# Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, El Dorado County Air Pollution Control District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-7988 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 4, 1994 ## Text 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). ----------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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] BILLING CODE 6560-50-F --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-7988. Public record. Not legal advice.