[Federal Register: April 25, 2003 (Volume 68, Number 80)]
[Proposed Rules]
[Page 20356-20360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap03-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA264-373; FRL-7488-3]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District, Yolo-Solano Air
Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a limited approval and limited disapproval of
revisions to the San Joaquin Valley Unified Air Pollution Control
District (SJVUAPCD) and Yolo-Solano Air Quality Management District
(YSAQMD) portions of the California State Implementation Plan (SIP).
These revisions concern volatile organic compound (VOC) emissions from
industries storing, loading, and transfering organic liquids as part of
their operations. We are proposing action on local rules regulating
these emission sources under the Clean Air Act as amended in 1990 (CAA
or the Act). We are taking comments on this proposal and plan to follow
with a final action.
[[Page 20357]]
DATES: Any comments must arrive by May 27, 2003.
ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
You can inspect copies of the submitted SIP revision and EPA's
technical support document (TSD) at our Region IX office during normal
business hours. You may also see copies of the submitted SIP revisions
at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814;
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726; and,
Yolo-Solano Air Quality Management District, 1947 Galileo Court, Suite
103, Davis, CA 95616.
A copy of the rule may also be available via the Internet at http://www.arb.ca.gov/drdb/drdbltxt.htm.
Please be advised that this is not
an EPA Web site and may not contain the same version of the rule that
was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, EPA Region IX,
(415) 947-4111.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the rule revisions?
II. EPA's Evaluation and Action
A. How is EPA evaluating the rules?
B. Do the rules meet the evaluation criteria?
C. What are the rule deficiencies?
D. EPA recommendations to further improve the rules.
E. Proposed action and public comment.
III. Background Information
Why were these rules submitted?
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What Rules Did the State Submit?
Table 1 lists the rules addressed by this proposal with the dates
they were adopted by the local air agency and submitted by the
California Air Resources Board (CARB).
Table 1.--Submitted Rules
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Rule
Local agency Rule title Adopted Submitted
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SJVUAPCD....................... 4623 Storage of Organic Liquids................................. 12/20/01 03/15/02
YSAQMD......................... 2.21 Organic Liquid Loading..................................... 06/12/02 08/06/02
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--On May 7, 2002 and August 30, 2002, respectively, EPA found that
the SJVUAPCD Rule 4623 and YSAQMD Rule 2.21 submittals met the
completeness criteria in 40 CFR part 51, appendix V. These criteria
must be met before formal EPA review can begin.
B. Are There Other Versions of These Rules?
We approved a version of SJVUAPCD Rule 4623 into the SIP on May 13,
1993 (see 58 FR 28354). Similarly, we approved a version of YSAQMD Rule
2.21 into the SIP on August 21, 1995 (see 60 FR 43383). CARB has made
no subsequent submittals of these rules.
C. What Is the Purpose of the Rule Revisions?
To reduce VOC emissions at industrial sites storing and transfering
organic liquids, Rule 4623 establishes vapor pressure containment and
control requirements for organic liquid storage tanks. Tanks and
systems of tanks must have a vapor recovery system that recovers at
least 95% of ROC vapors by weight or combusts excess vapors. Rule 4623
also sets specific requirements for vapor loss control devices, closure
devices, external floating roofs, and internal floating roofs.
SJVUAPCD's December 20, 2001 amendments to Rule 4623 included these
significant changes to the 1991 version within the SIP.
[sbull] Rule applicability was changed from tanks that store
organic liquids of 1.5 total vapor pressure (TVP) to tanks storing
organic liquids of 0.5 TVP. Also, the rule applies to tanks with a
design capacity of 1100 gallons or more.
[sbull] Twenty new definitions were added to the rule and several
others were amended.
[sbull] Section 5.4 was deleted and replaced with an exemption for
gasoline storage tanks with a capacity less than 19,800 gallons subject
to SJVUAPCD Rule 4621-Gasoline Transfer Into Stationary Storage
Container, Delivery Vessels and Bulk Plants.
[sbull] An exemption for tanks storing or processing ``clean
produced water'' was added.
[sbull] An exemption was added for tanks used in wine fermentation
and for the storage of resulting by-products, and spirits.
[sbull] The exemption for small producer's tanks with capacity of
2000 barrels (84,000 gallons) or less with a throughput of less than
150 barrels (6300 gallons) of oil per day will sunset by November 14,
2003. This exemption is replaced with one for small producer's tanks
having a daily throughput of 50 barrels per tank.
[sbull] The rule's general VOC control system requirements are now
based on the tank size and the TVP of the stored liquid.
[sbull] Requirements were added for when internal and external
floating roofs are landed on their leg supports.
[sbull] Requirements were added for floating roof deck fittings,
inspection of floating roof tanks, and submitting tank inspection plans
and deviation inspection reports.
[sbull] A voluntary tank inspection, maintenance, and cleaning
program was added.
[sbull] A requirement was added for initial and periodic TVP and/or
API gravity testing of stored organic liquid in each uncontrolled fixed
roof tank or a representative tank. Instead of periodic testing, an
operator may install and operate the appropriate VOC control system.
[sbull] To complement the requirements listed above and to enhance
rule effectiveness, several recordkeeping requirements were added.
[sbull] A ``Test Method for Vapor Pressure of Reactive Organic
Compounds for Heavy Crude Oil using Gas Chromatograph'' for crude oil
with an API gravity of 20 degrees or less was added, as was Test Method
ASTM D 323-94 for determining the TVP of other organic liquids.
YSAQMD Rule 2.21 establishes vapor pressure containment and control
requirements for organic liquid storage tanks, as well as specific
requirements for external floating roofs, internal floating roofs,
vapor recovery systems, deck fittings, mechanical shoe seal and
[[Page 20358]]
secondary seal, resilient toroid or liquid mounted seals and secondary
seals, terminal loading, bulk plant loading, transport vessels, switch
loading operating practices, and storage tank cleaning. YSAQMD's June
12, 2002 amendments to Rule 2.21 listed below included these
significant changes to the 1995 SIP version.
[sbull] YSAQMD deleted exemptions for low volume loading
facilities, small gasoline storage containers, containers serviced by
exempted delivery vessels, and implements of husbandry. Also, special
circumstance exemptions for terminals were deleted.
[sbull] Thirty new definitions were added.
[sbull] A requirement was added that for storage tanks greater than
40,000 gallons using internal and external floating roofs that all new
or replacement primary seal installations be a mechanical shoe or
liquid mounted. Several other requirements were added for these tanks
at sections 301.1-301.5.
[sbull] A lower explosive limit monitoring requirement was added
for internal floating roof tanks.
[sbull] Deck fitting requirements were added for internal and
external floating roof tanks.
[sbull] Annual emission testing requirements were added for
external floating roof tanks, bulk plants and terminals.
[sbull] Periodic maintenance, monitoring, reporting, and record
keeping requirements were added to stroage tanks, bulk plants, and
terminals.
The subject TSD has more information about these rules and their
amendments.
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
major sources in nonattainment areas (see section 182(a)(2)(A)), and
must not relax existing requirements (see sections 110(l) and 193).
Both the SJVUAPCD and the YSAQMD regulate an ozone nonattainment area
(see 40 CFR part 81), so both SJVUAPCD Rule 4623 and Rule YSAQMD Rule
2.21 must fulfill RACT.
Guidance and policy documents that we used to help evaluate
specific enforceability and RACT requirements consistently 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. ``Control of Volatile Organic Emissions from Petroleum Liquid
Storage in External Floating Roof Tanks,'' EPA-450/2-78-047, USEPA,
December 1978;
5. ``Control of Volatile Organic Emissions from Storage of
Petroleum Liquids in Fixed-Roof Tanks,'' EPA-450/2-77-036, USEPA,
December 1977; and,
6. ``Control of Volatile Organic Compound Leaks from Gasoline Tank
Trucks and Vapor Collection Systems,'' EPA-450/2-78-051, USEPA,
December 1978.
B. Do the Rules Meet the Evaluation Criteria?
Both SJVUAPCD Rule 4623 and YSAQMD 2.21 improve the SIP by
establishing more stringent emission limits and monitoring and
maintenance requirements, and eliminating exemptions. Each rule is
largely consistent with the relevant policy and guidance regarding
enforceability, RACT and SIP relaxations. However, within each rule
there are provisions which do not meet the evaluation criteria. These
provisions are summarized below and discussed further in the TSD.
C. What Are the Rule Deficiencies?
Within SJVUAPCD Rule 4623, the provisions discussed below conflict
with section 110 of the Act and raise enforceability issues preventing
EPA's full approval of the SIP revision.
[sbull] Section 5.6.1 is unclear on two points. First, it
references requirements in section 6.4.6; these requirements are
unclear in how they apply to section 5.6.1. For example, no VOC control
requirement is clearly specified. Second, a typographical error exists
in how section 5.6.1 references either section 6.4.6 or section 6.4.7.
[sbull] Section 7.1 has a missing compliance date and conflicting
dates in its last sentence.
Within YSAQMD 2.21, the provisions discussed below conflict with
section 110 of the Act and raise rule enforceability issues preventing
EPA's full approval of the SIP revision. In part, Rule 2.21's
deficiencies relate to an EPA policy described within a memorandum
dated September 20, 1999, entitled ``State Implementation Plans: Policy
Regarding Excess Emissions During Malfunctions, Start-up, and
Shutdown'' (the Excess Emissions Policy).
Taken together Section 111 and Section 501 are inconsistent with
the EPA policy on exemptions for excess emissions during malfunctions,
start-up and shutdown. Furthermore, the Air Pollution Control Officer
(APCO) discretion within section 111 for approving maintenance plans is
a case of unbounded ``director's discretion'' as there are no criteria
delimiting the APCO's authority for approving maintenance plans. These
provisions violate EPA requirements concerning enforceability and and
rule relaxations.
D. EPA Recommendations To Further Improve the Rules
SJVUAPCD added an exemption to Rule 4623 for tanks used in wine
fermentation and for storage of resulting products, by-products, and
spirits. Formerly, these tanks were not subject to the SIP rule given
the TVP of ethanol is less than 1.5 psia under the storage conditions
assumed by the rule. Now, given the amendment of the rule to include
tanks with a TVP of 0.5 psia, wine and spirit industry storage tanks
may be subject to the rule depending upon their size. However, an
examination of our guidance and the rule's regulatory history shows
that Rule 4623 has been and is intended to regulate storage tanks
containing organic liquids derived primarily from petroleum extraction,
refining, and storage. Consequently, we have not listed the exemption
for winery and spirit industry storage tanks as a rule deficiency.
What remains at issue is whether or not winery and spirit industry
storage tanks represent a significant source of VOC emissions that must
be reduced if the San Joaquin Valley is to meet CAA RACT and NAAQS
requirements. Recently, the SJVUAPCD listed a winery rule as a
potential control measure in their Reasonable Further Progress Planning
Document. They estimated potential VOC emissions from the wine and
spirit industries at 8.5 tons per day (page 4-11, Table 4-3: Tier II
Control Measures, ``Proposed 2003 and 2005 Rate of Progress Plan,'' 7/
24/02).
We believe this level of VOC emissions to be significant and
deserving of further study and analysis. SJVUAPCD should determine
whether a regulation reducing VOC emissions from the winery and spirits
industry in the San Joaquin Valley should be developed to meet CAA RACT
and NAAQS attainment requirements. This determination should be done as
part of demonstrating that their attainment plan to meet the ozone
NAAQS contains all reasonably available control measures per section
172(c)(1) of the CAA.
[[Page 20359]]
E. Proposed Action and Public Comment
As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is
proposing a limited approval of these submitted rules to improve the
SIP. If finalized, this action would incorporate the submitted rules
into the SIP, including those provisions identified as deficient. This
approval is limited because EPA is simultaneously proposing a limited
disapproval of the rules under section 110(k)(3). If this disapproval
is finalized, sanctions will be imposed under section 179 of the Act
unless EPA approves subsequent SIP revisions that correct each rule's
deficiencies within 18 months. These sanctions would be imposed
according to 40 CFR 52.31. A final disapproval would also trigger the
federal implementation plan (FIP) requirement under section 110(c).
Note that the respective submitted rule has been adopted by the
SJVUAPCD and YSAQMD. EPA's final limited disapproval would not prevent
these local agencies from enforcing their rule.
We will accept comments from the public on the proposed limited
approval and limited disapproval for the next 30 days.
III. Background Information
Why Were These Rules Submitted?
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. Table 2 lists some of
the national milestones leading to the submittal of this local agency
VOC rule.
Table 2.--Ozone Nonattainment Milestones
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Date Event
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March 3, 1978............................. EPA promulgated a list of
ozone nonattainment areas
under the Clean Air Act as
amended in 1977. 43 FR
8964; 40 CFR 81.305.
May 26, 1988.............................. EPA notified Governors that
parts of their SIPs were
inadequate to attain and
maintain the ozone standard
and requested that they
correct the deficiencies
(EPA's SIP-Call). See
section 110(a)(2)(H) of the
pre-amended Act.
November 15, 1990......................... Clean Air Act Amendments of
1990 were enacted. Pub. L.
101-549, 104 Stat. 2399,
codified at 42 U.S.C. 7401-
7671q.
May 15, 1991.............................. Section 182(a)(2)(A)
requires that ozone
nonattainment areas correct
deficient RACT rules by
this date.
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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 rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
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 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 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 partial approval action proposed does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action proposes
to approve in part 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
[[Page 20360]]
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 approves in part 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 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
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
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 compound.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 11, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 03-10267 Filed 4-24-03; 8:45 am]
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