[Federal Register Volume 74, Number 136 (Friday, July 17, 2009)]
[Proposed Rules]
[Pages 34704-34707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17045]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 74, No. 136 / Friday, July 17, 2009 / 
Proposed Rules  

[[Page 34704]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0475; FRL-8932-2]


Revisions to the California State Implementation Plan, San 
Joaquin Valley 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 San Joaquin Valley Air Pollution Control District 
(SJVAPCD) portion of the California State Implementation Plan (SIP). 
These revisions concern volatile organic compound (VOC) emissions from 
steam-enhanced crude oil production well vents, aerospace coating 
operations, and polyester resin operations. We are proposing action on 
local rules that regulate 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: Any comments must arrive by August 17, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0475, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Sona Chilingaryan, EPA Region IX, 
(415) 972-3368, [email protected].

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

Table of Contents

I. The State's Submittal
    A. What Rules Did the State Submit?
    B. Are There Other Versions of These Rules?
    C. What Is the Purpose of the Submitted Rule Revisions?
II. EPA's Evaluation and Action
    A. How Is EPA Evaluating the Rules?
    B. Do the Rules Meet the Evaluation Criteria?
    C. What Are the Rule Deficiencies?
    D. EPA Recommendations To Further Improve the Rules
    E. Proposed Action and Public Comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

    Table 1 lists the rules addressed by this proposal with the dates 
that they were adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
              Local agency                  Rule No.              Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVAPCD.................................         4401  Steam-Enhanced Crude Oil            12/14/06       5/8/07
                                                        Production Wells.
SJVAPCD.................................         4605  Aerospace Assembly and               9/20/07       3/7/08
                                                        Component Coating Operations.
SJVAPCD.................................         4684  Polyester Resin Operations.....      9/20/07       3/7/08
----------------------------------------------------------------------------------------------------------------

    On July 23, 2007, EPA determined that the submittal for Rule 4401 
met the completeness criteria in 40 CFR Part 51, Appendix V, which must 
be met before formal EPA review. On April 17, 2008, EPA determined that 
the submittal for Rules 4605 and 4684 met the completeness criteria.

B. Are There Other Versions of These Rules?

    We approved an earlier version of Rule 4401 into the SIP on June 
22, 1998 (63 FR 33854). The SJVAPCD adopted revisions to the SIP-
approved version on December 14, 2006. We approved an earlier version 
of Rule 4605 into the SIP on November 14, 2003 (68 FR 64537). The 
SJVAPCD adopted revisions to the SIP-approved version on September 20, 
2007. We approved an earlier version of Rule 4684 into the SIP on June 
26, 2002 (67 FR 42999). The SJVAPCD adopted revisions to the SIP-
approved version on September 20, 2007.

[[Page 34705]]

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

    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. The revisions to Rule 
4401 narrow exemptions, add leak inspection and repair requirements, 
enhance monitoring and recordkeeping requirements and improve rule 
clarity. The revisions to Rule 4605 and Rule 4684 improve rule clarity 
and strengthen the solvent cleaning provisions. EPA's technical support 
documents (TSD) have more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
each category of sources covered by a Control Techniques Guidelines 
(CTG) document as well as each major source in nonattainment areas (see 
section 182(a)(2) and (b)(2)), and must not relax existing requirements 
(see sections 110(l) and 193). The SJVAPCD regulates an extreme (for 
the 1-hour NAAQS) and serious (for the 8-hour NAAQS) ozone 
nonattainment area (see 40 CFR part 81), so Rules 4401, 4605, and 4684 
must fulfill RACT.
    Guidance and policy documents that we use to evaluate 
enforceability and RACT requirements consistently 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,'' EPA, May 25, 1988 (the Bluebook).
    3. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    4. ``Surface Coating Operations at Aerospace Manufacturing & Rework 
Operations,'' EPA-453/R-97-004, December 1997.
    5. ``Control Techniques Guidelines for Fiberglass Boat 
Manufacturing Materials,'' EPA-453/R-08-004, September 2008.
    6. ``State Implementation Plans, General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498, Apr. 16, 1992.
    7. ``Preamble, Final Rule to Implement the 8-hour Ozone National 
Ambient Air Quality Standard,'' 70 FR 71612, Nov. 29, 2005.
    8. Letter from William T. Harnett to Regional Air Division 
Directors, ``RACT Qs & As--Reasonable Available Control Technology 
(RACT) Questions and Answers,'' May 18, 2006.

B. Do the Rules Meet the Evaluation Criteria?

    Rule 4401 improves the SIP by establishing more stringent work 
practice requirements and by enhancing monitoring and recordkeeping 
provisions. Rules 4605 and 4684 improve the SIP by clarifying 
monitoring and recordkeeping provisions and establishing more stringent 
emission limits for solvents. The rules are 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 Deficiencies?

    These provisions do not satisfy the requirements of section 110 and 
part D of the Act and prevent full approval of the SIP revision.
    1. Rule 4401 allows sources to request a waiver from an annual 
source test requirement if approval is granted by the District, CARB, 
and EPA. However, Rule 4401 states that a request for a waiver is 
deemed approved by EPA if we do not object within 45 days of receipt. 
The SJVAPCD cannot obligate EPA's decision making in this manner. 
Section 6.2.4 effectively provides executive officer discretion in 
conflict with CAA sections 110(a) and (i) and long-standing national 
policy.
    2. Rule 4605 does not include seventeen of the specialty VOC 
coating limits provided in the 1997 CTG for coating operations at 
aerospace facilities and has limits for two other specialty coating 
categories that are higher than the applicable limits listed in the 
CTG. SJVAPCD has not demonstrated that the CTG limits are infeasible in 
San Joaquin Valley or otherwise adequately demonstrated that Rule 4605 
implements RACT.
    3. Rule 4684 contains limits that are not as stringent as 
requirements in several other California districts. Fiberglass boat 
manufacturing facilities subject to this rule are covered by EPA's 2008 
CTG for Fiberglass Boat Manufacturing Materials. As such, the District 
is required to adopt and submit a SIP revision that satisfies RACT for 
these sources by September 2009. In addition, Rule 4684 appears also to 
apply to certain other sources that are not covered by the CTG but that 
emit major amounts of VOCs. These sources are also subject to RACT 
because they are major sources of ozone precursors. The District has 
not demonstrated that the more stringent monomer content requirements 
and capture and control device requirements in other California rules 
are infeasible in San Joaquin Valley or otherwise adequately 
demonstrated that Rule 4684 meets RACT.

D. EPA Recommendations To Further Improve the Rules

    The TSDs describe additional rule revisions that we 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 rules to improve the SIP. 
If finalized, this action would incorporate the submitted rules into 
the SIP, including those provisions identified as deficient. This 
approval is limited because EPA is simultaneously proposing a limited 
disapproval of the rules 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 
deficiencies within 18 months of the disapproval. These sanctions would 
be imposed according to 40 CFR 52.31. A final disapproval would also 
trigger the two year clock for the Federal implementation plan (FIP) 
requirement under section 110(c). Note that the submitted rules have 
been adopted by the SJVAPCD, 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. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b).

[[Page 34706]]

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.
    EPA specifically solicits additional comment on this proposed rule 
from Tribal officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

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 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, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping

[[Page 34707]]

requirements, Volatile organic compounds.

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

    Dated: June 30, 2009.
Jane Diamond,
Acting Deputy Regional Administrator, Region IX.
[FR Doc. E9-17045 Filed 7-16-09; 8:45 am]
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