[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Proposed Rules]
[Pages 40233-40237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16926]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 242-0375; FRL-7522-3]


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 
a revision to the Imperial County Air Pollution Control District 
(ICAPCD) portion of the California State Implementation Plan (SIP). 
This revision concerns volatile organic compound (VOC) emissions from 
storage tanks used to store reactive organic compound (ROC) liquids. We 
are proposing action on a local rule that regulates this emission 
source 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: Any comments must arrive by August 6, 2003.

ADDRESSES: Mail or e-mail comments to Andy Steckel, Rulemaking Office 
Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105; [email protected].
    You can inspect copies of the submitted SIP revision 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 revision 
at the following locations:

    Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building,

[[Page 40234]]

1200 Pennsylvania Avenue, NW., Washington, DC 20460.
    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.

    A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm. Please be advised that this is not 
an EPA website and may not contain the same version of the rule that 
was submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Al Petersen, U.S. Environmental 
Protection Agency, Region IX, (415) 947-4118.

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 revisions?
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 deficiencies?
    D. Proposed action and public comment.
III. Background Information
    Why was this rule submitted?
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule addressed by this proposal with the date 
that it was amended by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
           Local agency             Rule No.         Rule title               Revised             Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD...........................        414  Storage of Reactive       09/14/99...........  05/26/00
                                               Organic Compound
                                               Liquids.
----------------------------------------------------------------------------------------------------------------

    On October 6, 2000, this rule submittal 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?

    We approved a version of Rules 413 and 414 into the SIP on January 
27, 1981 (46 FR 8472).

C. What Is the Purpose of the Submitted Rule Revisions?

    [sbull] The existing rule is rewritten for clarity.
    [sbull] The scope of the rule is broadened to cover the storage of 
all reactive organic liquids, except gasoline, in a greater number of 
storage tanks.
    [sbull] Added is an exemption for gasoline storage tanks because 
they are covered under ICAPCD Rule 415, Transfer and Storage of 
Gasoline. See 67 FR 65873 (October 29, 2002).
    [sbull] Added is a limited exemption from requirements for vapor 
loss control devices for an emergency standby tank when the tank is 
drained or if the operator has obtained a variance for a breakdown of 
the primary tank.
    [sbull] Added is a limited exemption from requirements for vapor 
loss control devices or closure devices for out-of-service or empty 
storage tanks undergoing cleaning, stock change, tank and roof repair, 
or removal of contaminated stock.
    [sbull] Added is a 72-hour exemption from requirements for vapor 
loss control devices or closure devices for in-service tanks undergoing 
preventive maintenance, including, but not limited to primary seal 
inspection, removal or installation of a secondary seal, repairs of 
regulators, fittings, deck components, hatches, valves, roofs, flame 
arrestors, or compressors.
    [sbull] Upgraded are requirements for gaps, seals, and roof covers 
based on federal standards of performance for volatile organic liquid 
storage and standards of performance for bulk gasoline terminals.
    [sbull] Added is a table to specify appropriate vapor pressure and 
temperature for stored liquids.
    [sbull] Added are recordkeeping requirements and test methods.
    [sbull] Added is a compliance schedule for tanks requiring 
modification to meet the rule requirements. The TSD has more 
information about these rules.

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 
ICAPCD regulates a transitional ozone nonattainment area subject to 
subpart 1 of part D, title I requirements. See 40 CFR part 81 and the 
discussion in the Background section of the TSD. We must require Rule 
414 to correct relaxation and enforcement-related deficiencies, but the 
rule is not required to fulfill RACT.
    Guidance and policy documents that we used to define specific 
enforceability and RACT requirements include the following:
    [sbull] Portions of the proposed post-1987 ozone and carbon 
monoxide policy that concern RACT, 52 FR 45044 (November 24, 1987).
    [sbull] Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations, EPA (May 25, 1988) (the Bluebook).
    [sbull] Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies, EPA Region 9 (August 21, 2001) (the Little Bluebook).
    [sbull] Control of Volatile Organic Emissions from Petroleum Liquid 
Storage in External Floating Roof Tanks, EPA-450/2-78-047.
    [sbull] Control of Volatile Organic Emissions from Petroleum Liquid 
Storage in Fixed Roof Tanks, EPA-450/2-77-036.
    [sbull] State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup and Shutdown, EPA Office of Air 
and Radiation and EPA Office of Enforcement and Compliance Assurance 
(September 20, 1999).

B. Does the Rule Meet the Evaluation Criteria?

    This rule improves the SIP by broadening the scope of the rule to 
cover a greater number of ROC liquids (except gasoline, which is cover 
by SIP-approved ICAPCD Rule 415) in a greater number of storage tanks 
by lowering the applicability thresholds for vapor pressure and tank 
capacity. This rule also improves the SIP by adding testing methods and 
reporting and recordkeeping requirements. Rule provisions which do not 
meet the evaluation criteria are summarized below and discussed further 
in the TSD.

C. What Are the Rule Deficiencies?

    These provisions conflict with section 110 and part D of the Act 
and prevent full approval of the SIP revision:
    [sbull] 414.A.3.b: This paragraph refers to a variance for a 
breakdown of a primary

[[Page 40235]]

tank. Variances are not allowed under section 110(i) of the CAA unless 
they are submitted as individual SIP revisions by a State and then 
approved by EPA.
    [sbull] 414.A.3.b: The limited exemption to the provisions of 
subsections B.2 and B.3 for emergency standby tanks when they are 
drained was apparently intended instead to reference subsections B.2 
and B.4, which require vapor loss control devices. The limited 
exemption represents a relaxation relative to existing SIP ICAPCD Rule 
414, which had no such exemption, and may be inconsistent with sections 
110(l) and 193 of the CAA. ICAPCD must demonstrate that the exemption 
complies with sections 110(l) and 193 of the CAA. To demonstrate 
compliance with sections 110(l) and 193, EPA recommends that ICAPCD 
review and revise this subsection of ICAPCD Rule 414 to be consistent 
with the principles set forth in EPA's excess emissions policy. This 
policy represents EPA's interpretation of how SIP rules can account for 
malfunction, start-up and shutdown conditions while continuing to 
provide for attainment or maintenance of the NAAQS in accordance with 
the relevant provisions under the CAA that govern SIP revisions 
(sections 110(l) and 193) as well as the relevant provisions that 
govern general SIP enforceability (sections 110(a)(2)(A) and 302(k)). 
EPA would approve a SIP revision that complies with the excess 
emissions policy, but EPA may also approve a revision that follows a 
different approach to addressing malfunction, start-up and shutdown 
conditions so long as ICAPCD can demonstrate that its preferred 
approach does not interfere with attainment or maintenance of the 
NAAQS, reasonable further progress, or any other applicable requirement 
of the CAA.
    [sbull] 414.A.3.c: The limited exemption to the provisions of 
sections C, D, E, and F for out-of-service or empty storage tanks while 
they are undergoing cleaning, stock change, or tank or roof repairs, 
represents a relaxation relative to existing SIP ICAPCD Rule 414, which 
had no such exemption, and may be inconsistent with sections 110(l) and 
193 of the CAA. To demonstrate compliance with sections 110(l) and 193, 
EPA recommends that ICAPCD review and revise this subsection of ICAPCD 
Rule 414 to be consistent with the principles set forth in EPA's excess 
emissions policy. This policy represents EPA's interpretation of how 
SIP rules can account for malfunction, start-up and shutdown conditions 
while continuing to provide for attainment or maintenance of the NAAQS 
in accordance with the relevant provisions under the CAA that govern 
SIP revisions (sections 110(l) and 193) as well as the relevant 
provisions that govern general SIP enforceability (sections 
110(a)(2)(A) and 302(k)). EPA would approve a SIP revision that 
complies with the excess emissions policy, but EPA may also approve a 
revision that follows a different approach to addressing malfunction, 
start-up and shutdown conditions so long as ICAPCD can demonstrate that 
its preferred approach does not interfere with attainment or 
maintenance of the NAAQS, reasonable further progress, or any other 
applicable requirement of the CAA.
    [sbull] 414.A.3.d.7: This subparagraph allows the Director 
discretion to extend the time of non-applicability of sections C, D, E, 
and F in a preventive maintenance beyond a 72-hour limit. Such 
discretion is inconsistent with the SIP-revision process described in 
section 110(a) of the CAA and the enforceability requirements of 
section (a)(2)(A).
    [sbull] 414.J: The issue date of the ASTM methods cited in this 
section should preferably be updated. For example, D-287-82 could be D-
287-92; D-323-82 could be D-323-94; D-2879-86 could be D-2879-96; and 
D-4057-88 could be D-4057-95.
    [sbull] 414.J.1.c.6 and 414.J.1.c.7: The sampling methods in these 
paragraphs relate to the determination of vapor pressure where the API 
gravity of the oil is <20 degrees API gravity. However, the 
introductory paragraph J.1.c applies to 20 degrees API 
gravity. A new introductory paragraph is needed for <20 degrees API 
gravity. Furthermore, experience at the SBCAPCD has shown that these 
sampling methods do not work well in practice for <20 degrees API 
gravity, due to excessive viscosity of the sample. SBCAPCD recommends 
the HOST method, Test Method for Vapor Pressure of Reactive Organic 
Compounds in Heavy Crude Oil Using Gas Chromatography, for <20 degrees 
API gravity. See SBCAPCD Rule 326.K.1.b.
    [sbull] 414.Table 1: There is an error in the maximum temperature 
for toluene, since the maximum temperature should be higher for 1.5 
psia than for 0.5 psia.

D. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the CAA, 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, and hereby 
supercedes the related existing SIP Rules ICAPCD 413 and 414. 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 CAA 
unless EPA approves subsequent SIP revisions that correct the rule 
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 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

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 this local agency 
rule.

                Table 2.--Ozone Nonattainment Milestones
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                   Date                                 Event
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory

[[Page 40236]]

action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Paperwork Reduction Act

    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.)

C. 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 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 approve 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.
    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).

D. Unfunded Mandates Reform Act

    Under sections 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 
the 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 approval action proposed 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 Federal action proposes to 
approve 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.

E. Executive Order 13132, Federalism

    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 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 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. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not 
apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    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.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This 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.

I. 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

[[Page 40237]]

and applicable when developing programs and policies unless doing so 
would be inconsistent with applicable law or otherwise impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action 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, Reporting and recordkeeping 
requirements, Volatile organic compound.

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

    Dated: June 19, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 03-16926 Filed 7-3-03; 8:45 am]
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