[Federal Register Volume 74, Number 172 (Tuesday, September 8, 2009)]
[Proposed Rules]
[Pages 46044-46047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21550]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0573; FRL-8953-6]


Disapproval of State Implementation Plan Revisions, South Coast 
Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a revision to the South Coast 
Air Quality Management District (SCAQMD) portion of the California 
State Implementation Plan (SIP) concerning volatile organic compound 
(VOC) emissions from polymeric foam manufacturing operations. We are 
proposing action on a local rule that regulates these emission sources 
under the Clean Air Act as amended in 1990 (CAA or the Act). We are 
taking

[[Page 46045]]

comments on this proposal and plan to follow with a final action.

DATES: Any comments must arrive by October 8, 2009.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0573, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#f88b8c9d9b939d94d699969c8a9d8fb89d8899d69f978e"><span class="__cf_email__" data-cfemail="f6858293959d939ad8979892849381b6938697d8919980">[email protected]</span></a>.
    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: Andrew Steckel, EPA Region IX, (415) 
947-4115, <a href="/cdn-cgi/l/email-protection#433037262028262f6d222d27312634032633226d242c35"><span class="__cf_email__" data-cfemail="7d0e09181e161811531c13190f180a3d180d1c531a120b">[email protected]</span></a>.

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?

    Table 1 lists the rule proposed for disapproval with the date that 
it was adopted and submitted.

                                             Table 1--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local agency                  Rule No.              Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD..................................         1175  Control of Emissions from the       09/07/07     03/07/08
                                                        Manufacturing of Polymeric
                                                        Cellular (Foam) Products.
----------------------------------------------------------------------------------------------------------------

    On April 17, 2008, we determined that the rule submittal in Table 1 
met 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 previous version of Rule 1175 into the SIP on August 
25, 1994. Please see 57 FR 43751. There have been no subsequent and 
intervening submittals of Rule 1175.

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. Rule 1175 was 
designed to reduce VOCs, Chlorofluorocarbon (CFC), and methylene 
cloride emissions from expanded polystyrene (EPS) foam molders, direct 
injection polystyrene foam extrusion, polyurethane, isocyanurate and 
phenolic foam manufacturing operations. The District amended the Rule 
in order to provide expandable polystyrene molding operations with an 
additional compliance option.
    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 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 
sections 182(a)(2) and (b)(2)), and must not relax existing 
requirements (see sections 110(l) and 193). The SCAQMD regulates an 
area classified as severe nonattainment for ozone (see 40 CFR part 81), 
so Rule 1175 must fulfill RACT.
    Guidance and policy documents that we use to evaluate 
enforceability and RACT requirements include the following:
    1. Portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044, November 24, 1987.
    2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and 
Deviations,'' 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. ``State Implementation Plans; General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57 
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

B. Does the rule meet the evaluation criteria?

    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. We 
propose to disapprove the SIP revision based on the following 
deficiencies:
    1. The rule must require demonstration, through source testing 
approved in writing by the Executive

[[Page 46046]]

Officer, that the systems and techniques in place at a facility achieve 
93% collection and reduction of emissions for sources complying with 
paragraph (c)(4)(B)(iii).
    2. The rule must clarify that all operational techniques and 
parameters needed to achieve 93% control to comply with paragraph 
(c)(4)(B)(iii) must be clearly defined and enforceable through a 
federally enforceable permit such as a Title V operating permit. Rule 
1175 should also be revised where possible to identify these 
parameters.
    3. The rule must clarify that all operational techniques and 
parameters needed to achieve 90% collection and 95% destruction to 
comply with paragraphs (c)(4)(B)(i) and (ii) must be clearly defined 
and enforceable through a federally enforceable permit such as a Title 
V operating permit. Rule 1175 should also be revised where possible to 
identify these parameters.

D. EPA Recommendations To Further Improve the Rule

    The TSD describes additional rule revisions that do not affect 
EPA's current action but are recommended for the next time the local 
agency modifies the rules.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) of the Act, we are proposing a 
disapproval of the submitted SCAQMD Rule 1175. If finalized, this 
action would retain the existing SIP rule in the SIP. There are no 
sanction or FIP implications with this action pursuant to Clean Air Act 
Section 179, as this is not a required Clean Air Act submittal.
    We will accept comments from the public on the proposed 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 (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 disapprovals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply disapprove 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 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 
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 disapproves 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

[[Page 46047]]

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 disapproves 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, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: August 21, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E9-21550 Filed 9-4-09; 8:45 am]
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