Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; Butte County Air Pollution Control District, Mojave Desert Air Quality Management District, Monterey Bay Unified Air Pollution Control District, Santa Barbara County Air Pollution Control District, and Yolo-Solano Air Quality Management District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 37-3-7097; FRL-5264-9]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision; Butte County Air Pollution Control

District, Mojave Desert Air Quality Management District, Monterey Bay

Unified Air Pollution Control District, Santa Barbara County Air

Pollution Control District, and Yolo-Solano Air Quality Management

District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA is proposing to approve revisions to the California State

Implementation Plan (SIP) which concern the control of volatile organic

compound (VOC) emissions from the manufacture and application of

cutback and emulsified asphalt materials.

The intended effect of proposing approval 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 (NPRM) will incorporate these

rules into the federally approved SIP. EPA has evaluated each of these

rules and is proposing to approve them under provisions of the CAA

regarding EPA action on SIP submittals, SIPs for national primary and

secondary ambient air quality standards, and plan requirements for

nonattainment areas.

DATE: Comments must be received on or before August 28, 1995.

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

Section [A-5-3], Air and Toxics Division, U.S. Environmental Protection

Agency, Region IX, 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, Stationary Source Division, Rule

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

Butte County Air Pollution Control District, 9287 Midway, Suite 1A,

Durham, CA 95938.

Mojave Desert Air Quality Management District, 15428 Civic Drive,

Victorville, CA 92392.

Monterey Bay Unified Air Pollution Control District, 24580 Silver

Cloud Court, Monterey, CA 93940.

Santa Barbara County Air Pollution Control District, 26 Castilian

Drive B-23, Goleta, CA 93117.

Yolo-Solano Air Quality Management District, 1947 Galileo Court,

Suite 103, Davis, CA 95616.

FOR FURTHER INFORMATION CONTACT: Patricia A. Bowlin, Rulemaking Section

[A-5-3], Air and Toxics Division, U.S. Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415)

744-1188.

SUPPLEMENTARY INFORMATION:

Applicability

The rules being proposed for approval into the California SIP

include: Butte County Air Pollution Control District (BCAPCD) Rule 241,

Cutback and Emulsified Asphalt; Mojave Desert Air Quality Management

District (MDAQMD) Rule 1103, Cutback and Emulsified Asphalt; Monterey

Bay Unified Air Pollution Control District (MBUAPCD) Rule 425, Use of

Cutback Asphalt; Santa Barbara County Air Pollution Control District

(SBCAPCD) Rule 329, Cutback and Emulsified Asphalt Paving Materials;

and Yolo-Solano Air Quality Management District (YSAQMD) Rule 2.28,

Cutback and Emulsified Asphalts. These rules were submitted by the

California Air Resources Board to EPA on May 13, 1993; December 22,

1994; November 18, 1993; June 19, 1992; and November 30, 1994

respectively.

Background

On March 3, 1978, EPA promulgated a list of ozone nonattainment

areas under the provisions of the Clean Air Act, as amended in 1977

(1977 CAA or pre-amended Act), that included the Chico Area, the

Southeast Desert Modified AQMA Area, the Monterey Bay Area, the Santa

Barbara-Santa Maria-Lompoc Area, and the Sacramento Metro Area 1.

43 FR 8964; 40 CFR 81.305. Because these areas (with the exception of

the Chico Area) were unable to meet the statutory attainment date of

December 31, 1982, California requested under section 172(a)(2), and

EPA approved, an extension of the attainment date to December 31, 1987.

[40 CFR 52.222] On May 26, 1988, EPA notified the Governor of

California, pursuant to section 110(a)(2)(H) of the pre-amended Act,

that the above districts' portions of the California 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, the Clean Air Act Amendments of 1990 were enacted.

Pub. L. 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.

\1\ The BCAPCD lies within the Chico Area. Portions of MDAQMD

lie within Southeast Desert Modified AQMA Area. YSAQMD lies within

the Sacramento Metro Area.

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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

[[Page 38536]]

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. Southeast

Desert Modified AQMA Area is classified as severe-17. Monterey Bay Area

and Santa Barbara-Santa Maria-Lompoc Area are classified as moderate.

Sacramento Metro Area is classified as severe.3 Therefore, all

these areas (with the exception of the Chico Area, which is classified

as transitional) were subject to the RACT fix-up requirement and the

May 15, 1991 deadline.

\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\ Chico Area, Southeast Desert Modified AQMA Area, Monterey

Bay Area, and Santa Barbara-Santa Maria-Lompoc Area retained their

designations of nonattainment and were classified by operation of

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

enactment of the CAA. See 55 FR 56694 (November 6, 1991). Sacramento

Metro Area was reclassified from serious to severe effective on June

1, 1995. See 60 FR 20237 (April 25, 1995).

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The Chico Area is subject to Section 185A and Section 172(c)(1)

instead of Section 182(a)(2)(A). Section 185A specifically exempts

transitional areas from Subpart 2 (of Title I, Part D), including any

RACT fix-up obligations, until December 31, 1991. Section 172(c)(1)

requires transitional areas to correct any RACT deficiencies regarding

enforceability (see General Preamble, 57 FR 13525).

The State of California submitted many revised RACT rules for

incorporation into its SIP on May 13, 1993; December 22, 1994; November

18, 1993; June 19, 1992; and November 30, 1994, including the rules

being acted on in this document. This document addresses EPA's proposed

action for BCAPCD Rule 241, Cutback and Emulsified Asphalt; MDAQMD Rule

1103, Cutback and Emulsified Asphalt; MBUAPCD Rule 425, Use of Cutback

Asphalt; SBCAPCD Rule 329, Cutback and Emulsified Asphalt Paving

Materials; and YSAQMD Rule 2.28, Cutback and Emulsified Asphalts. The

BCAPCD adopted Rule 241 on January 12, 1993; the MDAQMD adopted Rule

1103 on December 21, 1994; the MBUAPCD adopted Rule 425 on August 25,

1993; the SBCAPD adopted rule 329 on February 25, 1992; and the YSAQMD

adopted Rule 2.28 on May 25, 1994. These submitted rules were found to

be complete on July 19, 1993; December 27, 1993; January 3, 1995;

August 27, 1992; and January 30, 1995 pursuant to EPA's completeness

criteria that are set forth in 40 CFR Part 51 Appendix V 4 and are

being proposed for approval into the SIP.

\4\ EPA adopted the 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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The submitted rules control VOC emissions from the manufacture,

sale, mixing, storage, use, and application of cutback and emulsified

asphalt materials. VOCs contribute to the production of ground-level

ozone and smog. The rules were adopted as part of each district's

efforts to achieve the National Ambient Air Quality Standard (NAAQS)

for ozone and in response to EPA's SIP-Call and the section

182(a)(2)(A) CAA requirement. The following is EPA's evaluation and

proposed action for these rules.

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 CTG

applicable to all of these rules is entitled, ``Control of Volatile

Organic Compounds from Use of Cutback Asphalt,'' EPA-450/2-77-037.

Further interpretations of EPA policy are found in the Blue Book,

referred to in footnote 2. In general, these guidance documents have

been set forth to ensure that VOC rules are fully enforceable and

strengthen or maintain the SIP.

BCAPCD Rule 241, Cutback and Emulsified Asphalt; and MDAQMD Rule

1103, Cutback and Emulsified Asphalt are new rules that were adopted to

limit VOC emissions from the use of cutback and emulsified asphalts.

MBUAPCD Rule 425, Use of Cutback Asphalt includes the following

significant changes from the current SIP:

Prohibition of manufacture and sale

Maximum allowable distillate content for slow cure cutback

asphalt of 0.5 percent

Maximum allowable petroleum solvent content for emulsified

asphalt of 3 percent

ASTM Test Method D244-88 for emulsified asphalt

Recordkeeping requirements

SBCAPCD Rule 329, Cutback and Emulsified Asphalt Paving Materials

includes the following significant changes from the current SIP:

Modified definitions of ``Asphalt'' and ``Cutback

asphalt''

Sections for applicability, prohibitions, recordkeeping,

and test methods

Maximum allowable reactive organic compound content for

cutback asphalts of 0.5 percent

No penetrating prime coat, cold-weather application, or

asphalt plant distance exemptions

ASTM Test Method D244 for emulsified asphalt

YSAQMD Rule 2.28, Cutback and Emulsified Asphalts includes the

following significant changes from the current SIP:

No penetrating prime coat exemption

Maximum allowable solvent content for emulsified asphalts

of 3 percent

Prohibitions of manufacture and sale and of specification

Detailed recordkeeping and test methods provisions

(A detailed summary of rule highlights and changes is provided in the

TSD's dated June 9, 1995.)

EPA has evaluated the submitted rules and has determined that they

are consistent with the CAA, EPA regulations, and EPA policy.

Therefore, BCAPCD Rule 241, Cutback and Emulsified Asphalt; MDAQMD Rule

1103, Cutback and Emulsified Asphalt; MBUAPCD Rule 425, Use of Cutback

Asphalt; SBCAPCD Rule 329, Cutback and Emulsified Asphalt Paving

Materials; and YSAQMD Rule 2.28, Cutback and Emulsified Asphalts are

being proposed for approval under section 110(k)(3) of the CAA as

meeting

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the requirements of section 110(a) and Part D.

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. Section 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. Secs. 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.

SIP 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, 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).

Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Part D of the Clean Air

Act. These rules may bind State, local, and tribal governments to

perform certain actions and also require the private sector to perform

certain duties. The rules being proposed for approval by this action

will impose no new requirements because affected sources are already

subject to these regulations under State law. Therefore, no additional

costs to State, local, or tribal governments or to the private sector

result from this action. EPA has also determined that this proposed

action does not include a mandate that may result in estimated costs of

$100 million or more to State, local, or tribal governments in the

aggregate or to the private sector.

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: July 17, 1995.

Felicia Marcus,

Regional Administrator.

[FR Doc. 95-18490 Filed 7-26-95; 8:45 am]

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