Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Yolo-Solano Air Pollution Control District (YSAPCD) and Kern County Air Pollution Control District (KCAPCD), SE Desert Portion

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 14-4-6250; FRL-5095-8]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, Yolo-Solano Air Pollution Control

District (YSAPCD) and Kern County Air Pollution Control District

(KCAPCD), SE Desert Portion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: EPA is proposing a limited approval and limited disapproval to

revisions to the California State Implementation Plan (SIP) which

concern the control of volatile organic compound (VOC) emissions from

the loading and storage of organic liquids.

The intended effect of proposing limited approval and limited

disapproval of these rules is to regulate emissions of VOC's in

accordance with the requirements of the Clean Air Act, as amended in

1990 (CAA or the Act). EPA's final action on this notice of proposed

rulemaking (NPRM) will incorporate these rules into the federally

approved SIP. EPA has evaluated the rules 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 these revisions, while strengthening the

SIP, also do not fully meet the CAA provisions regarding plan

submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before November 23, 1994.

ADDRESSES: Comments may be mailed to: Daniel A. Meer, Rulemaking

Section (A-5-3), Air and Toxics Division, U.S. Environmental Protection

Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Copies of the rule revisions and EPA's evaluation report of each

rule are available for public inspection at EPA's Region 9 office

during normal business hours. Copies of the submitted rule revisions

are also available for inspection at the following locations:

California Air Resources Board, 2020 L Street, Sacramento, CA 95814.

Kern County Air Pollution Control District (SE Desert), 2700 M Street,

suite 290, Bakersfield, CA 93301.

Yolo-Solano Air Pollution Control District, 1947 Galileo Ct., suite

103, Davis, CA 95616.

FOR FURTHER INFORMATION CONTACT: Duane F. James, Rulemaking Section (A-

5-3), Air and Toxics Division, U.S. Environmental Protection Agency,

Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone:

(415) 744-1191.

SUPPLEMENTARY INFORMATION:

Applicability

The rules being proposed for approval into the California SIP

include: YSAPCD's Rule 2.21 (including Rule 2.21.1), Vapor Control for

Organic Liquid Transfer and Storage (adopted by the District on

November 14, 1990), and KCAPCD's Rules 411, Storage of Organic Liquids,

and 413, Organic Liquid Loading (both adopted May 6, 1991). These rules

were submitted by the California Air Resources Board to EPA on May 13,

1991 (YSAPCD) and May 30, 1991 (KCAPCD).

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 Sacramento Metro Area, San Francisco-

Bay Area, and San Joaquin Valley Air Basin.1 43 FR 8964; 40 CFR

81.305. Because the Sacramento Metro Area and the San Francisco-Bay

Area were unable to reach attainment by the statutory attainment date

of December 31, 1982, California requested under pre-amended section

172(a)(2), and EPA approved, an extension of the attainment date to

December 31, 1987.2 40 CFR 52.238. The Sacramento Metro and San

Francisco-Bay Areas, and the San Joaquin Valley Air Basin did not

attain the ozone standard by the approved attainment date. On May 26,

1988, EPA notified the Governor of California, pursuant to section

110(a)(2)(H) of the pre-amended Act, that the YSAPCD and KCAPCD

portions of the SIP were 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. Public Law 101-549, 104 Stat. 2399, codified at

42 U.S.C. 7401-7671q. In amended section 182(a)(2)(A) of the CAA,

Congress statutorily adopted the requirement that nonattainment areas

fix their deficient reasonably available control technology (RACT)

rules for ozone and established a deadline of May 15, 1991, for states

to submit corrections of those deficiencies.

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\1\Yolo County lies within the Sacramento Metro Area and Solano

County lies in part in the Sacramento Metro Area and in part in the

San Francisco-Bay Area. At the time, Kern County was included in 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 was

designated as unclassified.

\2\This extension was not requested for Kern County. Thus, Kern

County's Attainment date remained December 31, 1982.

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On March 20, 1991, the San Joaquin Valley Unified Air Pollution

Control District was formed. This District has authority over the San

Joaquin Valley Air Basin portion of Kern County. Thus, as of March 20,

1991, the KCAPCD has authority only over the Southeast Desert Air Basin

portion of Kern County.

Section 182(a)(2)(A) applies to areas designated as nonattainment

prior to enactment of the amendments and classified as marginal or

above as of the date of enactment. It requires such areas to adopt and

correct RACT rules pursuant to pre-amended section 172(b) as

interpreted in EPA's pre-amendment guidance.3 EPA's SIP-Call used

that guidance to indicate the necessary corrections for specific

nonattainment areas. The Sacramento Metro Area is classified as a

serious ozone nonattainment area and the San Francisco-Bay Area is

classified as moderate;4 therefore, these two areas are subject to

the RACT fix-up requirement and the May 15, 1991 deadline. All of Kern

County is classified as serious.5 However, the Southeast Desert

Air Basin portion of Kern County was not a pre-enactment nonattainment

area and, therefore, was not designated and classified upon enactment

of the amended Act. For this reason, KCAPCD is not subject to the

section 182(a)(2)(A) RACT fixup requirement. However, the KCAPCD is

still subject to the requirements of EPA's SIP-Call because the SIP-

Call included all of Kern County. The substantive requirements of the

SIP-Call are the same as those of the statutory RACT fixup requirement.

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\3\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

Notice'' (Blue Book) (notice of availability was published in the

Federal Register on May 25, 1988); and the existing control

technique guidelines (CTG's).

\4\The Sacramento Metro Area and San Francisco-Bay Area retained

their designations and were classified by operation of law pursuant

to sections 107(d) and 181(a) upon the date of enactment of the CAA.

See 56 FR 56694 (November 6, 1991).

\5\ The San Joaquin Valley Air Basin portion of the KCAPCD

retained its nonattainment designation and was classified by

operation of law pursuant to sections 107(d) and 181(a) upon the

date of enactment of the CAA. The Southeast Desert Air Basin portion

of the KCAPCD was designated nonattainment on November 6, 1991. See

56 FR 56694 (November 6, 1991).

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The State of California submitted many RACT rules to EPA for

incorporation into its SIP on May 13, 1991 (YSAPCD) and on May 30, 1991

(KCAPCD). This document addresses EPA's proposed action for YSAPCD's

Rule 2.21 (including Rule 2.21.1), Vapor Control for Organic Liquid

Transfer and Storage (adopted by the District on November 14, 1990),

and KCAPCD's Rules 411, Storage of Organic Liquids, and 413, Organic

Liquid Loading (both adopted May 6, 1991). These submitted YSAPCD and

KCAPCD rules were found to be complete on July 10, 1991 and February

16, 1990, respectively, pursuant to EPA's completeness criteria that

are set forth in 40 CFR Part 51, Appendix V6 and are being

proposed for limited approval and limited disapproval.

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\6\ 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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YSAPCD's Rule 2.21 controls emissions of VOCs from organic liquid

(primarily gasoline) loading. As a subset of Rule 2.21, Rule 2.21.1

controls emissions from tank storage of organic liquids. KCAPCD's Rules

411 and 413 control VOC emissions during the storage and loading of

organic liquids, respectively. VOC's contribute to the production of

ground level ozone and smog. YSAPCD's Rule 2.21 and KCAPCD's Rules 411

and 413 were originally adopted as part of the districts' efforts to

achieve the National Ambient Air Quality Standard (NAAQS) for ozone and

have been revised in response to EPA's SIP-Call. YSAPCD's rule was also

submitted in response to the section 182(a)(2)(A) CAA requirement. The

following is EPA's evaluation and proposed action for YSAPCD Rule 2.21

and KCAPCD Rules 411 and 413.

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 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 the various EPA

policy guidance documents listed in footnote 3. Among those provisions

is the requirement that a VOC rule must, at a minimum, provide for the

implementation of RACT for stationary sources of VOC emissions. This

requirement was carried forth from the pre-amended Act.

For the purpose of assisting state and local agencies in developing

RACT rules, EPA prepared a series of Control Technique Guideline (CTG)

documents which specify the minimum requirements that a rule must

contain in order to be approved into the SIP. The CTG's are based on

the underlying requirements of the Act and specify the presumptive

norms for what is RACT for specific source categories. Under the CAA,

Congress ratified EPA's use of these documents, as well as other Agency

policy, for requiring States to ``fix-up'' their RACT rules. See

section 182(a)(2)(A). Three CTGs are applicable to YSAPCD Rule 2.21:

(1) ``Control of Volatile Organic Emissions from Bulk Gasoline

Plants,'' document EPA-450/2-77-035, (2) ``Control of Volatile Organic

Emissions from Petroleum Liquid Storage in External Floating Roof

Tanks,'' document EPA-450/2-78-047, and (3) ``Control of Volatile

Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof

Tanks,'' document EPA-450/2-77-036. Two of these CTGs are also

applicable to KCAPCD Rule 411: ``Control of Volatile Organic Emissions

from Petroleum Liquid Storage in External Floating Roof Tanks'' and

``Control of Volatile Organic Emissions from Petroleum Liquid Storage

in Fixed Roof Tanks. The CTG applicable to KCAPCD Rule 413 is ``Control

of Hydrocarbons from Tank Truck Gasoline Loading Terminals,'' document

EPA-450/2-77-026. Further interpretations of EPA policy are found in

the Blue Book. In general, these guidance documents have been set forth

to ensure that VOC rules are fully enforceable and strengthen or

maintain the SIP.

YSAPCD's submitted Rule 2.21, Vapor Control for Organic Liquid

Transfer and Storage, includes the following revisions of the current

SIP rule:

1. Test methods for determining vapor pressure and vapor tightness

have been added.

2. Provisions for equivalent or alternative control systems have

been deleted.

3. VOC emission limits of 0.65 pounds per 1,000 gallons transferred

have been added.

4. An exemption of facilities with a throughput of 20,000 gallons

per day has been reduced to 4,000 gallons per day. The exemption of all

tanks used in agriculture has been limited to those less than 550

gallons in capacity.

5. Requirements for recordkeeping have been added.

6. Requirements for submerged filling of tanks have been added.

There were no changes or additions to the subset Rule 2.21.1 which

addresses storage tank requirements.

KCAPCD's submitted Rule 411, Storage of Organic Liquids, includes

the following revisions to the current SIP rule:

1. The primary seal gap criteria have been made more stringent for

floating roofs.

2. Recordkeeping provisions for exemptions have been added.

3. Test methods for the determination of exempt compounds, true

vapor pressure, and control efficiency have been added.

4. The definitions section has been expanded making the rule

clearer and more enforceable.

KCAPCD's submitted Rule 413, Organic Liquid Loading, includes the

following revisions to the current SIP rule:

1. A definition of ``leaks'' and a test method for determining

leaks have been added.

2. A VOC emission limit of 0.08 pounds per 1,000 gallons

transferred has been added.

3. Test methods for the determination of compliance with the

emission limit have been added.

4. A requirement for vapor controls when loading exempt liquids

into a tank which previously contained nonexempt liquids (switch

loading) has been added.

5. Recordkeeping requirements for exempt facilities have been

added.

EPA has evaluated YSAPCD's submitted Rule 2.21 and KCAPCD's

submitted Rules 411 and 413 for consistency with the CAA, EPA

regulations, and EPA policy and has found that the revisions address

and correct many deficiencies previously identified by EPA. These

corrected deficiencies have resulted in clearer, more enforceable

rules.

Although YSAPCD's submitted Rule 2.21 and KCAPCD's submitted Rules

411 and 413 will strengthen the SIP, these rules still contain

deficiencies which were required to be corrected pursuant to the

section 182(a)(2)(A) requirement of Part D of the CAA. In YSAPCD's Rule

2.21, there is an incorrect reference to a test method for determining

compliance, and the type of facilities which have to meet the emission

limits set by the rule is not defined. In KCAPCD's Rule 411,

deficiencies include: (1) An exemption from EPA's new source review;

(2) a reference to a test method, which has not been approved by EPA;

and (3) a lack of recordkeeping requirements for exempt tanks. In

KCAPCD's Rule 413, there are no recordkeeping requirements to determine

if a facility needs to comply with the rule. A detailed discussion of

rule deficiencies can be found in the Technical Support Documents

(TSD's) for Rule 2.21 (September 30, 1993), Rule 411 (January 7, 1994),

and Rule 413 (December 1, 1993), which are available from the U.S. EPA,

Region 9 office. Because of these deficiencies, the rules are not

approvable pursuant to the section 182(a)(2)(A) of the CAA because they

are 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 deficiencies, EPA cannot grant full approval

of these rules under section 110(k)(3) and part D. Also, because the

submitted rules are not composed of separable parts which meet all the

applicable requirements of the CAA, EPA cannot grant partial approval

of the rules under section 110(k)(3). However, EPA may grant a limited

approval of the submitted rules 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 strengthen the SIP, EPA is proposing a limited

approval of YSAPCD's submitted Rule 2.21 and KCAPCD's submitted Rules

411 and 413 under sections 110(k)(3) and 301(a) of the CAA.

At the same time, EPA is also proposing a limited disapproval of

these rules because they contain deficiencies that have not been

corrected as required by section 182(a)(2)(A) of the CAA, and, as such,

the rules do 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 rules covered by this

NPRM have been adopted by YSAPCD and KCAPCD and are currently in effect

in those districts. EPA's final limited disapproval action will not

prevent the districts or EPA from enforcing these rules.

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.

Regulatory Process

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.

Limited approvals under sections 110 and 301 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, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the federal-state relationship

under the CAA, preparation of a regulatory flexibility analysis would

constitute federal inquiry into the economic reasonableness of state

action. The CAA forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. 7410(a)(2).

EPA's limited disapproval of the State request under sections 110

and 301 and subchapter I, part D of the CAA does not affect any

existing requirements applicable to small entities. Federal disapproval

of the state submittal does not affect its state enforceability.

Moreover, EPA's limited disapproval of the submittal does not impose

any new federal requirements. Therefore, EPA certifies that this

limited disapproval action does not have a significant impact on a

substantial number of small entities because it does not remove

existing requirements nor does it impose any new federal requirements.

The OMB has exempted this action from review under Executive Order

12866.

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. 7401-7671q.

Dated: October 11, 1994.

Felicia Marcus,

Regional Administrator.

[FR Doc. 94-26282 Filed 10-21-94; 8:45 am]

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