Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, El Dorado County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-12-4-6005; FRL-4857-4]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, El Dorado County Air Pollution

Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking (NPR).

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

a revision to the California State Implementation Plan (SIP) which

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

the loading, unloading, and storage of VOCs. The intended effect of

proposing limited approval and limited disapproval of these rules 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 notice of proposed rulemaking (NPR) will incorporate these

rules into the federally approved SIP. EPA has evaluated these 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 May 4, 1994.

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

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

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

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, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.

El Dorado County Air Pollution Control District, 7553 Green Valley

Road, Placerville, CA 95667-4197.

FOR FURTHER INFORMATION CONTACT: William Davis, Rulemaking Section (A-

5-3), Air & Toxics Division, Environmental Protection Agency, Region 9,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1183.

SUPPLEMENTARY INFORMATION:

Applicability

EPA is proposing a limited approval and limited disapproval of a

revision to the California SIP submitted by the El Dorado County Air

Pollution Control District (EDCAPCD) entitled Regulation IX, Air Toxic

Control Measures, Section A, Benzene, Rules 900 through 914. This

regulation was submitted by the California Air Resources Board (CARB)

to EPA on April 5, 1991.

Background

On September 12, 1979, EPA promulgated a list of ozone

nonattainment areas under the provisions of the 1977 Clean Air Act

(1977 CAA or pre-amended Act), which included a portion of the

EDCAPCD.1 44 FR 53083; 40 CFR 81.305. Because that portion of the

EDCAPCD was 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. 40 CFR 52.238. The EDCAPCD was not able to 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 EDCAPCD'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. 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. In addition, in section 182(b)(3), Congress amended the

Act by requiring Stage II gasoline vapor controls for moderate and

above ozone nonattainment areas.

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\1\The Tahoe Air Basin portion of EDCAPCD is designated

attainment for ozone, but the Mountain Counties portion of the

EDCAPCD is designated nonattainment for ozone.

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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 pre-amendment guidance.2 EPA's SIP-Call used that

guidance to indicate the necessary corrections for specific

nonattainment areas. The Tahoe Air Basin portion of the EDCAPCD is

designated attainment for ozone while the Mountain Counties portion,

which lies in the Sacramento Metropolitan Area, is classified as a

serious nonattainment area.3 Therefore, the Mountain Counties

portion of the EDCAPCD is subject to the RACT fix-up requirement and

the May 15, 1991 deadline. Rules 900-914 apply to the entire EDCAPCD.

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\2\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 (CTGs).

\3\The Mountain Counties portion of the Sacramento Metropolitan

Area retained its designation and was 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).

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Section 182(b)(3) applies to areas classified as moderate and

above. It requires owners or operators of gasoline dispensing stations

to install a vapor recovery system for emissions from vehicle fueling

operations (commonly known as Stage II vapor control). Facilities

selling 10,000 gallons or less per month and small businesses may be

exempted. Compliance dates range from May 15, 1991 to November 15,

1993, depending on the stage of construction on November 15, 1990, and

on the size of the facility.

The CARB submitted many revised RACT rules to EPA for incorporation

into its SIP on April 5, 1991, including the rules being acted on in

this document. This document addresses EPA's proposed action for

Regulation IX, Air Toxic Control Measures, Section A, Benzene, (rules

900 through 914). These 900 series rules were adopted by the EDCAPCD on

September 18, 1990. The rules were found to be complete on May 21, 1991

pursuant to EPA's completeness criteria set forth in 40 CFR part 51,

appendix V4 and are being proposed for limited approval and

limited disapproval.

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\4\EPA adopted completeness criteria on February 16, 1990

pursuant to (55 FR 5830) section 110(k)(1)(A) of the CAA and revised

the criteria on August 26, 1991 (56 FR 42216).

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Rules 900-914 control the emission of VOCs from the loading and

storage of organic liquids, primarily gasoline. VOCs contribute to the

production of ground level ozone and smog. The rules in Regulation IX

were originally adopted as part of EDCAPCD's effort to achieve or

maintain the National Ambient Air Quality Standard (NAAQS) for ozone

and have been revised in response to EPA's SIP-Call and the section

182(a)(2)(A) CAA requirement. Rules 900-914 replace rules 213 and 214

of the current SIP and were adopted to control hazardous benzene

emissions in addition to other VOCs. The following is EPA's evaluation

and proposed action for EDCAPCD's rules 900-914.

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 2. 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. The CTGs 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). The CTGs

applicable to rules 900-914 are: (1) EPA-450/2-77-026, Control of

Hydrocarbons from Tank Truck Gasoline Terminals; (2) EPA-450/1-77-035,

Control of Volatile Organic Emissions from Bulk Gasoline Plants; (3)

EPA-450/2-77-036, Control of Volatile Organic Emissions from Storage of

Petroleum Liquids in Fixed-Roof Tanks; (4) EPA 450/2-78-047, Control of

Volatile Organic Emissions from Petroleum Storage in External Floating

Roof Tanks; and (5) EPA 450/2-78-051, Control of Volatile Organic

Emission Leaks from Gasoline Tank Trucks and Vapor Collection Systems.

There was no guidance available for Stage II gasoline vapor recovery

from vehicle tanks when this regulation was being developed.5

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.

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\5\Guidance is currently available in a document entitled

``Technical Guidance-Stage II Vapor Recovery Systems for Control of

Vehicle Refueling Emissions at Gasoline Dispensing Facilities'',

Volumes I and II, EPA-450/3-91-022a and -022b. Future revisions of

Stage II regulations should follow this guidance.

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The EDCAPCD's rules 900-914 provide significant revisions to the

existing SIP rules. These revisions include:

1. The addition and expansion of definitions of terms used in the

rules.

2. The addition of phase II (stage II) gasoline vapor recovery

provisions.

3. Expansion of operation and maintenance, delivery vessel, and

transfer requirements.

4. Addition of standards for storage tanks.

5. Addition of test methods for determining compliance.

6. Addition of administrative provisions covering permits,

penalties, enforcement, and recordkeeping.

EPA has evaluated EDCAPCD's rules 900-914 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. Furthermore, the addition of more stringent limits and Stage II

vapor controls in the revised rules should lead to more emission

reductions.

Although the EDCAPCD's rules 900-914 will strengthen the SIP, the

rules still contain deficiencies that must be corrected pursuant to the

requirements of sections 182(a)(2)(A) and part D of the CAA. In

summary, the deficiencies relate to the lack of a specific definition

of the facilities to which the rules apply, improper definition of test

methods, Control Officer discretion to require unspecified control

equipment, and a higher throughput exemption than allowed by section

182(b)(3) of the CAA.

A detailed description of specific deficiencies can befound in the

Technical Support Document for the regulation dated 4/29/93, which is

available from the EPA, Region 9 office. Because of these deficiencies,

the regulation is not approvable pursuant to either section

182(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

or CAA section 182(b)(3). These deficiencies 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 regulation is not composed of separable parts which meet all

the applicable requirements of the CAA, EPA cannot grant partial

approval of the regulation under section 110(k)(3). However, EPA may

grant a limited approval of the submitted regulation 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 disapproval6. In order to strengthen the SIP,

EPA is proposing a limited approval of EDCAPCD's submitted rules 900-

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

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\6\Since the Tahoe Basin is in ozone attainment, regulations

pertaining to that area are not required to meet RACT. Therefore,

the limited disapproval does not apply to regulations for the Tahoe

Air Basin.

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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. In

addition, the rules do not meet the requirements of section 182(b)(3)

of the CAA.

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 at the

time EPA publishes final notice of this disapproval. Moreover, the

final disapproval will trigger the Federal implementation plan (FIP)

requirement under section 110(c). It should be noted that the rules

covered by this NPR have been adopted by the EDCAPCD and are currently

in effect in the District. EPA's limited disapproval action in this NPR

does not prevent the District or EPA from fully 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.

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future document will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and Table 3 SIP revisions (54 FR 222) from the

requirements of section 3 of Executive Order 12291 for 2 years. The EPA

has submitted a request for a permanent waiver for Table 2 and Table 3

SIP revisions. The OMB has agreed to continue the waiver until such

time as it rules on EPA's request. This request continues in effect

under Executive Order 12866 which superseded Executive Order 12291 on

September 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Ozone, Reporting and record keeping

requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: March 23, 1994.

Felicia Marcus,

Regional Administrator.

[FR Doc. 94-7988 Filed 4-1-94; 8:45 am]

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