[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Proposed Rules]
[Pages 38535-38537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18490]



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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 

[[Page 38537]]
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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