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 Environmental Protection Agency 40 CFR Part 52
[EPA-R09-OAR-2009-0573; FRL-8953-6]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Proposed rule.
 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 
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                        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: steckel.andrew@epa.gov.* 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, 
                        *steckel.andrew@epa.gov.*


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
SubmittedSCAQMD
1175
Control of Emissions from the Manufacturing of Polymeric Cellular (Foam) Products
09/07/07
03/07/08
 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 
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                    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 
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                    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] BILLING CODE 6560-50-P