[Federal Register Volume 61, Number 66 (Thursday, April 4, 1996)]
[Rules and Regulations]
[Pages 14975-14978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8223]



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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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