[Federal Register Volume 66, Number 120 (Thursday, June 21, 2001)]
[Rules and Regulations]
[Pages 33177-33179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15617]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 226-0271; FRL-6998-3]


Revision to the California State Implementation Plan, Antelope 
Valley Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a full disapproval of a revision to the 
Antelope Valley Air Pollution Control District portion of the 
California State Implementation Plan (SIP). This action was proposed in 
the Federal Register on November 14, 2000 and concerns volatile organic 
compound (VOC) emissions from the transfer of gasoline at dispensing 
stations. We are taking this action under authority of the Clean Air 
Act as amended in 1990 (CAA or the Act).

EFFECTIVE DATE: This rule is effective on July 23, 2001.

ADDRESSES: You can inspect copies of the administrative record for this 
action at EPA's Region IX office during normal business hours. You can 
inspect copies of the submitted rule revisions at the following 
locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.
Environmental Protection Agency, Air Docket (6102), Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Antelope Valley Air Pollution Control District, 43301 Division 
Street, Suite 206, (P.O. Box 4038), Lancaster, CA 93539.


FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 744-1135.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Proposed Action

    On November 14, 2000 (65 FR 68111), EPA proposed a full disapproval 
of the following rule that was submitted for incorporation into the 
California SIP.

                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local agency                 Rule No.           Rule title              Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
AVAPCD.................................          461  Gasoline Transfer and             09/15/98        05/13/99
                                                       Dispensing.
----------------------------------------------------------------------------------------------------------------

    Our proposed action contains more information on the rule and our 
evaluation.

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:
     Charles L. Fryxell, AVAPCD; letter dated December 12, 2000 
and received December 14, 2000.
    The comments and our responses are summarized below.
    Comment I: AVAPCD disagrees with EPA that the reference to Rule 430 
must be removed from Rule 461 because Rule 430 is not in the SIP and is 
not appropriate for the SIP. AVAPCD argues that Rule 430 was 
appropriately submitted to EPA as a SIP revision to support the 
District's title V program. AVAPCD believes that pursuant to the part 
70 White Papers #1 and #2, submitted Rule 430 should be considered 
enforceable unless and until EPA disapproves it.
    Response: Page 19 of part 70 White Paper #2 provides for Districts 
to write Title V permits that rely on rules that have been submitted 
but not approved by EPA, where the District reasonably believes that 
the submitted rule will be approved. This does not adequately support 
the comment on Rule 461 because:
    (1) The White Papers do not address the case where a SIP rule, 
rather than a permit, references rules submitted but not approved.
    (2) Based on the EPA correspondence referenced in the comment, 
AVACPD cannot reasonably assume that the submitted Rule 430 will be 
approved.
    Because we believe Rule 430 will not be incorporated into the SIP 
and because we have identified other deficiencies in Rule 461, we 
believe it is appropriate to list the reference to Rule 430 as a 
deficiency in Rule 461. However, if AVAPCD continues to request EPA 
action on Rule 430, we can act on Rule 430 in a time frame consistent 
with District activity to revise Rule 461.
    Comment II: AVAPCD comments that they removed the ``Self-Compliance 
Program'' (SCP) from Rule 461 because South Coast Air Quality 
Management District (SCAQMD) audits showed that the SCP was 
ineffective. AVAPCD also comments that they intend to monitor changes 
that SCAQMD has made in their SCP and will consider EPA's suggested 
replacement program.
    Response: Information collected over the last several years by 
CARB, SCAQMD and others show considerable VOC emissions caused by 
inadequately maintained vapor recovery equipment. The SCP was designed 
to require regular equipment inspections and upkeep to ensure 
reasonable emission control. While this program may be flawed, we 
believe it has resulted in significant emission reductions. AVAPCD's 
removal of the SCP requirement without equivalent replacement violates 
sections 110(l), 182(b)(2), and 182(b)(3) of the CAA.
    Comment III: AVAPCD comments that the proposed disapproval should 
be a limited approval/limited disapproval, because the rule was 
previously approved into the SIP and portions of the proposed 
amendments, including the deletion of the training requirement, the 
conditional extension of the exemption for mobile fuelers, and a

[[Page 33178]]

wide variety of minor changes, were acceptable to EPA.
    Response: In general, we propose a limited approval/limited 
disapproval to SIP revisions that have minor deficiencies but 
strengthen the SIP overall. We believe this is not the case for the 
submitted Rule 461. None of the cited amendments and minor changes 
strengthen the SIP. The deletion of the requirement for the Self-
Compliance Program weakens the SIP overall. Therefore, it is preferable 
to maintain the existing version of the rule in the SIP until the 
deficiencies are corrected.

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 full 
disapproval of the submitted rule. This action retains the SIP rule in 
the California SIP. Sanctions will not be imposed under section 179 of 
the Act as described in 59 FR 39832 (August 4, 1994).

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 13045

    Executive Order 13045, entitled 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 E.O. 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 E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. E.O. 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 E.O. 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 E.O. 13132, because it merely 
acts on 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.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 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.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. 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, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

E. 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.
    EPA's disapproval of the state request under section 110 and 
subchapter I, part D of the Clean Air Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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).

F. Unfunded Mandates

    Under section 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 
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.

[[Page 33179]]

    EPA has determined that the approval 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 acts on 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.

G. 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.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

H. Submission to Congress and the Comptroller General

    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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

I. 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 August 20, 2001. 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: May 24, 2001.
Jane Diamond,
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 52.269 is amended by adding paragraph (b)(3)(iii) to 
read as follows:


Sec. 52.269  Control strategy and regulations: Photochemical oxidants 
(hydrocarbons) and carbon monoxide.

* * * * *
    (b) * * *
    (3) * * *
    (iii) Antelope Valley APCD.
    (A) Rule 461, Gasoline Transfer and Dispensing, submitted on May 
13, 1999, is disapproved. The version of this rule submitted on January 
31, 1996 (same title and number), which was previously approved in 40 
CFR 52.220, is retained.
* * * * *
[FR Doc. 01-15617 Filed 6-20-01; 8:45 am]
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