[Federal Register Volume 67, Number 209 (Tuesday, October 29, 2002)]
[Rules and Regulations]
[Pages 65873-65876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27343]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 242-0367; FRL-7396-3]


Revisions to the California State Implementation Plan, Imperial 
County Air Pollution Control District, Ventura County Air Pollution 
Control District, and Santa Barbara County Air Pollution Control 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the Imperial County Air Pollution Control District 
(ICAPCD) and Ventura County Air Pollution Control District (VCAPCD) 
portions of the California State Implementation Plan (SIP). This action 
was proposed in the Federal Register on April 25, 2002 and concerns 
volatile organic compound (VOC) emissions from gasoline dispensing 
facilities. Under authority of the Clean Air Act as amended in 1990 
(CAA or the Act), this action simultaneously approves local rules that 
regulate this emission source and directs California to correct rule 
deficiencies.
    EPA is also finalizing the full approval of a revision to the Santa 
Barbara County Air Pollution Control District portion of the California 
SIP regarding organic liquid cargo vessels.

EFFECTIVE DATE: This rule is effective on November 29, 2002.

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:

Air and Radiation Docket and Information Center (6102T), U.S. 
Environmental
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., 
Washington, DC 20460.
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814.
Imperial County Air Pollution Control District, 150 South 9th 
Street, El Centro, CA 92243.
Ventura County Air Pollution Control District, 669 County Square 
Drive, Ventura, CA 93003.
Santa Barbara County Air Pollution Control District, 26 Castilian 
Drive, Suite B-23, Goleta, CA 93117.

    A copy of the rules 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 website and may not contain the same version of the rules 
that were submitted to EPA.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX; (415) 947-4118.

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

I. Proposed Action

    On April 25, 2002 (67 FR 20478), we proposed a limited approval and 
limited disapproval of the following rules that were submitted for 
incorporation into the California SIP by the California Air Resources 
Board (CARB).

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
                                          Rule                  Rule title              Revised     Submitted
----------------------------------------------------------------------------------------------------------------
ICAPCD..................................          415  Transfer and Storage of             09/14/99     05/26/00
                                                        Gasoline.
VCAPCD..................................           70  Storage and Transfer of             11/14/00     05/08/01
                                                        Gasoline.
----------------------------------------------------------------------------------------------------------------

     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 CAA. 
Our proposed action contains more information on the rules and our 
evaluation.
    On April 25, 2002 (67 FR 20478), we also proposed a full approval 
of the following rule that was submitted for incorporation into the 
California SIP.

[[Page 65874]]



                                            Table 2.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
                                          Rule                  Rule Title              Revised     Submitted
----------------------------------------------------------------------------------------------------------------
SBCAPCD.................................          346  Loading of Organic Liquid Cargo     01/18/01     05/08/01
                                                        Vessels.
----------------------------------------------------------------------------------------------------------------

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.
    1. Richard H. Baldwin, Ventura County Air Pollution Control 
District, letter dated May 28, 2002 and received May 28, 2002. The 
comments and our responses are summarized below.
    Comment 1: EPA's proposed rulemaking states that Rule 70 is 
deficient because, ``Reverification of the performance tests of the 
vapor recovery system * * * should be performed more frequently * * * 
in order to fulfill RACT.'' For a variety of reasons, the commenter 
believes that this deficiency is more stringent than that required by 
RACT.
    Response 1: RACT generally refers largely to direct emission 
control requirements such as emission limits. Monitoring, reporting, 
recordkeeping, and similar requirements designed to ensure compliance 
with control requirements are sometimes also referred to as components 
of RACT, but often considered simply enforceability elements necessary 
to fulfill the general CAA 110(a)(2) enforceability requirement. We 
agree with the commenter that the control requirements in Rule 70 meet 
or exceed RACT. However, we should have identified the rule deficiency 
more clearly as an enforceability issue because, as described in our 
proposal action and associated TSD, we believe the existing performance 
test requirements do not adequately ensure continued compliance with 
the control requirements.
    Comment 2: South Coast AQMD is the only California District that 
currently contains reverification of performance test requirements 
sufficient to address EPA's proposed limited disapproval. EPA should 
not define RACT based on the single most stringent adopted rule.
    Response 2: EPA is not using the more stringent South Coast 
requirements as the primary basis for disapproving Rule 70. Rather, as 
discussed in our proposed action, we are relying on the research, 
performed by the California Air Pollution Control Officer's Association 
(CAPCOA), CARB, and others, which shows that existing Rule 70 
reverification of performance test requirements do not adequately 
ensure compliance with the rule's control requirements. See also 
Response 1.
    Comment 3: EPA should approve the submitted version of Rule 70 as 
meeting RACT requirements.
    Response 3: We concur that Rule 70 meets or exceeds the RACT 
control requirements. We do not believe, however, that the 
reverification of performance test requirements adequately fulfill 
section 110(a)(2) enforceability requirements. See also Response 1.
    Comment 4: EPA Region IX's guidelines for evaluating vapor recovery 
rules are inappropriately more stringent in California than in other 
states.
    Response 4: The guidelines distinguish requirements in California 
from requirements in other states because of the unique role that CARB 
plays in regulating vapor recovery. We believe, however, that the 
substance of our guidelines is the same for California and other 
states.
    Comment 5: The rule improvement identified by EPA is not relied 
upon in Ventura's approved attainment demonstration.
    Response 5: Improved reverification of performance test 
requirements are not intended to directly yield emission reductions 
that would be incorporated in an attainment demonstration. They are 
intended to assure that control requirements contained in Rule 70, 
which are relied on in Ventura's attainment demonstration, are in fact 
achieved.
    Comment 6: RACT should be determined on a national, not a regional 
basis.
    Response 6: Reasonably available controls can vary somewhat based 
on local economic and other factors. See also Response 1.

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 CAA, EPA is finalizing a limited 
approval of VCAPCD Rule 70. This action incorporates the submitted rule 
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 VCAPCD Rule 70. As a result, 
sanctions will be imposed 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 Act 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.
    As authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is 
finalizing a limited approval of ICAPCD Rule 415. This action 
incorporates the submitted rule 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 
ICAPCD Rule 415. No sanctions are associated with this action because 
this is not a required submittal.
    Note that the submitted rules have been adopted by the VCAPCD and 
ICAPCD, and EPA's final limited disapproval does not prevent the local 
agencies from enforcing them.
    As authorized in sections 110(k)(3) of the CAA, EPA is finalizing a 
full approval of SBCAPCD Rule 346. This action incorporates the 
submitted rule into the California SIP.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13211

    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.

C. 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 Executive Order 12866, and (2) concerns 
an

[[Page 65875]]

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.

D. 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. 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 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.

E. 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.

F. 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).

G. 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.

H. 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

[[Page 65876]]

does not require the public to perform activities conducive to the use 
of VCS.

I. 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).

J. 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 December 30, 2002. 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: October 1, 2002.
Laura Yoshii,
Deputy 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)(279)(i)(A)(9), (284)(i)(C)(2), and (284)(i)(D)(2) to read as 
follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (279) * * *
    (i) * * *
    (A) * * *
    (9) Rule 415, adopted on September 14, 1999.
* * * * *
    (284) * * *
    (i) * * *
    (C) * * *
    (2) Rule 346, adopted on January 18, 2001.
    (D) Ventura County Air Pollution Control District.
    (2) Rule 70, adopted on November 14, 2000.
* * * * *
[FR Doc. 02-27343 Filed 10-28-02; 8:45 am]
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