[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Proposed Rules]
[Pages 41745-41747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17784]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2011-0546; FRL-9438-9]


Revisions to the California State Implementation Plan, San 
Joaquin Valley Unified 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 Unified Air Pollution Control 
District portion of the California State Implementation Plan (SIP). 
These revisions concern volatile organic compound (VOC) emissions from 
the manufacture of polystyrene, polyethylene, and polypropylene 
products. We are proposing action on a local rule that regulates these 
emission sources under the Clean Air Act as amended in 1990 (CAA). We 
are taking comments on this proposal and plan to follow with a final 
action.

DATES: Any comments must arrive by August 15, 2011.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2011-0546, 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: Generally, documents in the docket for this action are 
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 at http://www.regulations.gov, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material, large maps), 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: Mae Wang, EPA Region IX, (415) 947-
4124, [email protected].

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 deficiencies?
    D. EPA Recommendations To Further Improve the Rule.
    E. Proposed Action and Public Comment.
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    We are proposing a limited approval and limited disapproval of San 
Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) Rule 
4682, Polystyrene, Polyethylene, and Polypropylene Products 
Manufacturing, amended on September 20, 2007, and submitted by the 
California Air Resources Board (CARB) on March 7, 2008. On April 17, 
2008, the submittal for SJVUAPCD Rule 4682 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 an earlier version of Rule 4682 into the SIP on June 
13, 1995 (60 FR 31086).

C. What is the purpose of the submitted rule?

    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. Rule 4682 was 
designed to reduce emissions of VOCs from the manufacturing, 
processing, and storage of products composed of polystyrene, 
polyethylene, or polypropylene. EPA's technical support document (TSD) 
has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

    Generally, SIP rules must be enforceable (see CAA section 110(a)), 
and must require Reasonably Available Control Technology (RACT) for 
each category of sources covered by a Control Techniques Guidelines 
document as well as each major source in

[[Page 41746]]

nonattainment areas (see CAA sections 182(a)(2) and (b)(2)). The 
SJVUAPCD regulates an ozone nonattainment area (see 40 CFR part 81), so 
Rule 4682 must fulfill RACT.
    Guidance and policy documents that we use to evaluate 
enforceability and RACT requirements consistently include the 
following:
    1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' EPA, May 25, 1988 (the Bluebook).
    2. ``Guidance Document for Correcting Common VOC & Other Rule 
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
    3. ``Control of VOC Emissions from Polystyrene Foam Manufacturing'' 
(EPA-450/3-90-020, September 1990).
    4. ``Averaging Times for Compliance With VOC Emission Limits--SIP 
Revision Policy,'' memorandum from John R. O'Connor, OAQPS, dated 
January 20, 1984.
    Additionally, SIP revisions must not interfere with any applicable 
requirement concerning attainment and reasonable further progress (RFP) 
or any other applicable requirement of the CAA (see CAA section 110(l)) 
or modify, in a nonattainment area, any SIP-approved control 
requirement in effect before November 15, 1990 (see CAA section 193).

B. Does the rule meet the evaluation criteria?

    Rule 4682 improves the SIP by clarifying language, adding 
definitions, and adding control requirements. This rule also improves 
the SIP by adding requirements for compliance plans, recordkeeping, and 
testing. The rule is generally clear and contains appropriate 
monitoring, reporting, and recordkeeping requirements to ensure the 
emission limits are adequately enforceable. The rule is largely 
consistent with the relevant policy and guidance regarding 
enforceability, RACT and SIP relaxations. We are proposing to determine 
that our approval of the submittal would comply with CAA section 
110(l), because the proposed SIP revision would not interfere with the 
on-going process for ensuring that requirements for RFP and attainment 
of the National Ambient Air Quality Standards are met, and the 
submitted SIP revision is at least as stringent as the rule previously 
approved into the SIP. Rule provisions which do not meet the evaluation 
criteria are summarized below and discussed further in the TSD.

C. What are the rule deficiencies?

    Rule 4682 contains a monthly averaging provision that conflicts 
with CAA section 110 and part D, and prevents full approval of the SIP 
revision. Section 5.3.1 of Rule 4682 establishes an emission limit of 
2.4 pounds of VOC per 100 pounds of total material processed, as 
averaged on a monthly basis. EPA generally cannot approve compliance 
periods exceeding 24 hours unless specific criteria are met, including 
a clear explanation of why the application of RACT is not economically 
or technically feasible on a daily basis. Rules for this source 
category in other districts contain similar limits without the monthly 
averaging. A more detailed discussion of this deficiency is contained 
in the TSD.

D. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that we recommend 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 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. This approval 
is limited because EPA is simultaneously proposing a limited 
disapproval of the rule under CAA section 110(k)(3). If this 
disapproval is finalized, sanctions will be imposed under CAA section 
179 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 2-year clock for the federal implementation plan 
requirement under section 110(c). Note that the submitted rule has been 
adopted by the SJVUAPCD, and EPA's final limited disapproval would not 
prevent the local agency from enforcing it. The limited disapproval 
also would not prevent any portion of the rule from being incorporated 
by reference into the federally enforceable SIP as discussed in a July 
9, 1992, EPA memo found at: http://www.epa.gov/nsr/ttnnsr01/gen/pdf/memo-s.pdf.
    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).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 or disapprovals under 
section 110 and subchapter I, part D of the CAA do not create any new 
requirements but simply approve or disapprove requirements that the 
State is already imposing. Therefore, because the proposed Federal SIP 
limited approval/limited disapproval 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 CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of State action. The CAA 
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, 
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

[[Page 41747]]

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 limited approval/limited disapproval 
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 and disapprove 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 proposes to approve or disapprove a State rule implementing a 
federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. 
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.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: June 29, 2011.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2011-17784 Filed 7-14-11; 8:45 am]
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