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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 95-9-7273a; FRL-5411-1]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, San Diego County Air Pollution

Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action granting limited approval

and limited disapproval of revisions to the California State

Implementation Plan (SIP). The revisions concern a rule from the San

Diego County Air Pollution Control District (SDCAPCD). The revised rule

controls VOC emissions from kelp processing and bio-polymer

manufacturing operations. This final action will incorporate this rule

into the federally approved SIP. The intended effect of finalizing this

action is to regulate emissions of volatile organic compounds (VOCs) in

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

1990 (CAA or the Act). Thus, EPA is finalizing a simultaneous limited

approval and limited disapproval of the revised rule under CAA

provisions regarding EPA action on SIP submittals and general

rulemaking authority because the rule, while strengthening the SIP,

also does not fully meet the CAA provisions regarding plan submissions

and plan requirements for nonattainment areas. As a result of the

limited disapproval portion of this action, EPA will be required to

impose highway funding or emission offset sanctions under the CAA

unless the State submits and EPA approves corrections to the identified

deficiencies within 18 months of the effective date of this

disapproval. Moreover, EPA will be required to promulgate a Federal

Implementation Plan (FIP) unless the deficiencies are corrected within

24 months of the effective date of this disapproval.

EFFECTIVE DATE: This action is effective on April 15, 1996, unless

adverse or critical comments are received by March 15, 1996. If the

effective date is delayed, a timely notice will be published in the

Federal Register.

ADDRESSES: Copies of the rule and EPA's evaluation report for the rule

are available for public inspection at EPA's Region IX office during

normal business hours. Copies of the submitted rule are also available

for inspection at the following locations:

[[Page 5702]]

Environmental Protection Agency, Air Docket (6102), 401 ``M''

Street, SW., Washington, DC 20460

San Diego County Air Pollution Control District, 9150 Chesapeake

Drive, San Diego, CA 92123-1096

California Air Resources Board, Stationary Source Division, Rule

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

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,

Telephone: (415) 744-1188.

SUPPLEMENTARY INFORMATION:

Applicability

The rule being incorporated into the California SIP is SDCAPCD Rule

67.10, Kelp Processing and Bio-Polymer Manufacturing Operations. This

rule was submitted by the California Air Resources Board (CARB) to EPA

on July 13, 1994.

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 Act or pre-amended Act), that included the San Diego Area. 43 FR

8964, 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of

California, pursuant to section 110(a)(2)(H) of the 1977 Act, that the

SDCAPCD's portion of the California 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, the

Clean Air Act Amendments of 1990 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.

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.1 EPA's SIP-Call used that

guidance to indicate the necessary corrections for specific

nonattainment areas. San Diego Area is classified as Serious; 2

therefore, this area was subject to the RACT fix-up requirement and the

May 15, 1991 deadline.

\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

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

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

technique guidelines (CTGs).

\2\ The San Diego Area retained its designation of nonattainment

and was 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). The San Diego Area was reclassified from Severe-

15 to Serious on January 19, 1995, 60 FR 3771.

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The State of California submitted many revised RACT rules for

incorporation into its SIP on July 13, 1994, including the rule being

acted on in this notice. This notice addresses EPA's direct-final

action for SDCAPCD Rule 67.10, Kelp Processing and Bio-Polymer

Manufacturing Operations. SDCAPCD adopted Rule 67.10 on June 15, 1994.

This submitted rule was found to be complete on September 12, 1994

pursuant to EPA's completeness criteria that are set forth in 40 CFR

part 51, appendix V 3 and is being finalized for limited approval

and limited disapproval into the SIP.

\3\ 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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Rule 67.10 controls the emissions of VOCs from kelp processing and

bio-polymer manufacturing operations. VOCs contribute to the production

of ground level ozone and smog. This rule was originally adopted as

part of SDCAPCD's effort to achieve the National Ambient Air Quality

Standard (NAAQS) for ozone and has been revised in response to EPA's

SIP-Call and the section 182(a)(2)(A) CAA requirement. The following is

EPA's evaluation and final action for this rule.

EPA Evaluation and 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 1. 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). For source

categories that do not have an applicable CTG (such as kelp processing

and bio-polymer manufacturing operations), 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. Within the SDCAPCD there is only one

facility that performs kelp processing and bio-polymer manufacturing

operations. For this source category, the RACT determination required

an evaluation of the manufacturing processes and the emissions specific

to this facility. The evaluation also considered the technological and

economic feasibility of proposed controls at individual emission

points.

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

referred to in footnote 1. In general, the EPA policy guidance

documents have been set forth to ensure that VOC rules are fully

enforceable and strengthen or maintain the SIP.

SDCAPCD's submitted Rule 67.10, Kelp Processing and Bio-Polymer

Manufacturing Operations, includes the following revisions from the

current SIP:

Expansion of rule applicability to include pilot plant

facilities

More stringent recordkeeping requirements for claiming

exemptions

Addition of an exemption for any VOC with normal boiling

point of 185 deg.C or greater

Addition of an exemption for temporary equipment in pilot

plants

Addition of new definitions

Revision of the VOC definition to eliminate the vapor

pressure exemption

Revision of the fugitive liquid leak definition to three

drops per minute, or a visible mist, with greater than 10% by weight

VOC

Deletion of the exemption of presses from fugitive liquid

leak provisions

Revisions to the add-on control efficiency requirements

for manufacturing lines and pilot plants

[[Page 5703]]

Revision to the compliance determination period for add-on

control devices

Deletion of the provision allowing source to appeal

conditional approval/disapproval of an operation and maintenance

program

Deletion of the provision allowing the Air Pollution

Control Officer to recommend relaxations of the VOC control efficiency

requirements for driers and reactors

Addition of equipment and operational standards to

minimize fugitive emissions

Addition of capture and control requirements for presses

and spent pots

Specification of recordkeeping requirements and test

methods for compliance determinations

EPA has evaluated the submitted rule 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 a clearer, more

enforceable rule. Furthermore, the addition of more stringent standards

in submitted Rule 67.10 should lead to more emission reductions.

Although SDCAPCD Rule 67.10 will strengthen the SIP, the rule still

contains deficiencies which were required to be corrected pursuant to

the section 182(a)(2)(A) requirement of Part D of the CAA. The

remaining deficiencies include the following:

Fifty percent by weight VOC fugitive liquid leak standard

for incorporators

No provisions for frequency of monitoring or inspection

for fugitive liquid leaks

No capture efficiency protocol provision

Determinations of compliance based on shorter test periods

than allowed for determinations of non-compliance

Moreover, the submitted rule adds another significant deficiency: an

exemption of VOCs based on boiling point. A detailed discussion of rule

deficiencies can be found in the Technical Support Document for Rule

67.10 (1/96), which is available from the U.S. EPA's Region IX office.

Because of these deficiencies, the rule is not approvable pursuant to

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

and may lead to rule enforceability problems.

Because of the above deficiencies, EPA cannot grant full approval

of this rule under section 110(k)(3) and Part D. Also, because the

submitted rule is not composed of separable parts which meet all the

applicable requirements 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

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 finalizing a

limited approval of SDCAPCD's submitted rule 67.10 under sections

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

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

this rule because it contains deficiencies that have not been corrected

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

does 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 this final limited disapproval. Moreover, this final limited

disapproval triggers the Federal implementation plan (FIP) requirement

under section 110(c). It should be noted that the rule covered by this

direct final rulemaking has been adopted by the SDCAPCD and is

currently in effect in the District. EPA's final limited disapproval

action will not prevent the District or EPA from enforcing this rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future 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.

EPA is publishing this document without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing a limited approval and

limited disapproval of the SIP revision should adverse or critical

comments be filed. This action will be effective April 15, 1996, unless

by March 15, 1996, adverse or critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective April 15, 1996.

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 population of less than

50,000.

Limited approvals under sections 110 and 301(a) 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. Under the CAA, EPA may not base its

actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (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

[[Page 5704]]

existing requirements nor does it impose any new Federal requirements.

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by April 15, 1996. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements (see section 307(b)(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. This rule may bind State, local, and tribal governments to perform

certain actions and also require the private sector to perform certain

duties. The rule being incorporated into the SIP 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 final 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.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compounds.

Note: Incorporation by reference of the State Implementation

Plan for the State of California was approved by the Director of the

Federal Register on July 1, 1982.

Dated: January 16, 1996.

Felicia Marcus,

Regional Administrator.

Subpart F of part 52, chapter I, title 40 of the Code of Federal

Regulations is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Subpart F--California

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

2. Section 52.220 is amended by adding paragraph (c)(198)(i)(I) to

read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(198) * * *

(i) * * *

(I) San Diego County Air Pollution Control District.

(1) Rule 67.10, adopted on June 15, 1994.

* * * * *

[FR Doc. 96-3231 Filed 2-13-96; 8:45 am]

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