Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Marine Vessel Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RI-17-1-6968a; A-1-FRL-5405-1]

Approval and Promulgation of Air Quality Implementation Plans;

Rhode Island; Marine Vessel Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of Rhode Island. This revision contains a

regulation to reduce volatile organic compound (VOC) emissions from

marine vessel loading operations. The intended effect of this action is

to approve this regulation into the Rhode Island SIP. This action is

being taken in accordance with the Clean Air Act.

DATES: This action is effective June 3, 1996, unless notice is received

by May 6, 1996 that adverse or critical comments will be submitted. If

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

Federal Register.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection, U.S. Environmental Protection Agency,

Region I, JFK Federal Building, Boston, MA 02203. Copies of the

documents relevant to this action are available for public inspection

during normal business hours, by appointment at the Office of Ecosystem

Protection, U.S. Environmental Protection Agency, Region I, One

Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and

Information Center, U.S. Environmental Protection Agency, 401 M Street,

S.W., (LE-131), Washington, D.C. 20460; and Division of Air and

Hazardous Materials, Department of Environmental Management, 291

Promenade Street, Providence, RI 02908-5767.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On March 17, 1994, EPA received a formal

State Implementation Plan (SIP) submittal from the Rhode Island

Department of Environmental Management (DEM) containing the following

regulations:

--Regulation No. 30 ``Control of Volatile Organic Compounds (VOCs) from

Automobile Refinishing Operations''

--Regulation No. 31 ``Control of VOCs from Commercial and Consumer

Solvents''

--Regulation No. 32 ``Control of VOCs from Marine Vessel Loading

Operations''

--Regulation No. 33 ``Control of VOCs from Architectural Coatings and

Industrial Maintenance Coatings''

These regulations had been recently adopted as state law pursuant

to the reasonable further progress and VOC reasonably available control

technology (RACT) requirements of the Clean Air Act (CAA) [Sections

182(b)(1) and 182(b)(2)]. This direct final rulemaking notice addresses

only Rhode Island's marine vessel loading regulation. The other

regulations included in Rhode Island's SIP submittal will be addressed

in future rulemaking actions.

Background

Under the pre-amended Clean Air Act (i.e., the Clean Air Act before

the enactment of the amendments of November 15, 1990), ozone

nonattainment areas were required to adopt RACT rules for sources of

VOC emissions. EPA issued three sets of control technique guideline

(CTG) documents, establishing a ``presumptive norm'' for RACT for

various categories of VOC sources. The three sets of CTGs were: (1)

Group I--issued before January 1978 (15 CTGs); (2) Group II--issued in

1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 CTGs).

Those sources not covered by a CTG were called non-CTG sources. EPA

determined that the area's SIP-approved attainment date established

which RACT rules the area needed to adopt and implement. Under Section

172(a)(1), ozone nonattainment areas were generally required to attain

the ozone standard by December 31, 1982. Those areas that submitted an

attainment demonstration projecting attainment by that date were

required to adopt RACT for sources covered by the Group I and II CTGs.

Those areas that sought an extension of the attainment date under

Section 172(a)(2) to as late as December 31, 1987 were required to

adopt RACT for all CTG sources and for all major (i.e., 100 ton per

year or more of VOC emissions) non-CTG sources.

Under the pre-amended Clean Air Act, the entire State of Rhode

Island was designated as nonattainment for ozone and did not seek an

extension of the attainment date under Section 172(a)(2). Therefore,

the State was only required to adopt RACT for sources covered by the

Group I and II CTGs. In lieu of adopting some of the Group II CTG

regulations, however, Rhode Island adopted and submitted a regulation

[[Page 14976]]

covering all unregulated major (i.e., 100 ton per year or more of VOC

emissions) non-CTG sources. However, the State of Rhode Island did not

attain the ozone standard by the approved attainment date. On May 25,

1988, EPA notified the Governor of Rhode Island that 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). Rhode Island adopted corrections to the State rules on

December 10, 1989 which were approved into the State SIP on September

30, 1991. On November 15, 1990, amendments to the Clean Air Act were

enacted. Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C.

7401-7671q. In Section 182(a)(2)(A) of the amended Act, Congress

adopted the requirement that pre-enactment ozone nonattainment areas

that retained their designation of nonattainment and were classified as

marginal or above fix their deficient RACT rules for ozone by May 15,

1991. All of Rhode Island was classified as serious nonattainment for

ozone. 56 FR 56694 (Nov. 6, 1991). The SIP revisions approved on

September 30, 1991 made Rhode Island's RACT rules consistent with

existing CTGs and no revisions were required to meet the fix-up

requirements.

Section 182(b)(2) of the amended Act requires States to adopt RACT

rules for all areas designated nonattainment for ozone and classified

as moderate or above. There are three parts to the Section 182(b)(2)

RACT requirement: (1) RACT for sources covered by an existing CTG--

i.e., a CTG issued prior to the enactment of the 1990 amendments to the

Act; (2) RACT for sources covered by a post-enactment CTG; and (3) all

major sources not covered by a CTG, i.e., non-CTG sources. This RACT

requirement applies to nonattainment areas that were previously exempt

from certain RACT requirements to ``catch up'' to those nonattainment

areas that became subject to such requirements during an earlier

period. In addition, it requires newly designated ozone nonattainment

areas to adopt RACT rules consistent with those for previously

designated nonattainment areas.

In response to the RACT ``catch-up'' requirement, on October 30,

1992, Rhode Island adopted/revised regulations for surface coating

operations, cutback asphalt, and pharmaceutical products (Regulations

19, 25, and 26, respectively). These rules were approved into the State

SIP on October 18, 1994 (59 FR 52427). However, under Section 182 of

the Act, the major source definition for serious nonattainment areas

was lowered to include sources that have a potential to emit 50 tons or

greater of VOCs per year. In response to this requirement, Rhode Island

lowered the applicability cutoff of its graphic arts and non-CTG

regulations (Regulations 21 and 15, respectively) to include newly

classified major sources in these categories. (See 60 FR 35361 for

EPA's proposed rulemaking action on Regulations 21 and 15.)

Also in response to the Act's requirement to regulate major VOC

sources, Rhode Island adopted Regulation No. 32 ``Control of VOCs from

Marine Vessel Loading Operations'' and submitted this rule to EPA as a

SIP revision on March 15, 1994. Rhode Island's Regulation No. 32, the

subject of today's action, is briefly summarized below.

Regulation No. 32 ``Control of VOCs From Marine Vessel Loading

Operations''

This regulation applies to any loading event in which an organic

liquid is loaded into marine tank vessels and to loading events in

which any liquid is loaded into a marine vessel's cargo tanks if the

most recent cargo held in those tanks was an organic liquid. The

regulation prohibits loading events to occur unless one of the

following conditions is met:

(1) VOC emissions do not exceed 2 pounds per 1000 barrels of liquid

loaded into the marine tank vessel; or

(2) VOC emissions are reduced by at least 95 percent by weight from

uncontrolled conditions if a recovery device is used or by at least 98

percent by weight from uncontrolled conditions if a combustion device

is used.

This regulation also limits the loading of marine tank vessels to

those vessels that are vapor tight.

Regulation No. 32 will reduce VOC emissions. VOCs contribute to the

production of ground level ozone and smog. This regulation was adopted

as part of an effort to achieve the National Ambient Air Quality

Standard (NAAQS) for ozone. The following is EPA's evaluation of Rhode

Island's Air Pollution Control Regulation Number 32.

EPA's Evaluation of Rhode Island's Submittal

In determining the approvability of a VOC rule, EPA must evaluate

the rule for consistency with the requirements of the Act and EPA

regulations, as found in Section 110 and Part D of the Act and 40 CFR

Part 51 (Requirements for Preparation, Adoption, and Submittal of

Implementation Plans). EPA's interpretation of these requirements,

which forms the basis for today's action, appears in various EPA policy

guidance documents. The specific guidance relied on for this action is

referenced within the technical support document and this notice. For

the purpose of assisting State and local agencies in developing RACT

rules, EPA prepared a series of CTG documents. The CTGs are based on

the underlying requirements of the Act and specify presumptive norms

for RACT for specific source categories. EPA has not yet developed CTGs

to cover all sources of VOC emissions. Further interpretations of EPA

policy are found in, but not limited to, the following: (1) The

proposed Post-1987 ozone and carbon monoxide policy, 52 FR 45044

(November 24, 1987); (2) the document entitled, ``Issues Relating to

VOC Regulation Cutpoints, Deficiencies, and Deviations, Clarification

to Appendix D of November 24, 1987 Federal Register Notice,'' otherwise

known as the ``Blue Book'' (notice of availability was published in the

Federal Register on May 25, 1988); and (3) the ``Model Volatile Organic

Compound Rules for Reasonably Available Control Technology,'' (Model

VOC RACT Rules) issued as a staff working draft in June of 1992. In

general, these guidance documents have been set forth to ensure that

VOC rules are fully enforceable and strengthen or maintain the SIP.

In addition, Section 183(f) of the amended Act specifically

required EPA to promulgate RACT standards to reduce VOC emissions from

the loading and unloading of marine tank vessels. On September 19, 1995

(60 FR 48388), EPA promulgated both RACT and MACT (maximum achievable

control technology) standards for marine tank vessels.

EPA has evaluated Rhode Island's Regulation No. 32 and has found

that it is generally consistent with EPA's national rule for marine

tank vessels and other current EPA guidance. As such, EPA believes that

this regulation constitutes RACT for marine vessel loading operations.

Rhode Island's regulation and EPA's evaluation are detailed in a

memorandum, dated September 28, 1995, entitled ``Technical Support

Document--Rhode Island--Marine Vessel Rule.'' Copies of that document

are available, upon request, from the EPA Regional Office listed in the

ADDRESSES section of this document.

EPA is publishing this action 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, EPA is proposing to

[[Page 14977]]

approve the SIP revision should adverse or critical comments be filed.

This action will be effective June 3, 1996 unless adverse or critical

comments are received by May 6, 1996.

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

before the effective date by publishing a subsequent notice 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 on June 3, 1996.

Final Action

EPA is approving Rhode Island's Regulation No. 32 ``Control of

Volatile Organic Compounds from Marine Vessel Loading Operations'' into

the Rhode Island SIP.

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.

SIP approvals under Section 110 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).

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 Section 182(b) 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 approved by this action will

impose no new requirements because the affected sources are already

subject to these regulations under State law. Accordingly, 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 review under Executive Order

12866.

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.

Under Section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by June 3, 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Ozone, Reporting and recordkeeping

requirements.

Note: Incorporation by reference of the State Implementation

Plan for the State of Rhode Island was approved by the Director of

the Federal Register on July 1, 1982.

Dated: January 12, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of 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:

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

Subpart OO--Rhode Island

2. Section 52.2070 is amended by adding paragraph (c)(43) to read

as follows:

Sec. 52.2070 Identification of plan.

* * * * *

(c) * * *

(43) Revisions to the State Implementation Plan submitted by the

Rhode Island Department of Environmental Management on March 15, 1994.

(i) Incorporation by reference.

(A) Letter from the Rhode Island Department of Environmental

Management dated March 15, 1994 submitting a revision to the Rhode

Island State Implementation Plan.

(B) Rhode Island Department of Environmental Management, Division

of Air Resources, Air Pollution Control Regulation No. 32, ``Control of

Volatile Organic Compounds from Marine Vessel Loading Operations''

effective in the State of Rhode Island on March 31, 1994, with the

exception of Section 32.2.2 which Rhode Island did not submit as part

of the SIP revision.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

3. In Sec. 52.2081, Table 52.2081 is amended by adding a new state

citation ``No. 32'' to read as follows:

Sec. 52.2081 EPA--approved Rhode Island state regulations

* * * * *

[[Page 14978]]

Table 52.2081.--EPA-Approved Rules and Regulations

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Date Date

State citation Title/subject adopted approved FR citation 52.2070 Comments/unapproved sections

by State by EPA

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* * * * * * *

No. 32........... Marine Vessels............... 3/11/94 4/4/96 60 FR 14978......... (c)(43)........... All of No. 32 is approved with the

exception of Section 32.2.2 which

Rhode Island did not submit as part

of the SIP revision.

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[FR Doc. 96-8223 Filed 4-3-96; 8:45 am]

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