[Federal Register Volume 61, Number 31 (Wednesday, February 14, 1996)]
[Rules and Regulations]
[Pages 5701-5704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3231]



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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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