[Federal Register Volume 69, Number 14 (Thursday, January 22, 2004)]
[Rules and Regulations]
[Pages 3012-3015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1232]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA264-0430; FRL-7607-5]


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: Final rule.

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SUMMARY: EPA is finalizing 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) portion of the California State Implementation Plan (SIP). 
This action was proposed in the Federal Register on April 25, 2003, and 
concerns volatile organic compound (VOC) emissions from industries 
storing, loading, and transfering organic liquids as part of their 
operations. Under authority of the Clean Air Act as amended in 1990 
(CAA or the Act), this action simultaneously approves these local rules 
that regulates these emission sources and directs California to correct 
rule deficiencies.

EFFECTIVE DATE: This rule is effective on February 23, 2004.

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

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901;
Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail 
Code 6102T), Washington, DC 20460;

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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, at 
either(415) 947-4111, or [email protected].

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

I. Proposed Action

    On April 25, 2003 (68 FR 20356), EPA proposed a limited approval 
and limited disapproval of the following rules that were submitted for 
incorporation into the California SIP.

                                            Table 1.--Submitted Rules
----------------------------------------------------------------------------------------------------------------
               Local agency                  Rule No.             Rule title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
SJVUAPCD..................................       4623  Storage of Organic Liquids.....     12/20/01     03/15/02
YSAQMD....................................       2.21  Organic Liquid Loading.........     06/12/02     08/06/02
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
rules improve the SIP and are largely consistent with the relevant CAA 
requirements. Simultaneously, we proposed a limited disapproval because 
some provisions within each rule conflict with section 110 and part D 
of the Act. These provisions are reviewed below.
    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 Rule 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.
    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of these submittals.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received no comments on our proposed action.

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 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 finalizing 
simultaneously a limited disapproval of each rule. As a result, 
sanctions will be imposed unless EPA approves subsequent SIP revisions 
that correct each rule's deficiencies within 18 months of the effective 
date of this action. These sanctions will be imposed under section 179 
of the Act according to 40 CFR 52.31. 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. Note SJVUAPCD Rule 4623 and YSAQMD Rule 2.21 have 
been adopted by these local air districts, and EPA's final limited 
disapproval does not prevent the local agency from enforcing it. Also, 
please note that the sanctions process for each of these rules is 
separate and distinct from the other; none of the language above should 
be construed otherwise.

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

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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 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 approves 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 approves 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

    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.

J. 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 February 23, 2004.

K. 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 March 22, 2004. Filing a 
petition for reconsideration by

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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: December 18, 2003.
Laura Yoshii,
Acting 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 52.220 is amended by adding paragraphs (c)(297)(i)(E)(2) and 
(c)(303)(i)(B)(2) to read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (297) * * *
    (i) * * *
    (E) * * *
    (2) Rule 4623, adopted on April 11, 1991 and amended on December 
20, 2001.
* * * * *
    (303) * * *
    (i) * * *
    (B) * * *
    (2) Rule 2.21, adopted on March 23, 1994 and amended on June 12, 
2002.
* * * * *
[FR Doc. 04-1232 Filed 1-21-04; 8:45 am]
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