Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, San Joaquin Valley Unified Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 207-0086; FRL-6138-7]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, San Joaquin Valley Unified Air

Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

a revision to the San Joaquin Valley Unified Air Pollution Control

District's portion of the California State Implementation Plan (SIP)

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

from a variety of sources.

The intended effect of proposing limited approval and limited

disapproval of this rule 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 proposed rule will incorporate

this rule into the federally approved SIP. EPA has evaluated the rule

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 this revision,

while maintaining the SIP, does not fully meet the CAA provisions

regarding plan submissions and requirements for nonattainment areas.

DATES: Comments must be received on or before September 8, 1998.

ADDRESSES: Comments may be mailed to: Andrew Steckel, Rulemaking Office

[AIR-4], Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105-3901.

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

California Air Resources Board, Stationary Source Division, Rule

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

San Joaquin Valley Unified Air Pollution Control District, 1999

Tuolumne Street, Suite #200, Fresno, CA 93721.

FOR FURTHER INFORMATION CONTACT: Yvonne Fong, Rulemaking Office, [AIR-

4], Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415) 744-

1199.

SUPPLEMENTARY INFORMATION:

I. Applicability

San Joaquin Valley Unified Air Pollution Control District

(SJVUAPCD) Rule 4661, Organic Solvents is being proposed for approval

into the California SIP. This rule was submitted by the California Air

Resources Board (CARB) to EPA on March 10, 1998. Eighteen rules from

the San Joaquin Valley Air Basin's eight counties will be rescinded

from their respective SIPs upon final action by EPA on the version of

SJVUAPCD Rule 4661 submitted March 10, 1998. A detailed list of the

rules to be rescinded from the county SIPs can be found in the

Technical Support Document (TSD) for Rule 4661 (July 1, 1998), which is

available from the U.S. EPA, Region IX office.

II. Background

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

areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-

amended Act), that included the San Joaquin Valley Air Basin which

encompassed the air pollution control districts of the following eight

counties: Fresno, Kern,1 Kings, Madera, Merced, San Joaquin,

Stanislaus, and Tulare. 43 FR 8964; 40 CFR 81.305. Because some of

these areas 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,

1987.2 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 district'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. Pub. L. 101-549, 104 Stat.

2399, codified at 42 U.S.C. 7401-7671q.

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\1\ At the time, Kern County included portions of two air

basins: the San Joaquin Valley Air Basin and the Southeast Desert

Air Basin. The San Joaquin Valley Air Basin portion of Kern County

was designated as nonattainment, and the Southeast Desert Air Basin

portion of Kern County was designated as unclassified. The Southeast

Desert portion of Kern County was subsequently redesignated as

nonattainment and classified as serious on November 6, 1991. See 56

FR 56694.

\2\ This extension was not requested for the following counties:

Kern, Kings, Madera, Merced, and Tulare. Thus, the attainment date

for these counties remained December 31, 1982.

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On March 20, 1991, the San Joaquin Valley Unified Air Pollution

Control District (SJVUAPCD) was formed. The SJVUAPCD has authority over

the San Joaquin Valley Air Basin, which includes all of the above eight

counties except for the Southeast Desert Air Basin portion of Kern

County. Thus Kern County Air Pollution Control District (Kern) still

exists, but only has authority over the Southeast Desert Air Basin

portion of Kern County. The San Joaquin Valley Area is classified as

serious.

The State of California submitted many rules to EPA for

incorporation into its SIP on March 10, 1998, including the rule being

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

action for SJVUAPCD Rule 4661, Organic Solvents. The SJVUAPCD adopted

Rule 4661 on December 17, 1992. This submitted rule was found to be

complete on May 21, 1998 pursuant to EPA's completeness criteria that

are set forth in 40 CFR Part 51, Appendix V 3 and is being

proposed for limited approval and limited disapproval.

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\3\ EPA adopted 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 4661 controls the emission of volatile organic compounds

(VOCs) from organic solvent use. VOCs contribute to the production of

ground level ozone and smog. The eighteen county rules listed in the

TSD for this rule were originally adopted as part of the district's

effort to achieve the National Ambient Air Quality Standard (NAAQS) for

ozone. SJVUAPCD Rule 4661 is a new rule which was adopted to meet EPA's

SIP-Call and the section 110(a)(2)(A) CAA requirement and which will

supercede those eighteen county rules. The following is EPA's

evaluation and proposed action for SJVUAPCD Rule 4661.

III. 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

[[Page 42309]]

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 ``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). In

general, this guidance document has been set forth to ensure that VOC

rules are fully enforceable and strengthen or maintain the SIP.

There is currently no version of SJVUAPCD Rule 4661, Organic

Solvents in the SJVUAPCD portion of the California SIP. All the major

requirements of SJVUAPCD Rule 4661, however, are derived from the

eighteen county SIP rules listed in the TSD for this rule. The SJVUAPCD

Rule 4661 submitted on March 10, 1998 includes the following

provisions:

Prohibits the discharge of more than 15 pounds per day or

3 pounds per hour of organic materials that come in contact with heat

unless controlled to 85% (Section 5.1),

Prohibits the discharge of more than 40 pounds per day or

8 pounds per hour of photochemically reactive solvent unless controlled

to 85% (Section 5.2),

Prohibits the discharge of more than 3,000 pounds per day

or 450 pounds per hour of non-photochemically reactive solvent unless

controlled to 85% (Section 5.3),

Requires emissions of organic materials that occur when

they are used for cleanup and that occur when drying products after

their removal from any operation be included with other emissions when

determining compliance with the rule (Sections 5.4 and 5.5),

Specifies acceptable forms of controls (Section 5.6),

Requires monitoring of all operating conditions necessary

to determine the degree and effectiveness of controls (Section 5.7),

Requires users of organic solvents to provide information

on the composition, properties, and consumption of each solvent used

(Section 5.8), and

Limits the daily disposal of photochemically reactive

solvent by any means which will permit its evaporation into the

atmosphere to 1.5 gallons (Section 5.9).

EPA has evaluated SJVUAPCD submitted Rule 4661 for consistency with

the CAA, EPA regulations, and EPA policy and has found that while Rule

4661 provides one set of requirements for the entire San Joaquin Valley

Air Basin, it fails to maintain the clarity and enforceability of the

original eighteen county rules that it seeks to replace.

Although approval of SJVUAPCD Rule 4661 and recision of the

eighteen county rules will maintain the SIP and alleviate problems

associated with the listing of all applicable requirements in Title V

source permits, Rule 4661 still contains a deficiency that is required

to be corrected pursuant to the section 110(a)(2)(A) and Part D

requirements of the CAA.

Section 4.2 states that Rule 4661 shall not apply to any source

which is in full compliance with the provisions of other applicable

rules in Regulation IV (Prohibitions). This exemption does not specify

that it applies only in situations where sources are in compliance with

other SIP-approved rules. One way the District can correct this

deficiency is by revising Section 4.2 to list the specific Regulation

IV rules that have been approved into the SIP. A detailed discussion of

this deficiency can be found in the TSD for this rule. Because of this

deficiency, the rule is not fully approvable pursuant to section

110(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 deficiency, 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 maintain the SIP, EPA is proposing a limited

approval of SJVUAPCD Rule 4661 under sections 110(k)(3) and 301(a) of

the CAA.

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

this rule because it contains a deficiency under section 110(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 EPA's final limited disapproval.

Moreover, the final disapproval triggers the Federal implementation

plan (FIP) requirement under section 110(c). It should be noted that

the rule covered by this proposal has been adopted by the SJVUAPCD and

is currently in effect in the district. EPA's final limited disapproval

action will not prevent SJVUAPCD or EPA from enforcing this rule.

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.

IV. Administrative Requirements

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866 review.

The proposed rule is not subject to E.O. 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

E.O. 12866.

B. Regulatory Flexibility Act

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 sections 110 and 30l, 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, the

Administrator certifies that it does not have a significant impact on

any small

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entities affected. Moreover, due to the nature of the Federal-State

relationship under the CAA, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The Clean Air Act forbids EPA to base its action concerning

SIPS on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under Section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Authority: 42 U.S.C. 7401 et seq.

Dated: July 30, 1998.

Felicia Marcus,

Regional Administrator, Region IX.

[FR Doc. 98-21208 Filed 8-6-98; 8:45 am]

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