[Federal Register Volume 67, Number 37 (Monday, February 25, 2002)]
[Proposed Rules]
[Pages 8493-8496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4406]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA247-0308; FRL-7149-3]


Revisions to the California State Implementation Plan; South 
Coast Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the South Coast Air Quality Management District (SCAQMD) 
portion of the California State Implementation Plan (SIP). These 
revisions concern volatile organic compound (VOC) emissions from food 
product manufacturing and processing operations. We are proposing 
action on a local rule that regulates these emission sources under the 
Clean Air Act as amended in 1990 (CAA or the Act). We are taking 
comments on this proposal and plan to follow with a final action.

DATES: Comments must be received by March 27, 2002.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.
    You can inspect copies of the submitted SIP revisions and EPA's 
technical support documents (TSDs) at our Region IX office during 
normal business hours. You may also see copies of the submitted SIP 
revisions at the following locations:
    California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814; and,
    South Coast Air Quality Management District, 21865 East Copley 
Drive, Diamond Bar, CA 91765.

FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, Rulemaking Office 
(AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-
4111.

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule's deficiencies?
    D. EPA recommendations to further improve the rule.
    E. Proposed action and public comment.
III. Background Information
    Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the SCAQMD and submitted by the California Air 
Resources Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency                   Rule #             Rule title            Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD..............................            1131   Food Product                   09/15/00         05/08/01
                                                        Manufacturing and
                                                        Processing Operations.
----------------------------------------------------------------------------------------------------------------


[[Page 8494]]

    On July 20, 2001, Rule 1131 was found to meet the completeness 
criteria in 40 CFR part 51, appendix V, which must be met before formal 
EPA review.

B. Are There Other Versions of This Rule?

    There is no previous version of Rule 1131 in the SIP. Since Rule 
1131 is a new rule, SCAQMD has not submitted previous versions of Rule 
1131 to EPA.

C. What Is the Purpose of the Submitted Rule?

    Rule 1131 is designed to reduce emissions of VOCs from solvents 
used in food product manufacturing and processing operations. Emissions 
are reduced by a specific VOC content limit, use of emission control 
devices, or a combination of these methods and other innovations. Rule 
1131 includes the following general provisions:
    --Applicability of the rule;
    --Definitions of terms under the rule;
    --Requirements of the rule;
    --Recordkeeping requirements of the rule;
    --Test methods for determining compliance;
    --Rule 442 applicability; and,
    --Exemptions from the rule.
    The TSD has more detailed information about this rule.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
major sources in nonattainment areas (see section 182(a)(2)(A)), and 
must not relax existing requirements (see sections 110(l) and 193). The 
SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so 
Rule 1131 must fulfill RACT.
    Guidance and policy documents that we used to define specific 
enforceability and RACT requirements include the following:
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations; Clarification to Appendix D of November 24,1987 Federal 
Register document,'' (Blue Book), notice of availability published in 
the May 25, 1988 Federal Register.

B. Does the Rule Meet the Evaluation Criteria?

    Rule 1131 improves the SIP by establishing more stringent emission 
limits and by clarifying monitoring, recording, and recordkeeping 
provisions. This rule is largely consistent with the relevant policy 
and guidance regarding enforceability, RACT and SIP relaxations. Rule 
provisions which do not meet the evaluation criteria are summarized 
below and discussed further in the TSD.

C. What Are the Rule's Deficiencies?

    A portion of Rule 1131 conflicts with section 110 and part D of the 
Act and prevent full approval of these SIP revisions. The deficiency 
exists within subsection (c)(1)(C). This subsection allows ``director's 
discretion'' in the review and approval of compliance plans. The rule 
does not specify the emission estimation protocols needed to avoid a 
broad and ungoverned application of ``director's discretion'' when 
reviewing the compliance plans. This deficiency is inconsistent with 
the CAA section 110(a) requirement that the SIP be federally 
enforceable. A facility may take any number of actions to reduce VOC 
emissions to a level equivalent with the requirements of the rule.

D. EPA Recommendations To Further Improve the Rule

    In this case, the EPA does not suggest additional rule revisions 
that might improve the rule.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a limited approval of SCAQMD Rule 1131 to improve the SIP. If 
finalized, this action would incorporate this submitted rule into the 
SIP, including those provisions identified as deficient. This approval 
is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under section 110(k)(3). If this disapproval is 
finalized, sanctions will be imposed under section 179 of the Act 
unless EPA approves subsequent SIP revisions that correct the rule's 
deficiencies within 18 months. These sanctions would be imposed 
according to 40 CFR 52.31. A final disapproval would also trigger the 
federal implementation plan (FIP) requirement under section 110(c). 
Note that the submitted rule has been adopted by the SCAQMD, and EPA's 
final limited disapproval would not prevent the local agency from 
enforcing it.
    We will accept comments from the public on this proposed limited 
approval and limited disapproval for the next 30 days.

III. Background Information

Why Was This Rule Submitted?

    VOCs help produce ground-level ozone and smog, which harm human 
health and the environment. Section 110(a) of the CAA requires states 
to submit regulations that control VOC emissions. Table 2 lists some of 
the national milestones leading to the submittal of these local agency 
VOC rules.

                Table 2.--Ozone Nonattainment Milestones
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             Date                                Event
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March 3, 1978................  EPA promulgated a list of ozone
                                nonattainment areas under the Clean Air
                                Act as amended in 1977. 43 FR 8964; 40
                                CFR 81.305.
May 26, 1988.................  EPA notified Governors that parts of
                                their SIPs were inadequate to attain and
                                maintain the ozone standard and
                                requested that they correct the
                                deficiencies (EPA's SIP-Call). See
                                section 110(a)(2)(H) of the pre-amended
                                Act.
November 15, 1990............  Clean Air Act Amendments of 1990 were
                                enacted. Pub. L. 101-549, 104 Stat.
                                2399, codified at 42 U.S.C. 7401-7671q.
May 15, 1991.................  Section 182(a)(2)(A) requires that ozone
                                nonattainment areas correct deficient
                                RACT rules by this date.
------------------------------------------------------------------------


[[Page 8495]]

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, Regulatory Planning and Review.

B. Executive Order 13211

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

C. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This proposed 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, 
because it merely acts on 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
proposed rule.

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule. In the spirit 
of Executive Order 13175, and consistent with EPA policy to promote 
communications between EPA and tribal governments, EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This proposed rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply act on requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    EPA's proposed disapproval of the state request under section 110 
and subchapter I, part D of the Clean Air Act does not affect any 
existing requirements applicable to small entities. Any pre-existing 
federal requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions 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).

G. 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

[[Page 8496]]

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 proposed action 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 proposed Federal action acts on pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compound.

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

    Dated: February 8, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-4406 Filed 2-22-02; 8:45 am]
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