Air quality implementation plans; approval and promulgation; various States: California,

[Federal Register: January 10, 2001 (Volume 66, Number 7)]

[Proposed Rules]

[Page 1927-1930]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr10ja01-41]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 169-0265; FRL-6931-9]

Revisions to the California State Implementation Plan, Imperial County Air Pollution Control District, San Joaquin Valley Unified Air Pollution Control District, and Ventura County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing a limited approval and limited disapproval of a revision to the Ventura County Air Pollution Control District (VCAPCD) portion of the California State Implementation Plan (SIP) concerning volatile organic compound (VOC) emissions from soil decontamination operations. We are also proposing full approval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State SIP concerning VOC emissions from municipal solid waste disposal sites and oil-effluent water separators. We are proposing action on local rules that regulate these emission sources 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.

DATES: Any comments must arrive by February 9, 2001.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR- 4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

You can inspect copies of the submitted rule revisions and EPA's technical support documents (TSDs) at our Region IX office during normal business hours. You may also see copies of the submitted rule revisions at the following locations:

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington DC 20460. California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814. Imperial County Air Pollution Control District, 150 South Ninth Street, El Centro, CA 92243. San Joaquin Valley Unified Air Pollution Control District, 1990 East Gettysburg Street, Fresno, CA 93726. Ventura County Air Pollution Control District, 669 County Square Drive, 2nd Floor, Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR- 4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 744-1135.

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

Table of Contents

1. The State's Submittal

   1. What rules did the State submit?

   2. Are there other versions of these rules?

   3. What are the changes in the submitted rules? II. EPA's Evaluation and Action.

   1. How is EPA evaluating the rules?

   2. Do the rules meet the evaluation criteria?

   3. What are the rule deficiencies?

   4. EPA recommendations to further improve the rules.

   5. Proposed action and public comment. III. Background information.

   1. Why were these rules submitted? IV. Administrative Requirements

1. The State's Submittal

   1. What Rules Did the State Submit?

      Table 1 lists the rules addressed by this proposal with the dates that they were adopted by local air agencies and submitted by the California Air Resources Board (CARB).

      Table 1.--Submitted Rules

      Local Agency

      Rule #

      Rule title

      Adopted Submitted

      ICAPCD...................................

      416 Oil-Effluent Water Separators.... 09/14/99 05/26/00 SJVUAPCD.................................

      4642 Solid Waste Disposal Sites....... 04/16/98 09/29/98 VCAPCD................................... 74.29 Soil Decontamination Operations.. 10/10/95 03/26/96

      [[Page 1928]]

      On October 6, 2000, January 26, 1999, and May 15, 1996, respectively, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

   2. Are There Other Versions of These Rules?

      We approved a version of ICAPCD Rule 416 into the ICAPCD portion of the SIP as rule 416, Oil-Effluent Water Separators, on January 27, 1981 (46 FR 8472).

      There are no previous versions of SJVUAPCD Rule 4642 in the SIP, although the District adopted an earlier version of this rule on July 20, 1995 and CARB submitted it to us on October 18, 1995. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittal.

      There are no previous versions of VCAPCD Rule 74.29 in the SIP.

   3. What Are the Changes in the Submitted Rules?

      Submitted ICAPCD Rule 416 has the following changes:

      The requirement of 90% by weight or greater reduction in vapor emission for a vapor recovery system was added.

      Compliance test methods, periodic inspection requirements, and a record retention period were added.

      Submitted SJVUAPCD Rule 4642 has the following requirements for a solid waste disposal site gas collection system:

      Must maintain surface concentration of total organic compounds of 1,000 ppmv (as methane) or less.

      Must maximize landfill gas extracted while preventing overdraw.

      Must achieve 98 percent by weight VOC destruction or outlet concentration of 20 ppmv (as methane) or less.

      Submitted VCAPCD Rule 74.29 has the following requirements:

      Prohibits soil aeration that emits VOC in concentration greater or equal to 50 ppmv (as hexane).

      Establishes VOC emission limits on gasses vented from vapor extraction, bioremediation, or bioventing systems.

      Prohibits in situ bioventing or bioremediation systems that emit fugitive VOC in concentrations greater or equal to 50 ppmv (as hexane).

      Requires notification by owner prior to underground gasoline storage tank excavation.

      Requires the covering of soil exposed during tank excavation.

      There are numerous exemptions to the rule that are discussed in the TSD.

      The TSDs have more information about all of these rules.

2. EPA's Evaluation and Action

   1. How Is EPA Evaluating the Rules?

      Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), and must not relax existing requirements (see sections 110(l) and 193). ICAPCD regulates a transitional ozone nonattainment area, SJVUAPCD regulates a serious ozone nonattainment area, and VCAPCD regulates a severe ozone nonattainment area. (See 40 CFR part 81). Therefore, ICAPCD Rule 416, SJVUAPCD Rule 4642, and VCAPCD Rule 74.29 must fulfill RACT.

      Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

      Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

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

      Model Volatile Organic Compound Rules for Reasonably Available Control Technology (June 1992).

   2. Do the Rules Meet the Evaluation Criteria?

      These rules strengthen the SIP by establishing more stringent emission limits, by clarifying monitoring, recording and recordkeeping provisions, and by adding two rules that were previously not in the SIP. These rules are largely consistent with the relevant policy and guidance regarding enforceability, RACT and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSD.

   3. What Are the Rule Deficiencies?

      The following provision in VCAPCD Rule 74.29 conflicts with section 110 and part D of the Act and prevents full approval of the SIP revision:

      (Section C.4) This section provides for case-by-case exemptions by the Director from the 0.08 lb/hr allowable emission rate for vapor extraction or bioremediation, if the operator can demonstrate compliance with VCAPCD Rule 51, Nuisance. This exemption is deficient, because it does not specify replicable criteria for an exemption nor require equivalent emissions reduction for an exempted source.

   4. EPA Recommendations To Further Improve the Rules

      The TSDs describe additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

   5. Proposed Action and Public Comment

      As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is proposing a limited approval of submitted VCAPCD Rule 74.29 to improve the SIP. If finalized, this action would incorporate the submitted rule into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the rule under section 110(k)(3). If this disapproval is finalized, sanctions will be imposed under section 179 of the Act unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months. These sanctions would be imposed as described in 59 FR 39832 (August 4, 1994). A final disapproval would also trigger the federal implementation plan (FIP) requirement under section 110(c). Note that the submitted rule has been adopted by the VCAPCD, and EPA's final limited disapproval would not prevent the local agency from enforcing it.

      As authorized in section 110(k)(3) of the Act, EPA is also proposing a full approval of ICAPCD Rule 416 and SJVUAPCD Rule 4642 to strengthen the SIP.

      We will accept comments from the public on these proposed actions for the next 30 days.

3. Background Information

   1. Why Were These Rules Submitted?

   VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

   [[Page 1929]]

   Table 2.--Ozone Nonattainment Milestones

   Date

   Event

   March 3, 1978..................... EPA promulgated a list of ozone nonattainment areas under the Clean Air Act as amended in 1977. 43 FR 8964; 40 CFR 81.305. May 26, 1988...................... EPA notified Governors that parts of their SIPs were inadequate to attain and maintain the ozone standard and requested that they correct the deficiencies (EPA's SIP- Call). See section 110(a)(2)(H) of the pre-amended Act. November 15, 1990................. Clean Air Act Amendments of 1990 were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. May 15, 1991...................... Section 182(a)(2)(A) requires that ozone nonattainment areas correct deficient RACT rules by this date.

4. Administrative Requirements

   1. Executive Order 12866

      The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

   2. Executive Order 13045

      Executive Order 13045, entitled 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.

   3. Executive Order 13084

      Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

      Today's proposed rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

   4. Executive Order 13132

      Executive Order 13132, entitled 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 acts on 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 proposed rule.

   5. 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 proposed rule will not have a significant impact on a substantial number of small entities because SIP actions under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP action 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).

      [[Page 1930]]

   6. 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 annual 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 proposed action does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This proposed Federal action acts on 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.

   7. 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.

      EPA believes that VCS are inapplicable to today's proposed action because it 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, Hydrocarbons, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compound.

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

      Dated: December 26, 2000. Felicia Marcus, Regional Administrator, Region IX.

      [FR Doc. 01-696Filed1-9-01; 8:45 am]

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