## SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

APPENDIX D: Federal Register & EPA TSD June 16, 20 11

Final Draft Staff Report with Appendices For Proposed Amendments to Ru le 4401 

## D-1 

# APPENDIX D

Federal Register/Vol. 75, No. 16 & EPA Technical Support Document

June 16, 2011

## SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DI STRICT

APPENDIX D: Federal Register & EPA TSD June 16, 20 11

Final Draft Staff Report with Appendices For Proposed Amendments to Ru le 4401 

## D-2 This page intentionally blank.

### 3996 Federal Register / Vol. 75, No. 16 / Tuesday, January 26, 2010 / Rules and Regulations

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

**Subpart BB—Montana**

■ 2. Section 52.1370 is amended by adding paragraph (c)(68) to read as
follows:

**§ 52.1370 Identification of plan.**

* * * * *

(c) * * * (68) Revisions to the State Implementation plan which were submitted by the State of Montana on November 1, 2006 and November 20,
2007. The revisions are to the Administrative Rules of Montana; they make minor editorial and grammatical changes, update the citations and
references to federal and state laws and regulations, make other minor changes to conform to federal regulations, and update links to sources of information.

(i) Incorporation by reference. (A) Administrative Rules of Montana (ARM) section 17.8.101, Definitions; effective August 11, 2006.

(B) Administrative Rules of Montana (ARM) sections: 17.8.102, Incorporation by Reference—Publication Dates;
17.8.103, Incorporation by Reference and Availability of Referenced Documents; 17.8.302(1)(d), Incorporation by Reference; 17.8.602, Incorporation by Reference; 17.8.801, Definitions; 17.8.818, Review of Major Stationary Sources and Major Modifications—Source Applicability and Exemptions; 17.8.901, Definitions;
17.8.1007, Baseline for Determining Credit for Emissions and Air Quality Offsets; and, 17.8.1102, Incorporation by Reference; all effective October 26,

2007.

[FR Doc. 2010–1386 Filed 1–25–10; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R09–OAR–2009–0475; FRL–9104–7]**

**Revisions to the California State Implementation Plan, San Joaquin**  **Valley Air Pollution Control District**

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Final rule.

**SUMMARY :**  EPA is finalizing a limited approval and limited disapproval of revisions to the San Joaquin Valley Air Pollution Control District (SJVAPCD or District) portion of the California State Implementation Plan (SIP). This action was proposed in the Federal Register on July 17, 2009 and concerns volatile organic compound (VOC) emissions
from steam-enhanced crude oil production well vents, aerospace coating operations, and polyester resin operations. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), this action simultaneously approves local rules that regulate these
emission sources and directs California
to correct rule deficiencies. **DATES :**  Effective Date: This rule is effective on February 25, 2010.

**ADDRESSES :**  EPA has established docket
number EPA–R09–OAR–2009–0475 for
this action. The index to the docket is available electronically at 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 :**  Nicole Law, EPA Region IX, (415) 947–
4126, law.nicole@epa.gov.

**SUPPLEMENTARY INFORMATION :**  Throughout this document, ‘‘ we, ’’ ‘‘ us ’’
and ‘‘ our ’’ refer to EPA.

Table of Contents

I. Proposed Action II. Public Comments and EPA Responses

III. EPA Action IV. Statutory and Executive Order Reviews
I. Proposed Action

On July 17, 2009 (74 FR 34704), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into
the California SIP.

Local agency Rule No. Rule title Adopted Submitted

SJVAPCD .................................. 4401 Steam-Enhanced Crude Oil Production Wells ............................ 12/14/06 05/ 08/07
SJVAPCD .................................. 4605 Aerospace Assembly and Component Coating Operations ........ 09/20/07 03/07/08
SJVAPCD .................................. 4684 Polyester Resin Operations ....................................................... .. 09/20/07 03/07/08

We proposed a limited approval
because we determined that these rules improve the SIP and are largely
consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions do not fully satisfy requirements of section 110 and part D
of the Act. The deficiencies include the following:

1. Rule 4401 authorizes the District to grant a waiver from SIP requirements, in

section 6.2.4.

2. SJVAPCD has not adequately
demonstrated that Rule 4605 and Rule 4684 implement RACT.

Our proposed action contains more
information on the basis for this rulemaking and on our evaluation of the
submittal. II. Public Comments and EPA Responses

EPA’s proposed action provided a 30- day public comment period. During this period, we received comments from the following party.

1. Scott Nester, Director of Planning, San Joaquin Valley Air Pollution Control District; letter dated and received August 17, 2009.

After the close of the comment period,
we also received comments from the following party.

2. Sayed Sadredin, Executive
Director/Air Pollution Control Officer of San Joaquin Valley Air Pollution Control District; letter dated August 27, 2009 and received August 31, 2009.

The comments and our responses are summarized below. Although we are not obligated to address comments submitted after the close of the comment period, we are addressing below both the District’s August 17
comments and those comments in the District’s August 27 letter that pertain to the rules we are acting on today.

SJVAPCD Aug. 17 Comment #1: The District stated that its staff has proposed to amend Rule 4684 to implement requirements in the September 2008 Control Techniques Guideline (CTG) for fiberglass boat manufacturing materials.

EPA Response: We appreciate SJVAPCD’s efforts to promptly address RACT requirements for sources covered by the 2008 CTG for Fiberglass Boat Manufacturing Materials (2008 CTG), but we are obligated to act at this time
on the submitted version of Rule 4684. In addition, we note that Rule 4684
should be revised to address RACT


### 3997 Federal Register / Vol. 75, No. 16 / Tuesday, January 26, 2010 / Rules and Regulations

1 Technical Support Document For EPA’s Notice of Direct Final Rulemaking On Revisions to the California State Implementation Plan: EPA’s Analysis of San Joaquin Valley Unified Air Pollution Control District’s Rule 4684, Polyester Resin Operations, EPA Region IX, May 2009 (Rule 4684 TSD), at pp. 4–9.

2 See 70 FR 71612 at 71655 (November 29, 2005) (Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2);
see also NRDC v. EPA, 571 F. 3d 1245, 1254 (DC Cir. 2009) (holding that EPA’s case-by-case approach to RACT ensures that ‘‘ RACT
determinations will reflect advances in technology ’’ ).

3 See pg. 4–349 and 4–350 of SJVAPCD’s April 16,
2009 RACT Demonstration for the District’s review of SCAQMD Rule 1162 and VCAPCD Rule 74.14.

4 See SCAQMD Rule 1162, amended July 11, 2003. SCAQMD subsequently made other
amendments to Rule 1162 that did not alter the
monomer content limits. See SCAQMD Rule 1162 amended July 9, 2004 and SCAQMD Rule 1162 amended July 8, 2005.

5 See SCAQMD Rule 1162, amended May 13,

1994.

6 See VCAPCD Rule 74.14, amended April 12,

2005. requirements not only for sources covered by the 2008 CTG, but also for VOC major sources that are subject to Rule 4684 but not addressed by the 2008

CTG. See 74 FR 34705.

SJVAPCD Aug. 17 Comment #2: The
District stated that EPA had commented that the VOC limits, emission control system efficiency, and applicationmethods in existing Rule 4684 for nonfiberglass boat manufacturing facilities are less stringent than other air districts’ rules and, therefore, constitute RACT deficiencies. The District encouraged EPA to fully approve Rule 4684 because: (1) According to District staff research,
no ozone nonattainment areas in other states have specific regulations on polyester resin operations, (2) the VOC
limits and emission control requirements of Rule 4684 are
consistent with the California Air Resources Board’s (CARB’s)

‘‘ Determination of Reasonably Available
and Best Available Retrofit Control Technology for Polyester Resin Operations, ’’ which should define RACT requirements in the absence of a CTG for this category, and (3) although the
limits in Rule 4684 are not identical to
those in other California air districts’ rules, those rules have been recently
amended and their limits are considered beyond RACT.

EPA Response: The District’s
characterization of the Rule 4684 deficiencies identified in our proposed action is not entirely accurate. To clarify, we noted that Rule 4684 appears to apply to major VOC sources that are not covered by the 2008 CTG, and that
the District had not demonstrated that the more stringent requirements for these types of sources identified in other
California rules are not feasible in the San Joaquin Valley or otherwise adequately demonstrated that Rule 4684 implements RACT for these major

sources. 74 FR 34704 at 34705.

As to the District’s specific arguments in support of full approval, we do not agree that these provide a basis for full approval. First, whether or not any other
states with ozone nonattainment areas have RACT rules for polyester resin operations, SJVAPCD is required to have such rules under CAA § 182(b)(2) because it regulates facilities within this source category that are major sources of
VOCs. As noted in the TSD for our proposed action, the RACT rules in three of four nearby districts that SJVAPCD reviewed as part of its 2009 RACT SIP contain more stringent monomer content requirements and more stringent overall capture and control efficiency requirements than Rule 4684. 1 The District has not demonstrated that these more stringent requirements are not reasonably achievable or that the requirements inRule 4684 implement RACT for nonCTG major VOC sources in the San Joaquin Valley ( i.e., sources other than fiberglass boat manufacturing facilities).

Second, we do not agree with the
District’s assertion that CARB’s

‘‘ Determination of Reasonably Available
and Best Available Retrofit Control Technology for Polyester Resin Operations ’’ (RACT and BARCT Guidance) defines RACT in the absence of a CTG for this source category. States are required to consider the latest information available in making RACT determinations and to provide supporting information with their RACT
submissions to EPA. 2 This is because RACT can change over time as new technology becomes available or the cost of technology decreases.

Indeed, CARB’s RACT and BARCT Guidance is dated January 8, 1991, and
since then several California districts near the SJVAPCD have revised their polyester resin rules to incorporate more stringent limits. The District has not supported its evaluation of Rule 4684
with a demonstration that these more stringent requirements are not economically or technically feasible for major source polyester resin operations in the San Joaquin Valley.

Finally, we note that the more stringent monomer content and overall capture and control efficiency requirements in the South Coast Air Quality Management District (SCAQMD) and the Ventura County Air Pollution Control District (VCAPCD) polyester resin rules that SJVAPCD reviewed have been effective for many

years. 3 Specifically, the monomer content limits in section (c)(2)(A) of SCAQMD’s polyester resin rule (Rule 1162) became effective in 2003, 4 and the 90% overall capture and control efficiency requirement in the rule has been effective for at least 15 years. 5 The
monomer content limits in VCAPCD’s polyester resin rule (Rule 74.14) and the 90% overall capture and control efficiency requirement have been
effective since 2005. 6 As such, we do not believe the District has adequately supported its assertion that the limits in
these rules are ‘‘ beyond RACT. ’’

SJVAPCD Aug. 17 Comment #3: The
District stated that its staff will review
the benefits and costs of ‘‘ strengthening this rule beyond RACT in the context of an attainment plan control measure. ’’

EPA Response: We appreciate the District’s efforts to strengthen these rules as part of its broader attainment goals, and we expect these efforts can proceed consistent with the CAA deadlines associated with today’s final
action on Rule 4684.

SJVAPCD Aug. 27 Comment #1: SJVAPCD requested that we reflect on its positive working relationship with EPA and its record of accomplishments, and stated that its enclosed responses
would address most of EPA’s concerns. The District stated that the San Joaquin Valley needs emission reductions as quickly as feasible and that it was, therefore, hesitant to ‘‘ divert resources to unnecessary bureaucratic work associated with rulemaking projects that are not demonstrated to have significant potential for additional reductions or enforceability. ’’ The District urged that

its ‘‘ efforts not be delayed or hampered, and that [the District] receive a full approval for [its] regulatory efforts. ’’

EPA Response: We appreciate the District’s efforts to improve air quality in the San Joaquin Valley as expeditiously as possible. Our concerns, however, are based on CAA RACT requirements that the District is required to address in accordance with specified deadlines. These RACT requirements apply independent of the significance of the resulting emission reductions or other air quality improvement efforts. We discuss these requirements further below and in our proposal.

SJVAPCD Aug. 27 Comment #2: SJVAPCD acknowledged that EPA had proposed a limited approval/limited disapproval of Rule 4401 because of the provision that states that waiver requests are ‘‘ deemed approved ’’ by EPA if EPA does not object within 45 days. The District stated, however, that EPA


### 3998 Federal Register / Vol. 75, No. 16 / Tuesday, January 26, 2010 / Rules and Regulations

7 See ‘‘ Title V Permit Review Protocol Agreement: San Joaquin Valley Unified APCD, United States Environmental Protection Agency, Region IX, ’’
October 1998.

8 If the permitting agency fails to adequately address EPA’s objection(s) within 90 days, title V authorizes EPA to issue or deny the title V permit. CAA § 505(b)(3); 40 CFR 70.8(c). The District also references SJVAPCD Rule 2520 (Federally Mandated Operating Permits), which implements title V requirements. These provisions related to the District’s title V operating permit program are not relevant to our action today. 9 See Guidance Document for Correcting Common VOC & Other Rule Deficiencies (A.K.A., The Little Bluebook), U.S. EPA Region IX, Revised August 21, 2001, at pg. 17. should approve Rule 4401 for two reasons. First, the District stated that precedent for this language can be found
in the October 1998 ‘‘ Title V Review Protocol Agreement ’’ between the District and EPA Region IX, which
states that ‘‘ During this period, the EPA may approve the district’s proposal either in writing, or by choosing not to provide written comments. ’’ The district stated that this language is identical to the language in Section 6.2.4 of Rule 4401, that Rule 2520 (Federally Mandated Operating Permits) also contains similar language, and that EPA had not objected to the requirements of Section 6.2.4 in Rule 4401 during the rulemaking process. Second, the District
stated that ‘‘ [w]hile the Clean Air Act may prohibit the District from requiring the EPA to take action, it does not preclude the EPA from agreeing to a
reasonable timeframe in which to take action, as indicated by the referenced

memo. ’’ The District further explained that operators need timely notification of whether their waiver requests have been approved, due to the time needed to schedule and perform expensive and time-consuming source tests, and that
Rule 4401 should take these needs into

account.

EPA Response: We disagree with the
District’s assertion that the October 1998

‘‘ Title V Review Protocol Agreement ’’ between the District and EPA (Title V Agreement) provides precedent for the language in Rule 4401. Title V of the CAA specifically authorizes EPA to object to a title V operating permit that is not in compliance with CAA applicable requirements within 45 days after receiving a copy of the proposed permit from the state/local permitting agency. CAA § 505(b)(1); 40 CFR 70.8(c). The District refers to language in the Title V Agreement that describes the process following EPA’s 45-day review period through which SJVAPCD will resolve title V objections that EPA has
raised. 7 In this context, where the District has timely submitted information adequately addressing EPA’s objections, EPA has agreed that the District may in some cases treat our
silence as concurrence with the District’s revised proposal. 8 The CAA does not establish any such process for state/local waivers to the requirements of a federally-approved SIP. To the contrary, section 110(i) of the Act specifically prohibits EPA and the States from taking any ‘‘ action modifying any requirement of an applicable implementation plan * * * with respect to any stationary source ’’ except as otherwise authorized by the
Act. Section 6.2.4 of Rule 4401 effectively allows the District to grant a waiver to federally-approved SIP requirements if EPA does not object within 45 days of receiving the District’s request for concurrence. Without a process that ensures that any such waiver is granted only upon EPA approval in accordance with CAA requirements, this provision is inconsistent with the requirements of the Act and cannot be approved.

We note that the District may address these concerns by providing explicit and replicable procedures within the rule that tightly define how the
District’s discretion will be exercised to assure equivalent emission reductions. 9

As to the District’s comment that EPA did not object to this provision during its local rulemaking process, we regret not identifying this issue earlier but
note that our failure to do so does not remove our obligation to ensure full compliance with the CAA when taking
formal action on SIP submittals.

SJVAPCD Aug. 27 Comment #3: SJVAPCD acknowledged that EPA had proposed a limited approval/limited disapproval of Rule 4605 because of concerns about certain VOC coating limits, but stated that EPA should approve Rule 4605 for two reasons. First, the District stated that its staff had compared the limits in Rule 4605 to the limits in EPA’s 1997 CTG for coating operations at aerospace facilities and in other California district rules, and found that (1) Rule 4605’s VOC limit for Sealant (Extrudable/Rollable/Brushable) is consistent with BAAQMD’s Rule 8– 29, and (2) Rule 4605’s limit for Sealant (Fastener) is consistent with SCAQMD’s Rule 1124 and Ventura County Air
Pollution Control District’s Rule 74.13. Second, the District stated that it plans to amend Rule 4605 during the first quarter of 2010 to incorporate the coating types and limits contained in the 1997 CTG, and that it would also
consider the additional recommendations provided in EPA’s TSD in its next rule revision process. EPA Response: EPA’s 1997 CTG on Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations (1997 CTG) generally defines presumptive RACT for this activity nationwide. In our proposed action (74 FR at 34705), we noted that the District had not adequately addressed
recommendations in the 1997 CTG for 19 coating categories. The District now identifies rules in neighboring districts
that are consistent with Rule 4605 for two of these coating categories, but it
fails to demonstrate that the CTG
recommendations for those two categories are not reasonably achievable in the San Joaquin Valley. Moreover, the
District fails to address the other 17 coating categories for which the 1997 CTG recommends specific limits. In order to satisfy CAA RACT requirements, the District must either demonstrate that Rule 4605 implements current-day RACT for all of these coating operations or certify, where appropriate, that certain coating operations do not occur in the San Joaquin Valley.

As to the District’s statement that it plans to amend Rule 4605 during the first quarter of 2010 to incorporate the
CTG recommendations and EPA’s additional recommendations, we appreciate these rule improvement efforts but note that we are obligated to
act at this time on the submitted version
of Rule 4605.

SJVAPCD Aug. 27 Comment #4: The District acknowledged that EPA had proposed a limited approval/limited disapproval of Rule 4684 because of concerns about the resin and gel coat monomer content limits and capture and control efficiency requirements. The District stated, however, that EPA should fully approve the rule for two reasons. First, the District asserted that the rules in the other districts cited by EPA should be considered beyond RACT as those rules were recently adopted, and because there is no CTG for non-fiberglass boat manufacturing or general polyester resin fiberglass boat manufacturing. The District stated that

‘‘ EPA’s long-standing historical position
is that in the absence of a CTG * * *
the standards that have been successfully implemented in other districts or states [are] minimum RACT
unless demonstrated that those standards are beyond RACT, ’’ and that
the District had made such a demonstration (that the other districts’ rules are beyond RACT) in its RACT analysis for Rule 4686. The District
further stated that some of these rules were developed after SJVAPCD began developing Rule 4686 and, therefore,


### 3999 Federal Register / Vol. 75, No. 16 / Tuesday, January 26, 2010 / Rules and Regulations

‘‘ could not be utilized in the Rule 4686 development process. ’’

Second, the District stated that although EPA is not calling out deficiencies related to the September 2008 fiberglass boat manufacturing CTG, the District is in the process of amending Rule 4684 to incorporate the
CTG recommendations and that rule adoption is scheduled for September 17,

2009.

EPA Response: First, we disagree with
the District’s assertion that it has demonstrated that the more stringent
limits in other districts’ rules are beyond RACT. See response to SJVAPCD Aug. 17 Comment #2, above. Second, we also disagree with the
District’s statement that some of the more stringent rules in other districts were developed after the District had begun its Rule 4684 development process. The District adopted the version of Rule 4684 that we are acting on today in 2007, and the more stringent polyester resin rules that the District
referenced in its 2009 RACT SIP were
last modified in 2005 or earlier. See response to SJVAPCD Aug. 17 Comment #2, above. Finally, as to the District’s statement that it is in the process of amending Rule 4684 to incorporate the CTG recommendations, we appreciate the District’s ongoing rule improvement
efforts and will evaluate those rule revisions when they are submitted to us for incorporation into the SIP. See response to SJVAPCD Aug. 17 Comment

#1.

III. EPA Action

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the
submitted rules. This action incorporates the submitted rules into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rules. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that
correct the rule deficiencies within 18
months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions
that correct the rule deficiencies within
24 months of the effective date of this
action. Note that the submitted rules have been adopted by the San Joaquin Valley Air Pollution Control District, and EPA’s final limited disapproval does not prevent the local agency from enforcing them.

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 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 (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 and limited approvals/limited disapprovals 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 this limited approval/limited disapproval action 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 section205, EPA must select the most costeffective 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 limited approval/limited disapproval action promulgated 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 approves 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


### 4000 Federal Register / Vol. 75, No. 16 / Tuesday, January 26, 2010 / Rules and Regulations

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 final 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

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. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General
of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in
the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register.
This action is not a ‘‘ major rule ’’ as defined by 5 U.S.C. 804(2). This rule
will be effective on February 25, 2010.

K. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of
this action must be filed in the United States Court of Appeals for the appropriate circuit by March 29, 2010. Filing a petition for reconsideration by
the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements ( see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

Dated: December 11, 2009.
Laura Yoshii, Acting Regional Administrator, Region IX.

■ Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as
follows: **PART 52—[AMENDED]**

■ 1. The authority citation for Part 52
continues to read as follows:

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

**Subpart F—California**

■ 2. Section 52.220, is amended by adding paragraphs (c)(350)(i)(C)( 2 ), (354)(i)(E)( 11 ) and (354)(i)(E)( 12 ) to read
as follows:

**§ 52.220 Identification of plan.**

* * * * *

(c) * * * (350) * * * (i) * * * (C) * * * ( 2 ) Rule 4401, ‘‘ Steam-Enhanced Crude Oil Production Wells, ’’ adopted on December 14, 2006.

* * * * *

(354) * * * (i) * * * (E) * * * ( 11 ) Rule 4605, ‘‘ Aerospace Assembly and Component Coating Operations, ’’ adopted on September 20, 2007.

( 12 ) 4684, ‘‘ Polyester Resin Operations, ’’ adopted on September 20,

2007.

* * * * *

[FR Doc. 2010–1385 Filed 1–25–10; 8:45 am]

**BILLING CODE 6560–50–P**

**DEPARTMENT OF HOMELAND**
**SECURITY**

**Federal Emergency Management Agency** 

**44 CFR Part 64**

**[Docket ID FEMA–2008–0020; Internal Agency Docket No. FEMA–8113]** 

**Suspension of Community Eligibility**

**AGENCY :**  Federal Emergency Management Agency, DHS.

**ACTION :**  Final rule.

**SUMMARY :**  This rule identifies communities, where the sale of flood
insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed
within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and


## This page intentionally blank.

## Technical Support Document

for EPA's Notice of Proposed Rulem aking

on revisions to the

California State Im plementation Plan

as submitted by the State of California, Air Resources Board for the San Joaquin Valley Air Pollution Control District

EPA’s Analysis of San Joaquin Valley Air Pollution Control District’s Rule 4401, Steam-Enhanced Crude Oil Production Wells

United States Environmental Protection Agency, Region IX

Air Division

June 2009

Jerald S. WamsleySJVAPCD - Rule 4401, Steam-Enhanced Crude Oil Production Wells;
TSD, 06/09



## 2 Chronology of Rule Adoption, Submittal and EPA Actions

- On June 22, 1998, EPA approved and incorporated into the SIP the January 15, 1998

amendments of Rule 4401. Please see 63 Federal Register 33854.

- On December 14, 2006, the San Joaquin Valley Air Pollution Control District (SJVAPCD) Governing Board amended Rule 4401.

- On May 8, 2007, the California Air Resources Board (CARB) submitted Rule 4401 to EPA as

a revision to the California State Im plementation Plan (SIP).

- On July 23, 2007, EPA found com plete CARB's May 8, 2007 submittal.

Rule Summary

SJVAPCD Rule 4401, Steam-Enhanced Crude Oil Production Wells is designed to reduce fugitive volatile organic compound (VOC) emissions at these sites. The rule establishes requirements for inspection, com ponent replacement, re-inspection, maintenance, repair periods, and replacement/retrofit for leaking components. It also describes associated administrative and recordkeeping requirements, such as an inspection log, for determining compliance. The December 14, 2006 amendments to the rule are summarized below.

1. Added definitions for component, critical process unit, facility, inspection, leak, leak

minimi zation, front line production equipment, gauge tank, and various components such as compressors, pressure relief device and pump. (See Section 3.0).

2. Revised exemptions including: (a) sunsets section 4.2 on January 1, 2009; (b) reduced the number of cyclic wells that can be exempted in section 4.5; (c) sunsets section 4.6 on December 31, 2008; (d) added exem ptions in sections 4.7, 4.8, and 4.9 for components that do not leak appreciably and are difficult to inspect such as underground components.

3. Sunsets existing requirements in sections 5.1 - 5.4 and replaced them with sections 5.5 - 5.9. This retains the emission control standards of the prior requirements while adding leak standards, repair, inspection and re-inspection requirements for various com ponents.

4. Extended record maintenance requirements from two years to five, requires an inspection log, and added various testing and inspection recordkeeping and reporting requirements. (See Section 6.1)

5. Allows a waiver of annual source test provisions and require vapour pressure testing of gauge tanks every 2 years. (See Section 6.2)SJVAPCD - Rule 4401, Steam-Enhanced Crude Oil Production Wells;
TSD, 06/09



## 3 6. Updated test methods and added requirements for calibrating portable hydrocarbon detectors. (See Section 6.3)

7. Requires sources to maintain a log recording inspections and details of leaks found including number, nature, location and repairs. (see Section 6.4)

8. Requires sources to train employees in inspection, leak determ ination, and recordkeeping. (See Section 6.5)

9. Requires exempt sources to provide an operator management plan describing the facility, components, hazards, inspection schedules, and personnel training. (see Section 6.6)

Rule Evaluation

The memoranda, guidance, and statute cited below were used to review the submitted rule.

1. To evaluate compliance with the Reasonably Available Control Technology (RACT) requirements of CAA §182(b)(2): SJVAPCD ’s 2009 RACT SIP Demonstration (April 16, 2009); “Pream ble, Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard: (70 FR 71612 November 29, 2005); Letter from William T. Hartnett to Regional Air Division Directors, “RACT Qs & As – Reasonable Available Control Technology (RACT) Questions and Answers” (May 18, 2006); and other state and local rules for this

category.

2. To evaluate compliance with the CAA §110(a)(2)(A) requirement for enforceability: The Bluebook (“Issues Relating to VOC Regulation Cu tpoints, Deficiencies, and Deviations,” EPA, May 25, 1988); the Little Bluebook (“Guidance Document for Correcting Comm on VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001); and, “State Implementation Plans, General Preamble for the Implementation of Title I of the Clean Air Amendments of 1990” (57 FR 13498, April 16, 1992).

3. To evaluate compliance with CAA §110(l) and §193 regarding SIP relaxations, we compared the submitted rule against the existing SIP rule to determ ine if new provisions weaken the SIP approved rule.

On April 16, 2009, SJVAPCD adopted its “2009 RA CT SIP,” which provides the District’s demonstration that RACT is implemented f or all appropriate activities. This demonstration includes several pages discussing Rule 4401 (cover and applicable pages attached). To summarize, SJVAPCD made the following two findings: (1) There is no national guidance (e.g., CTG or ACT) or regulation (e.g., NSPS or NESHAP) to help define RACT for this activity; and, (2) overall, Rule 4401’s requirements are as stringent as other large California

nonattainment areas.SJVAPCD - Rule 4401, Steam-Enhanced Crude Oil Production Wells;
TSD, 06/09



## 4 EPA concurs with SJVAPCD’s findings and conc ludes that Rule 4401 implements RACT for three reasons. First, Rule 4401 requires significant emissions control; for example, steamenhanced crude oil production wells can not be operated unless uncontrolled VOC emissions from any well vent are reduced by at least 99 percent by weight. Second, Rule 4401 leak detection and repair (LDAR) requirements for crude oil production wells are consistent with other similar LDAR rules, such as SJVAPCD Rule 4409 - Components at Light Crude Oil Production Facilities, Natural Gas Production Facilities, and Natural Gas Processing Facilities and Monterey Bay Unified APCD Rule 427 - St eam Drive Crude Oil Production Wells. Finally, SJVAPCD, South Coast AQMD, and the other large California nonattainment agencies generally have the most stringent stationary source require ments nationwide, and we are not aware of other reasonably available technological or operational controls likely to reduce significantly emissions from this activity. In sum, we believe that Rule 4401 implements relevant RACT requirements.

With the exception of the deficiency identified below, the rule’s recordkeeping and other compliance provisions ensure that rule requirements can be enforced adequately. The

exem ptions added in Sections 4.7-4.9 do not weaken the SIP rule or submitted rule. Specifically, the exemption in Section 4.7 for produced fluid line components does not weaken the SIP rule because these components were not subject to the SIP rule. We note also that for light duty crude oil operations produced fluid line component emissions are regulated by Rule 4409. LDAR programs for heavy duty crude oil production lines are under study by the SJVAPCD. The exemptions in Section 4.8 do not weaken the SIP rule because they apply only to four categories of components that have nominal (if any) VOC emissions. Finally, the exemption in Section 4.9 for components carrying low (<10% by weight)-VOC gas and liquids does not apply to requirements of the SIP rule; this exemption applies only to new, more-rigorous inspection requirements that we propose to approve in this action. Note that components carrying low VOC gas and liquids are exempt only from routine inspection requirements, but if found to be leaking these components are still subject to the rule’s repair requirements. (See staff report pages 7-8.) In conclusion, the submitted rule is more stringent than the version previously approved into the SIP, does not relax the SIP, and complies with CAA §110(l) and §193.

Rule Deficiency

Section 6.2 of submitted Rule 4401 requires annual source testing, but allows SJVAPCD, CARB and EPA to waive this test requirement. Section 6.4 states that waiver requests are deemed approved by EPA if EPA does not object within 45 days of receipt. Wh ile we appreciate SJVAPCD’s desire to avoid delay, the local agency cannot obligate EPA’s decision in this manner. Section 6.2.4 effectively provides executive officer discretion in conflict with CAA §§110(a) and (i) and long-standing national policy as discussed in the bluebook and little bluebook. This deficiency can be corrected by removing the last sentence in section 6.2.4 of the

submitted rule.SJVAPCD - Rule 4401, Steam-Enhanced Crude Oil Production Wells;
TSD, 06/09



## 5 EPA Action

The December 14, 2006 amended Rule 4401 - Steam-Enhanced Crude Oil Production Wells implements RACT, strengthens the SIP, and is generally enforceable. As a result, EPA staff

recomm ends a limited approval of the rule pursuant to CAA §110(k)(3) and §301(a). However, EPA staff simultaneously recommends a limited disapproval of the rule as a result of the deficiency in section 6.2.4 of the Rule. We do not expect this deficiency to reduce significantly the projected emission reductions from SJVAPCD’s rule revisions.

Attachments

1. SJVAPCD, Rule 4401 - Steam-Enhanced Crude Oil Production Wells, adopted December 14, 2006. Change copy.

2. SJVAPCD, Rule 4401 - Steam-Enhanced Crude Oil Production Wells, adopted December 14, 2006.

3. “Final Staff Report: Proposed Amendments to Rule 4401 - Steam-Enhanced Crude Oil Production Wells,” December 14, 2006, SJVAPCD. Appendices not included.

4. “Reasonably Available Control Technology (RACT) Demonstration for Ozone State Implementation Plans (SIP)” SJVAPCD, April 16, 2009.

Additional References

1. “Issues Relating to VOC Regulation Cutpoint s, Deficiencies, and Deviations,” (a.k.a., Bluebook) EPA OAQPS, May 25, 1988.

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” (a.k.a., Little Bluebook), EPA Region 9, August 21, 2001.

3. Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

4. “State Implem entation Plans, General Preamble for the Implementation of Title I of the Clean Air Amendments of 1990” 57 FR 13498, April 16, 1992.

5. “Pream ble, Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard” 70 FR 71612; Nov. 29, 2005.

6. Letter from William T. Hartnett to Regional Air Division Directors, “RACT Qs & As –SJVAPCD - Rule 4401, Steam-Enhanced Crude Oil Production Wells;
TSD, 06/09



## 6 Reasonable Available Control Technology (RACT) Questions and Answers,” May 18,

2006.