[Federal Register Volume 66, Number 143 (Wednesday, July 25, 2001)]
[Rules and Regulations]
[Pages 38561-38565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18411]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 210-0285; FRL-7013-4]


Revision to the California State Implementation Plan, Bay Area 
Air Quality Management District, Lake County Air Quality Management 
District, Monterey Bay Unified Air Pollution Control District, 
Sacramento Metropolitan Air Quality Management District, San Joaquin 
Valley Unified Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of a revision to the Bay Area Air Quality Management District (BAAQMD), 
Lake County Air Quality Management District (LCAQMD), Monterey Bay 
Unified Air Pollution Control District (MBUAPCD), Sacramento 
Metropolitan Air Quality Management District (SMAQMD), and San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) portions 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 gasoline dispensing stations. Under authority of the Clean Air Act 
as amended in 1990 (CAA or the Act), this action directs California to 
correct rule deficiencies.

EFFECTIVE DATE: This rule is effective on August 24, 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
Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94105
Lake County Air Quality Management District, 883 Lakeport Boulevard, 
Lakeport, CA 95453

[[Page 38562]]

Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud 
Court, Monterey, CA 93940
Sacramento Metropolitan Air Quality Management District, 8411 Jackson 
Road, Sacramento, CA 95826
San Joaquin Valley Unified Air Pollution Control District, 1990 East 
Gettysburg Street, Fresno, CA 93726

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 68114), EPA proposed a limited approval 
and limited disapproval of the rules in Table 1 that were submitted for 
incorporation into the California SIP.

                                           Table 1.--Submitted Rules'
----------------------------------------------------------------------------------------------------------------
          Local agency                    Rule no.                  Rule Title            Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
BAAQMD                            8-7                      Gasoline Dispensing             11/17/99      3/28/00
                                                            Facilities.
LCAQMD                            439.5                    Retail Gasoline Service         07/15/97     05/18/98
                                                            Stations.
MBUAPCD                           1002                     Transfer of Gasoline into       04/21/99     06/03/99
                                                            Vehicle Fuel Tanks.
SMAQMD                            449                      Transfer of Gasoline into       04/03/97     05/18/98
                                                            Vehicle Fuel Tanks.
SJVUAPCD                          4622                     Gasoline Transfer into          06/18/98     08/21/98
                                                            Vehicle Fuel Tanks.
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
rules improve the SIP and are largely consistent with the relevant CAA 
requirements. We simultaneously proposed a limited disapproval because 
some rule provisions conflict with section 110 and part D of the Act. 
Our proposed action contains more information on the rules 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 parties:

 Peter Hess, BAAQMD; letter dated December 12, 2000 and 
received on December 14, 2000.
 Scott Nester, SJVUAPCD; letter dated December 8, 2000 and 
received on December 11, 2000.

    The BAAQMD comments and our responses are summarized below.
    Comment I: BAAQMD disagrees that it is appropriate to cite the 
California Code of Regulations (CCR), title 17, section 94006, instead 
of Calfornia Health and Safety Code (CH&SC) 41960.2(c), as a reference 
for a list of vapor recovery system defects that substantially impair 
the effectiveness of the system. BAAQMD notes that CCR, title 17, 
section 94006 has not been revised since 1981 but that CH&SC 41960.2 
was revised in the year 2000 by Assembly Bill 1164 to include the 
requirement that substantial defects ``shall be specified in the 
applicable certification documents for each system.'' It is likely that 
some new defects will be listed only in California Air Resources Board 
(CARB) Executive Orders (EO) for certifications. BAAQMD states that it 
is unclear whether CARB will update the CCR, title 17, section 94006 
list, and that this situation presents an enforceability problem for 
the District. If Rule 8-7 cites only the CCR and the CCR list is not 
revised, the District would not have the authority to require that 
operators remedy new system defects that are not in the CCR list. 
BAAQMD states that all substantial defects would be subject to the rule 
by referencing CH&SC 41960.2(c).
    Response: Enforceability is also a concern for EPA. We require for 
clarity and for federal enforceability that the system defects that 
substantially impair the effectiveness of the system be listed or 
referenced in a readily-available public document. Two alternate ways 
to handle the enforceability problem are as follows:

 List all substantial system defects to be remedied in Rule 8-
7.
 Reference both CCR, title 17, section 94006, and CH&SC 
41960.2(c). We note that CARB is currently updating the CCR list as 
required by CH&SC 41960.2.

    Comment II: BAAQMD disagrees with including specific testing 
requirements in Rule 8-7. There are over 100 CARB-certified vapor 
recovery systems, for which stating individual testing requirements 
would be unwieldy. BAAQMD also disagrees with specifying a specific 
time period for reverification of performance tests. Some relatively 
reliable systems may be tested too often, thereby unnecessarily 
increasing gasoline emissions during the test procedure. Other 
unreliable systems may not be tested often enough, thereby allowing an 
increase of emissions during normal operation.
    BAAQMD believes that an arbitrary testing frequency may impose a 
financial hardship on businesses that have chosen a more reliable 
system.
    BAAQMD states that there is no data to justify testing as 
infrequently as every other year for all stations with In-Station 
Diagnostics.
    BAAQMD suggests that having testing and notification requirements 
in the Authority to Construct and the Permit to Operate is a practical 
way to incorporate the individual requirements that apply to specific 
systems and allow the District flexibility to address problems in 
certain systems.
    Response: EPA concurs that specifying one testing frequency for all 
equipment may not be necessary or efficient. However, we believe that 
BAAQMD's comment supports our conclusion that reverification testing 
every five years or longer is inadequate. While we understand that it 
is not current practice to allow such an extended time for 
reverification testing in the BAAQMD, the current text of Rule 8-7 
would not prevent it in all cases. Rule 8-7 should be revised, 
therefore, to require more frequent regular reverification. In general, 
we believe that six to twelve months is an appropriate reverification 
frequency. If the District wishes to maintain flexibility to change 
reverification frequency, the rule should specify the criteria that 
would be used in exercising this flexibility.
    We note that the South Coast Air Quality Management District has 
estimated that reverification testing every six months costs about 
$0.0012 per gallon of gasoline dispensed. This does not appear to be an 
unreasonable financial burden.
    We also note that the suggestion of having testing and notification 
requirements only in the Permit to Operate has not in the past resulted 
in a satisfactory testing frequency in Districts with rule language 
similar to BAAQMD's.
    The SJVUAPCD comments and our responses are summarized below.

[[Page 38563]]

    Comment I: SJVUAPCD has concurred with EPA's recommendations 
regarding four improvements to Rule 4922 as follows:
 Correction of the CCR reference for CARB certification 
procedures to CCR, title 17, section 94011.
 Addition of a requirement to keep maintenance records and 
reverification test records for two years.
 Revision of the requirement that new vapor recovery equipment 
be tested at least within the number of days required by the SIP rule.
 Stating the specific EPA-approved test method(s) to be used 
for air-to-liquid volume ratio.

    Comment II: SJVUAPCD believes that reverification of Dyamic Back-
Pressure Test and Static Leak Test annually is adequate and is 
consistent with the California Air Pollution Control Officers' 
Association Vapor Recovery Committee's recommendations to improve the 
performance of existing systems. The reverification of Air-to-Liquid 
Ratio would be done every six months, because this is currently 
required by Operating Permits. The District agrees that, if In-Station 
Diagnostics are used, the above reverification tests should be done 
every two years.
    However, SJVUAPCD believes that reverification of Liquid Removal 
Rate should only be done if there is an indication of pressure 
fluctuation during the Dynamic Back Pressure Test or if fuel drains 
from the dispensing nozzle when the vapor check valve is opened. The 
absence of both of these observations is a good indication that the 
liquid removal system is functioning properly, and therefore a specific 
testing frequency would not be appropriate. District staff intends to 
include this procedure in the rule as a method of determining whether 
the Liquid Removal Rate Test needs to be conducted in conjunction with 
the Dynamic Back-Pressure Test and Static Leak Test.
    Response: The reverification test frequencies suggested are within 
the range of EPA recommendations. It should be noted that In-Station 
Diagnostics is a relatively new technology for use in gasoline 
dispensing facilities. Recommending a lesser frequency of testing at 
this time may be appropriate to encourage its use. But subsequent 
experience with its use could show that the recommended frequency 
should be adjusted.
    Assuming adequate support in the District Staff Report, the 
District could waive the reverification of the Liquid Removal Rate 
Test, if the District specifies in the rule the procedure for 
determining where it could be waived.
    See Response to BAAQMD Comment II for additional comments regarding 
flexibility of reverification test frequencies.

III. EPA Action

    Comments submitted by the BAAQMD and SJVUAPCD changed our 
recommendations on how to revise the rules but did not change our 
proposed action on the rules. Therefore, as authorized in sections 
110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited approval 
of the submitted rules. This action incorporates the submitted rules 
into the California SIP, including those provisions identified as 
deficient. As authorized under section 110(k)(3), EPA is simultaneously 
finalizing a limited disapproval of the submitted rules. As a result, 
sanctions will be imposed on the BAAQMD, SMAQMD, and SJVUAPCD unless 
EPA approves subsequent SIP revisions that correct the rule 
deficiencies within 18 months of the effective date of this action. 
These sanctions will be imposed under section 179 of the CAA as 
described in 59 FR 39832 (August 4, 1994). In addition, EPA must 
promulgate a federal implementation plan (FIP) under section 110(c) 
unless we approve subsequent SIP revisions that correct the rule 
deficiencies within 24 months. Sanctions will not be imposed on LCAQMD 
and MBUAPCD, because they are an ozone attainment area and maintenance 
attainment area, respectively. Note that the submitted rules have been 
adopted by BAAQMD, LCAQMD, MBUAPCD, SMAQMD, and SJVUAPCD, and EPA's 
final limited disapproval does not prevent the local agency from 
enforcing them.

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.

[[Page 38564]]

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.
    This final 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 act on 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.
    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.
    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 September 24, 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: June 8, 2001.
Keith Takata,
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 52.220 is amended by adding paragraphs 
(c)(255)(i)(A)(5), (c)(255)(i)(D)(2), (c)(264)(i)(D)(1), 
(c)(273)(i)(A)(2), and (c)(277)(i)(C)(6) to read as follows:

[[Page 38565]]

Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (255) * * *
    (i) * * *
    (A) * * *
    (5) Rule 449, adopted on April 3, 1997.
    (D) * * *
    (2) Section (Rule) 439.5, adopted on July 15, 1997.
* * * * *
    (264) * * *
    (i) * * *
    (D) Monterey Bay Unified Air Pollution Control District.
    (1) Rule 1002, adopted on April 21, 1999.
* * * * *
    (273) * * *
    (i) * * *
    (A) * * *
    (2) Rule 4622, adopted on June 18, 1998.
* * * * *
    (277) * * *
    (i) * * *
    (C) * * *
    (6) Rule 8-7, adopted on November 17, 1999.
* * * * *
[FR Doc. 01-18411 Filed 7-24-01; 8:45 am]
BILLING CODE 6560-50-P