[Federal Register Volume 66, Number 99 (Tuesday, May 22, 2001)]
[Rules and Regulations]
[Pages 28056-28058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12716]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 169-0238; FRL-6980-4]


Revisions to the California State Implementation Plan, Ventura 
County Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the Ventura County Air Pollution Control District 
(VCAPCD) portion of the California State Implementation Plan (SIP). 
This action was proposed in the Federal Register on January 10, 2001 
and concerns volatile organic compound (VOC) emissions from soil 
decontamination operations. Under authority of the Clean Air Act as 
amended in 1990 (CAA or the Act), this action simultaneously approve a 
local rule that regulates these emission sources and directs California 
to correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on June 21, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted SIP revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.

Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Ventura County APCD, 669 County Square Dr., 2nd Fl., Ventura, CA 93003-
5417


FOR FURTHER INFORMATION CONTACT: Ed Addison, Rulemaking Office (AIR-4), 
U.S. Environmental Protection Agency, Region IX, (415) 744-1160.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On January 10, 2001, 66 FR 1927, EPA proposed a limited approval 
and limited disapproval of the following rule that was submitted for 
incorporation into the California SIP.

----------------------------------------------------------------------------------------------------------------
           Local agency                 Rule No.             Rule title             Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
VCAPCD............................           74.29   Soil Decontamination             10/10/95         03/26/96
                                                      Operations.
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that this rule 
improves the SIP and is largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
These provisions include the following:

(Section C.4) This section provides for case-by-case exemptions by 
the Director from the 0.08 lb/hr allowable emission rate for vapor 
extraction or bioremediation, if the operator can demonstrate 
compliance with VCAPCD Rule 51, Nuisance. This exemption is 
deficient because it does not specify replicable criteria for an 
exemption nor require equivalent emissions reduction for an exempted 
source.

    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    EPA provided for a 30-day public comment period on January 10, 2001 
in 66 FR 1927. EPA received the following verbal comments on the 
proposed rulemaking during the comment period from Bernard Bigham of 
the Chesapeake Environmental Group.
    Comment 1: VCAPCD 74.29 does little to reduce VOC emissions. Under 
the exemption in paragraph (C)(3)(f), it is estimated that 200,000 
tons/year of contaminated soil is excavated and trucked to landfills, 
and VOCs volatilize during transport and when soil is used as landfill 
daily cover. There is currently no rule other than VCAPCD 74.17 that 
controls VOC loss in contaminated soil transport to landfills. VCAPCD 
should remove paragraph (C)(3)(f), or Rule 74.17 should be revised to 
establish soil handling procedures and specify test methods that 
adequately evaluate and control VOC loading of landfills. The commenter 
points, for example, to Bay Area Air Quality Management District Rule 
8-40.
    Response: We discussed this comment with VCAPCD staff, who 
explained that Alternate Daily Cover (ADC) soil is only exempt under 
(C)(3)(f) if it meets the test in Definition (G)(2), which states 
limits by weight ppm VOC as referenced in (F)(2) test methods. We agree 
that this does establish some control on emissions from ADC, but 
recommend that the rule be clarified by stating these requirements in 
paragraph (B) or (C)(3)(f), and by clearly referencing the appropriate 
test methods in this requirement.
    We also recommend that the rule be revised to reference the other 
District protocols for safe handling and transport of contaminated soil 
to safe disposal.

[[Page 28057]]

    Comment 2: Paragraph (F)(2) appropriately references Methods 8015B 
and 5035, but 74.29(F)(5) undermines (F)(2) by referencing (B)(1)(a), 
which specifies Method 21. Method 25D should be referenced in (B)(1)(a) 
instead in light of crust formation on piled soil.
    Response: The District believes Definition (G)(2), Alternate Daily 
Cover, calls for the measurement of weight ppm VOC content of crusted 
soils, which requires the use of Method 25D for determining VOCs 
beneath the surface of excavated soil.
    EPA concurs that an appropriate method is being required, but 
recommends for clarity that testing for weight ppm VOC, by methods in 
paragraph (F)(2), be a requirement for the ``Alternate Daily Cover'' 
exemption allowed in paragraph (C)(3)(f).

III. EPA Action

    EPA has made several additional rule recommendations based on the 
submitted comments. No comments were submitted, however, that change 
our overall assessment of the rule or modify our action on the rule as 
described in our proposed action. Therefore, as authorized in sections 
110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval 
of the submitted rule. This action incorporates the submitted rule into 
the California SIP, including those provisions identified as deficient. 
As authorized under section 110(k)(3), EPA is simultaneously finalizing 
a limited disapproval of the rule. As a result, sanctions will be 
imposed unless EPA approves subsequent SIP revisions that correct the 
rule deficiencies within 18 months of the effective date of this 
action. These sanctions will be imposed under section 179 of the Act 
according to 40 CFR 52.31. In addition, EPA must promulgate a federal 
implementation plan (FIP) under section 110(c) unless we approve 
subsequent SIP revisions that correct the rule deficiencies within 24 
months. Note that the submitted rule has been adopted by the VCAPCD, 
and EPA's final limited disapproval does not prevent the local agency 
from enforcing them.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 July 23, 2001. 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, Intergovernmental relations, Reporting and 
recordkeeping requirements, Volatile organic compound.

    Dated: April 27, 2001.
Mike Schulz,
Acting Regional Administrator, Region IX.
    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:

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

Subpart F--California

    2. Section 52.220 is amended by adding paragraphs (c)(230)(i)(A)(3) 
to read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (230) * * *

[[Page 28058]]

    (i) * * *
    (A) * * *
    (3) Rule 74.29, adopted on October 10, 1995.
* * * * *
[FR Doc. 01-12716 Filed 5-21-01; 8:45 am]
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