will not prevent SJVUAPCD or EPA from enforcing this rule.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Orders 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866 review.
The proposed rule is not subject to E.O. 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
E.O. 12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 30l, and subchapter I, part D
of the CAA do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small
[[Page 42310]]
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its action 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).
C. Unfunded Mandates
Under Section 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
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 approval 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 approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 30, 1998.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 98-21208 Filed 8-6-98; 8:45 am]
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