[Federal Register Volume 67, Number 151 (Tuesday, August 6, 2002)]
[Proposed Rules]
[Pages 50847-50850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19794]



[[Page 50847]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA242-0334; FRL-7255-9]


Revisions to the California State Implementation Plan, Imperial 
County Air Pollution Control 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 Imperial County Air Pollution Control District 
(ICAPCD) portion of the California State Implementation Plan (SIP). 
These revisions concern volatile organic compound (VOC) emissions from 
aerospace manufacturing and rework coating operations. We are proposing 
action on ICAPCD Rule 425; a rule regulating 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.

DATE: Any comments must arrive by September 5, 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 document (TSD) 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;
Imperial County Air Pollution Control District, 150 South 9th Street, 
El Centro, CA 92243

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
    A. 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 local air agency and submitted by the 
California Air Resources Board (CARB).

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
           Local agency                Rule           Rule title              Adopted         Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD............................  425.................  Aerospace Coating     09/14/99............    05/26/00
                                                           Operations.
----------------------------------------------------------------------------------------------------------------

    On October 6, 2000, EPA found that the Rule 425 submittal met the 
completeness criteria in 40 CFR Part 51 Appendix V. These criteria must 
be met before formal EPA review begins.

B. Are There Other Versions of This Rule?

    There are no previous versions of Rule 425 in the SIP.

C. What is the Purpose of the Submitted Rule?

    Imperial County Air Pollution Control District Rule 425, Aerospace 
Coating Operations, is a rule designed to reduce volatile organic 
compound (VOC) emissions at industrial sites engaged in coating 
airplanes, space craft and their component parts. VOCs are emitted 
during the preparation and coating of the parts, as well as the drying 
phase of the coating process. Rule 425 establishes general emission 
limits in units of grams of Reactive Organic Compound (ROC) per litre 
(gr/l) of coating, less water and exempt compounds as applied. It also 
allows for the use of add-on emission controls whose combined capture 
and control efficiency must be 85.5 percent or better and specifies 
certain operating equipment. The rule also contains provisions for 
appropriate methods of analysis, exemptions, and record keeping. Rule 
425 includes the following provisions:
    1. applicability of and exemptions from the rule;
    2. emission reduction requirements and prohibitions of the rule;
    3. record keeping to demonstrate compliance with the rule; and,
    4. test methods for determining compliance with the rule.
    The TSD has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA Evaluating the Rule?

    Imperial County is classified as a transitional area for ozone (see 
section 185(A) of the Act). In general, SIP rules in transitional areas 
must be enforceable (see section 110(a) of the Act), must not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress (see section 110(l)), and must not relax existing 
requirements (see section 193).
    Guidance and policy documents that we used to define enforceability 
and other 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 Notice,'' (Blue Book), notice of availability published in the 
May 25, 1988 Federal Register.
    3. ``General Preamble for the Implementation of Title I of the 
Clean Air Act Amendments of 1990,'' 57 FR 13498, April 16, 1992.
    4. ``Control of Volatile Organic Emissions from Coating Operations 
at Aerospace Manufacturing and Rework Operations,'' USEPA, 1997, EPA-
453/R-97-004.
    B. Does the rule meet the evaluation criteria?
    Rule 425 improves the SIP by establishing VOC emissions limitations 
for certain sources in Imperial County that are not otherwise covered 
by a SIP rule. Such limitations reduce emissions of a precursor of a 
pollutant (ozone) for which the county was designated ``transitional'' 
nonattainment under the Act and for which the county continues to 
experience NAAQS exceedances. Transitional areas (see section 185A of 
the Act) must ensure, at a minimum, that any deficiencies regarding

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enforceability of an existing rule implementing Reasonably Available 
Control Technology (RACT) (i.e., pre-CAAA enactment RACT rule) are 
corrected. Transitional areas were exempt from all subpart 2 
requirements (of part D, title I of the Act) until December 31, 1991, 
and this exemption continues until we redesignate the area as 
attainment or designate the area as nonattainment under section 
107(d)(4) of the Act. See 57 FR 13498, 13523-13527 (April 16, 1992).
    In 1992, EPA determined that Imperial County had not violated the 
ozone NAAQS from January 1, 1987 through December 31, 1991. (See letter 
from Daniel McGovern, Regional Administrator, U.S. EPA--Region 9, to 
James Boyd, Executive Director, CARB, dated August 3, 1992.) Our 1992 
determination does not constitute a redesignation to attainment, and 
Imperial County has never been redesignated as an ozone attainment area 
under section 107(d)(3), nor has it been designated as nonattainment 
under section 107(d)(4) in light of post-1991 ozone NAAQS violations. 
Therefore, only the general requirement to correct deficiencies in 
enforceability of pre-1990 RACT rules applies for ozone planning 
purposes within Imperial County. Also, ICAPCD rule 425 would not 
supercede any existing SIP rule; thus, the requirement to correct 
deficiencies in enforceability in pre-1990 RACT rules does not apply.
    However, ICAPCD Rule 425 does contain enforceability deficiencies 
that preclude our full approval of the rule. However, if finalized, our 
proposed limited disapproval action would not trigger a sanctions 
timeclock under Section 179 because the rule does not represent a 
required submittal under the Act.
    Section 110(l) of the Act prohibits EPA from approving any revision 
of a SIP if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of the Act. In nonattainment areas, 
our evaluation extends beyond the issue of whether the submitted SIP 
revision is as stringent as the existing SIP provision that it would 
supercede and considers the submitted SIP revision in light of current 
ambient air quality and nonattainment planing requirements within the 
applicable nonattainment area. See Hall v. EPA, 263 F.3d 926 (9th 
Cir.), amended 273 F.3d 1146 (2001).
    Based on ozone monitoring data in EPA's AIRS database, exceedances 
of the one-hour ozone NAAQS have been recorded each year since 1991 in 
Imperial County. However, the issue of classifying Imperial County 
under subpart B (of part D, title I of the Act) is complicated by its 
location next to a heavily populated area within Mexico. The population 
of the entire county is approximately 140,000; far less than the single 
Mexican city of Mexicali (approximately 660,000), which lies 
immediately across the border from the Imperial County city of 
Calexico. Given this situation, we have not determined, under section 
185A of the Act, whether or not Imperial County attained the ozone 
NAAQS by December 31, 1991. Consequently, the planning requirements for 
Imperial County have not been determined. Also, while the State has not 
provided a demonstration under section 179B of the Act that Imperial 
County would have attained the standard by December 31, 1991 but for 
emissions emanating from outside the United States, we are aware of a 
CARB study showing that under certain circumstances, Mexicali's 
emissions do overwhelmingly impact air quality in Calexico. See 
California Air Resources Board, Ozone Transport: 2001 Review, April 
2001.
    Given the difficulty of establishing the root cause of historic and 
continuing ozone NAAQS exceedances in Imperial County and the ensuing 
uncertainty with respect to future ozone planning requirements, we have 
concluded that approval of ICAPCD Rule 425 will not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the Act; thus, it will 
comply with section 110(l). With the proposed approval, we recognize 
that the VOC emissions limitations and the enforceability provisions in 
this rule could conceivably be revisited if we were to classify the 
area under subpart 2 or require preparation of a maintenance plan.
    Section 193 of the Act prohibits modifications to pre-1990 SIP 
control requirements in any nonattainment area for any nonattainment 
pollutant unless such modification insures equivalent or greater 
emission reductions of such air pollutant. ICAPCD Rule 425 would not 
replace pre-1990 SIP control requirements because EPA has not approved 
a previous version of this rule into the SIP. Consequently, Section 193 
does not apply to our proposed action.

C. What Are the Rule's Deficiencies?

    The provisions listed below conflict with section 110 and part D of 
the Act and prevent full approval of the SIP revision. There are two 
cases of unlimited ``director's discretion'' that are deficiencies 
under EPA's review criteria.
    1. Paragraph A.3.c contains ``director's discretion'' in providing 
a specialty coatings exemption from the requirements of the rule.
    2. Paragraph C.4 contains ``director's discretion'' in providing 
for an ``alternative recordkeeping plan'' as a means to meet the rule's 
recordkeeping provisions.
    These ``director's discretion'' provisions allow for a variance 
from SIP requirements, which is not allowed under section 110(i) of the 
Act and the requirement that SIP provisions may only be modified by SIP 
revisions approved by EPA.

D. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that do not affect 
EPA's current action but are recommended for the next time the local 
agency modifies 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 the submitted rule to improve the SIP. 
If finalized, this action would incorporate the 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). No Section 179 
sanctions are associated with this disapproval action. Given Imperial 
County's classification as a transitional area, this submittal is not 
required under the CAA. Sanction clocks are not started for a 
disapproval of a submittal not mandated by the CAA. Note that the 
submitted rule has been adopted by the ICAPCD, and EPA's final limited 
disapproval would not prevent the local agency from enforcing it.
    We will accept comments from the public on the proposed limited 
approval and limited disapproval for the next 30 days.

III. Background Information

A. 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 each 
State to adopt and submit to EPA a plan which provides for 
implementation, maintenance and enforcement of the NAAQS. With respect 
to the ozone NAAQS, each State is required to submit regulations that 
control

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emissions of ozone precursors, including VOC, along with other 
requirements. Table 2 lists some of the national milestones leading to 
the submittal of this local agency VOC rule.

                 Table 2--Ozone Nonattainment Milestones
------------------------------------------------------------------------
                  Date                                Event
------------------------------------------------------------------------
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.
April 16, 1992.........................  EPA publishes ``General
                                          Preamble for the
                                          Implementation of Title I of
                                          the Clean Air Act Amendments
                                          of 1990'' (57 FR 13498), which
                                          provides EPA's interpretation
                                          of the requirements under the
                                          Act for transitional (ozone)
                                          nonattainment areas.
------------------------------------------------------------------------

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

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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 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, Hydrocarbons, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compound.

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

    Dated: July 16, 2002.
Keith Takata,
Associate Regional Administrator, Region IX.
[FR Doc. 02-19794 Filed 8-5-02; 8:45 am]
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