Air quality implementation plans; approval and promulgation; various States: California,
[Federal Register: November 19, 1999 (Volume 64, Number 223)]
[Proposed Rules]
[Page 63268-63271]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no99-29]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 235-184; FRL-6478-2]
Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Tehama County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA proposes a limited approval of revisions to the California State Implementation Plan (SIP) concerning control of volatile organic compound (VOC) emissions from organic solvents.
The intended effect of proposing limited approval of this rule is to regulate emissions of VOCs in accordance with the requirements of the Clean Air Act, as amended in 1990
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(CAA or the Act). EPA's final action on this proposed rulemaking will incorporate this rule into the federally approved SIP. EPA has evaluated the rule and is proposing a limited approval under provisions of the CAA regarding EPA action on SIP submittals and general rulemaking authority because these revisions, while strengthening the SIP, also do not fully meet the CAA provisions regarding plan submissions.
DATES: Comments must be received on or before December 20, 1999.
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 is available for public inspection at EPA's Region 9 office during normal business hours. Copies of the submitted rule is also available for inspection at the following locations:
California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814. Tehama County Air Pollution Control District, 1750 Walnut Street, P.O. Box 38, Red Bluff, CA 96080.
FOR FURTHER INFORMATION CONTACT: Andrew Steckel, Rulemaking Office, (AIR-4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901; Telephone: (415) 744-1185.
SUPPLEMENTARY INFORMATION:
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Applicability
The rule being proposed for limited approval into the California SIP is: Tehama County Air Pollution Control District (THCAPCD) Rule 4.22, Industrial Use of Organic Solvents. This rule was submitted by the California Air Resources Board (CARB) to EPA on November 25, 1987.
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Background
40 CFR 81.305 provides the attainment status designations for air districts in California. Tehama County is listed as being in attainment for the national ambient air quality standard (NAAQS)for ozone. Therefore for the purpose of controlling ozone, this rule only needs to comply with section 110 of the Act.
The State of California submitted many revised rules to EPA for incorporation into its SIP on November 25, 1987, including the rule being acted on in this document. This document addresses EPA's proposed action for Rule 4.22, Industrial Use of Organic Solvents. Tehama County adopted Rule 4.22 on August 4, 1987. This submitted rule is being proposed for limited approval. Rule 4.22 controls the emission of volatile organic compounds (VOCs) from industrial use of organic solvents. VOCs are a precursor for ozone. The following is EPA's evaluation and proposed action for THCAPCD Rule 4.22.
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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 in section 110 of the CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and Submittals of Implementation Plans). The EPA interpretation of these requirements, which forms the basis for today's action, appears in various EPA policy guidance documents.‹SUP›1‹/SUP› THCAPCD's Rule 4.22 applies to a source category that is not covered by an applicable CTG and therefore state and local agencies may determine what controls are required by reviewing the operation of facilities subject to the regulation and evaluating regulations for similar sources in other areas. Further interpretations of EPA policy are found in the Blue Book, referred to in footnote 1. In general, the EPA guidance documents have been set forth to ensure that VOC rules are fully enforceable and strengthen or maintain the SIP. While Tehama County is in attainment with the ozone NAAQS, many of the general SIP requirements regarding enforceability, for example, are still appropriate for this rule.
\1\ Among other things, the pre-amendment guidance consists of those 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 document'' (Blue Book) (notice of availability was published in the Federal Register on May 25, 1988); and the existing control technique guidelines (CTGs).
There is currently no version of THCAPCD, Rule 4.22, Industrial use of Organic Solvents in the SIP. The submitted rule includes the following significant provisions:
‹bullet› Section (a) a prohibition of discharges of more than 15 lbs of VOCs from any article, machine, equipment or contrivance in which organic solvents or any material containing organic solvents comes into contact with flame or is baked, heat cured, or heat polymerized, in the presence of oxygen at temperatures above 400 deg.F.
‹bullet› Section (b) a prohibition against discharging more than 40 lbs of VOCs from any article, machine, equipment or contrivance used under conditions other than described under (a).
‹bullet› The rule allows the use of emission control equipment to reduce the discharge to no more than the limits specified in sections (a) and (b).
‹bullet› Section (d)(1) establishes a VOC daily maximum emission limit of 450 lbs for facilities applying polyester resins in fiberglass reinforced plastic fabrication.
‹bullet› Incorporates by reference VOC emission limits and other provisions contained in 40 CFR 52.254, November 12, 1973, Volume 38, No. 217.
EPA has evaluated THCAPCD's submitted Rule 4.22 for consistency with the CAA, EPA regulations, and EPA policy and has found that the rule will strengthen the SIP. However the rule contains the following deficiencies:
‹bullet› A director's discretion to choose and approve test methods to determine conformance,
‹bullet› Lack of specified test methods or monitoring protocol,
‹bullet› No recordkeeping provisions.
A detailed discussion of the rule deficiencies can be found in the Technical Support Document for THCAPCD Rule 4.22, which is available from the U.S. EPA, Region IX office.
Because the deficiencies identified in this rule may cause enforceability problems, EPA cannot grant full approval under 110(k)(3). Also, because the submitted rule is not composed of separable parts which meet all the applicable parts 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 to advance the Act's air quality protection goals by strengthening the SIP. In order to strengthen the SIP by advancing the ozone air quality protection goal of the Act, EPA is proposing a limited approval of THCAPCD's Rule 4.22 under sections 110(k)(3) and 301(a) of the Act. However this limited approval would not approve Rule 4.22 as satisfying any other specific requirement of the act, nor would it constitute full approval of Rule 4.22 pursuant to section 110(k)(3). Rather, a limited approval of this rule by EPA would mean that the emission limitations and other control measure requirements become part of the California SIP and are federally enforceable by EPA. See, e.g. sections 302(q) and 113 of the Act.
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It should be noted that the rule covered by this proposed rulemaking has been adopted by and is currently in effect in TCAPCD. EPA's final limited approval action will not prevent THCAPCD or EPA from enforcing this rule.
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Administrative Requirements
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Executive Order 12866
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order (E.O.) 12866, Regulatory Planning and Review.
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Executive Order 13132
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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
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Executive Order 13045
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 E.O. 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 E.O. 13045 because it is does not involve decisions intended to mitigate environmental health or safety risks.
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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 Office of Management and Budget, 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 rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.
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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 final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. 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).
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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 approval action promulgated 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 Federal action approves 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping
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requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 5, 1999. Laura Yoshii, Acting Regional Administrator, Region IX.
[FR Doc. 99-30237Filed11-18-99; 8:45 am]
BILLING CODE 6560-50-P
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