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[Federal Register: May 10, 2010 (Volume 75, Number 89)]
[Rules and Regulations]               
[Page 25775-25778]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10my10-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0573; FRL-9146-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing disapproval of a revision to the South Coast 
Air Quality Management District (SCAQMD) portion of the California 
State Implementation Plan (SIP). This action was proposed in the 
Federal Register on September 8, 2009 and concerns volatile organic 
compound (VOC) emissions from polymeric foam manufacturing operations. 
Under authority of the Clean Air Act as amended in 1990 (CAA or the 
Act), this action identifies several deficiencies in SCAQMD Rule 1175.

DATES: Effective Date: This rule is effective on June 9, 2010.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2009-0573 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: 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. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On September 8, 2009 (74 FR 46044), EPA proposed to disapprove the 
following rule that was submitted for incorporation into the California 
SIP.

----------------------------------------------------------------------------------------------------------------
                                              Rule
               Local agency                  Number              Rule title               Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD...................................       1175  Control of Emissions from the        09/07/07     03/07/08
                                                       Manufacturing of Polymeric
                                                       Cellular (Foam) Products.
----------------------------------------------------------------------------------------------------------------

    We proposed to disapprove this rule because some rule provisions do 
not satisfy the requirements of section 110 and part D of the Act. 
These provisions include the following:
    A. The rule must require demonstration, through source testing 
approved in writing by the Executive 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).
    B. 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.\1\ 
Rule 1175 should also be revised where possible to identify these 
parameters.
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    \1\ SCAQMD implements a combined Title I preconstruction and 
Title V operating permit program.

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[[Page 25776]]

    C. 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.
    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 parties.
    A. Shawn Osler, Environmental Compliance Manager, Insulfoam LLC, to 
Andrew Steckel, EPA, letter dated October 7, 2009.
    B. Laki Tisopulos, Assistant Deputy Executive Officer, SCAQMD, to 
Andrew Steckel, EPA, letter dated October 8, 2009.
    The comments and our responses are summarized below.
    Comment #1: Insulfoam commented that EPA should reassess the 
proposed disapproval because the identified rule deficiencies are 
already adequately addressed by requirements in a Title V permit 
reviewed by EPA for the only facility affected by EPA's proposed 
disapproval of Rule 1175. Any changes to this permit would also require 
EPA review.
    Response #1: This comment could be logically extended to suggest 
that no industry-specific rules are needed in SIPs as long as the 
state/local agency has an adequate permit program. However, EPA has 
long interpreted CAA Section 110(a)(2)(A) to require enforceable 
requirements in SIP-approved regulations, and not just rely on permits.
    Comment #2: EPA should also reassess the proposed disapproval 
because recent SIP approvals within Region 9 indicate that EPA has not 
required analogous provisions as a condition of approval for all 
similar rules.
    Response #2: The primary provision at issue in SCAQMD Rule 1175 
requires 93% emission capture and control. Other SIP-approved 
stationary source rules that establish analogous emission capture and 
control requirements generally require both: (a) An initial compliance 
test to demonstrate the control efficiency, and (b) ongoing monitoring 
to demonstrate that key parameters (e.g., temperature of afterburner) 
are maintained consistent with the conditions demonstrated during the 
successful source test. The deficiencies identified by EPA's proposed 
disapproval are unusual because Rule 1175 fails to require either 
initial compliance testing or sufficient ongoing monitoring. We also 
note that the comment does not identify any specific inconsistent SIP 
approvals.
    Comment #3: At a minimum, EPA should consider partial or 
conditional approval of Rule 1175 instead of full disapproval.
    Response #3: Bethlehem Steel Corp. v. Gorsuch (742 F. Second 1028 
Seventh Circuit, 1984) limits EPA's ability to publish partial 
approvals. If we could partially approve Rule 1175, we would likely 
need to exclude the new 93% compliance option that is the primary 
subject of our proposed limited disapproval which would have the same 
effect as our full disapproval action as proposed. See Response 
7 below regarding conditional approvals.
    Comment #4: SCAQMD commented that the pre-September 7, 2007 version 
of Rule 1175 has served as a model to the rest of the country and has 
been approved into the SIP without any of the issues raised by EPA.
    Response #4: We agree with the comment and acknowledge SCAQMD's 
leadership in regulating this industry. We note that: (a) The issues we 
have identified as deficiencies are largely raised by the September 7, 
2007 revisions; and (b) our disapproval of the September 7, 2007 
version would retain the previous version in the SIP, which has served 
as a model rule.
    Comment #5: The September 7, 2007 amendment further improves the 
efficacy of the rule by providing the one block foam manufacturer in 
South Coast with an environmentally superior alternative compliance 
option.
    Response #5: The deficiencies identified in our proposed 
disapproval largely address our concerns that the new alternative 
compliance option, as described in the rule, is not adequately 
enforceable.
    Comment #6: The revisions suggested by EPA are not necessary and of 
limited usefulness at best because SCAQMD already includes permit 
conditions establishing the required parameters and source testing as 
EPA requested.
    Response #6: See Response 1.
    Comment #7: If EPA declines to fully approve the rule, SCAQMD 
prefers a conditional approval pursuant to CAA Section 110(k)(4) in 
lieu of the proposed disapproval.
    Response #7: The State has not fulfilled the requirements of CAA 
Section 100(k)(4) for a conditional approval, which include a 
commitment from the State to adopt specific enforceable measures by a 
certain date.
    Comment #8: Prompt approval of Rule 1175 will expedite 
implementation by the one affected facility of the environmentally 
superior alternative compliance option provided in paragraph 
(c)(4)(B)(iii).
    Response #8: While we are not opining on whether paragraph 
(c)(4)(B)(iii) provides an environmentally superior alternative 
compliance option, we do not believe that this and related paragraphs 
in Rule 1175 are fully enforceable as discussed in our proposed action 
and required by CAA Section 110(a).
    Comment #9: AQMD staff will be prepared to develop an 
administrative amendment that would explicitly require source testing 
and permits be obtained by any impacted facility.
    Response #9: We believe such a rule amendment would address the 
deficiencies identified in our proposal and we look forward to working 
with SCAQMD on specific rule text. See also Response 7 above.
    Comment #10: AQMD staff would object to the notion that specific 
parameters be identified in the rule. To establish industry-wide 
operational parameters within the rule is impractical and that level of 
detail is best left to be identified during the permitting process.
    Response #10: We concur with this comment and believe it is 
consistent with our proposed action.

III. EPA Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, EPA is finalizing a full disapproval of 
the submitted rule. This action retains the existing SIP rule in the 
SIP. There are no sanction or FIP implications of this action pursuant 
to CAA Sections 179 or 110(c), as this is not a required CAA submittal.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction

[[Page 25777]]

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 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 disapproves 
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 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 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.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent

[[Page 25778]]

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 proposed rulemaking. In reviewing SIP submissions, 
EPA's role is to approve or disapprove state choices, based on the 
criteria of the Clean Air Act. Accordingly, this action merely 
disapproves certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary authority to address, as 
appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.

K. 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 June 9, 2010.

L. 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 July 9, 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, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 18, 2010.
Jared Blumenfeld,
Regional Administrator, Region IX.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart F--California

0
2. Section 52.242 is amended by adding paragraph (a)(1)(iii) to read as 
follows:

Sec.  52.242  Disapproved rules and regulations.

    (a) * * *
    (1) * * *
    (iii) Rule 1175, ``Control of Emissions from the Manufacturing of 
Polymeric Cellular (Foam) Products,'' submitted on March 7, 2008 and 
adopted on September 7, 2007.
* * * * *
[FR Doc. 2010-10921 Filed 5-7-10; 8:45 am]
BILLING CODE 6560-50-P
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