[Federal Register Volume 69, Number 66 (Tuesday, April 6, 2004)]
[Rules and Regulations]
[Pages 17929-17932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7645]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-0AR-2003-FL-0001-200414(a); FRL-7643-3]


Approval and Promulgation of Implementation Plans: Florida 
Broward County Aviation Department Variance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The EPA is approving revisions to State Implementation Plan 
(SIP) submitted by the State of Florida for the purpose of a department 
order granting a variance from Rule 62-252.400 to the Broward County 
Aviation Department. EPA believes that this proposed revision to the 
SIP is approvable based on the June 23, 1993, EPA policy memorandum 
entitled, Impact of the Recent Onboard Decision on Stage II 
Requirements in Moderate Nonattainment Areas which indicates that a 
Stage II program is not a mandatory requirement for areas classified 
``moderate'' or below, upon EPA's promulgation for On-board Refueling 
Vapor Recovery systems.

DATES: This direct final rule is effective June 7, 2004, without 
further notice, unless EPA receives adverse comment by May 6, 2004. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Comments may be submitted by mail to: Sean Lakeman, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Comments 
may also be submitted electronically, or through hand delivery/courier. 
Please follow the detailed instructions described in sections III.B.1. 
through 3. of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Analysis of State's Submittal

    Florida Administrative Code (F.A.C.) Rule 62-252.400, requires 
Stage II vapor recovery systems for all gasoline dispensing facilities 
located in Broward, Dade, and Palm Beach counties which commence 
construction or undertake a significant modification after November 15, 
1992, prior to dispensing 10,000 gallons or more in any one month. The 
purpose of the Stage II vapor recovery requirement in Rule 62-252.400, 
F.A.C. is to recover 95% by weight of vapors displaced from a vehicular 
fuel tank during refueling.
    Under Section 120.542, of the Florida Statutes, the department may 
grant a variance when the person subject to a rule demonstrates that 
the purpose of the underlying statute will be or has been achieved by 
other means, or when application of a rule would create a substantial 
hardship or violate principles of fairness.
    On April 22, 2003, Broward County Aviation Department submitted a 
petition for variance from the requirements of Rule 62-252.400, F.A.C. 
for a proposed consolidated rental car facility fueling area at the Ft. 
Lauderdale-Hollywood International Airport. The petitioner has 
estimated that 100% of the vehicles to be refueled at the consolidated 
rental car facility fueling area will be new vehicles equipped with on-
board refueling vapor recovery (ORVR) technologies. The design recovery 
efficiency of installed ORVR systems is 95%. Further, the petitioner 
estimates the cost of installation of Stage II vapor recovery will be 
$250,000 to $370,000 initially with additional cost for maintaining the 
system. Given the estimated 100% use of the onboard refueling vapor 
recovery technologies for all vehicles and the high cost of complying 
with rule 62-252.400 F.A.C., the department has determined that the 
health and environmental concerns addressed by the underlying statute 
will be met without Stage II vapor recovery systems. Therefore the 
department has issued an Order Granting Variance to Broward County 
Aviation Department, relieving the county from requirements of Rule 62-
252.400, F.A.C. Since this rule has previously been approved into 
Florida's SIP, the department is requesting approval of this variance 
as a revision to the SIP. EPA believes that this proposed revision to 
the SIP is approvable based on the June 23, 1993, EPA policy memorandum 
entitled, Impact of the Recent Onboard Decision on Stage II 
Requirements in Moderate Nonattainment Areas which indicates that a 
Stage II program is not a

[[Page 17930]]

mandatory requirement for areas classified ``moderate'' or below, upon 
EPA's promulgation for On-board Refueling Vapor Recovery systems. 
States were required to adopt Stage II rules for such areas under 
section 182(b)(3). However, 202(a)(6) states that ``the requirements of 
section 182(b)(3) (relating to Stage II gasoline vapor recovery) for 
areas classified under section 181 as moderate for ozone shall not 
apply after promulgation of such standards [i.e., onboard controls] * * 
*'' Section 202 On-board Refueling Vapor Recovery regulations were 
promulgated by EPA on April 6, 1994, and the requirements of these 
regulations are currently being phased-in.
    In this circumstance, EPA does believe that a determination of 
``widespread'' use is necessary to provide for the variance for Stage 
II requirements for this area or the facility in question. In 
accordance with the June 23, 1993, EPA policy memorandum, the State has 
the option to implement a Stage II program in this area, and as such, 
the State can provide this variance for the consolidated rental car 
facility.

II. Final Action

    EPA is approving the aforementioned changes to the State of Florida 
because they are consistent with the Clean Air Act and EPA policy. The 
EPA is publishing this rule without prior proposal because the Agency 
views this as a noncontroversial submittal and anticipates no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision should adverse 
comments be filed. This rule will be effective June 7, 2004, without 
further notice unless the Agency receives adverse comments by May 6, 
2004.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on June 7, 2004, and no 
further action will be taken on the proposed rule. Please note that if 
we receive adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, we may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

III. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under R04-0AR-2003-FL-0001. The official public file consists of the 
documents specifically referenced in this action, any public comments 
received, and other information related to this action. Although a part 
of the official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at the Regulatory Development Section, Air Planning Branch, 
Air, Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 9 to 3:30, excluding Federal 
holidays.
    2. Electronic Access. An electronic version of the public docket is 
available through EPA's Regional Material EDocket (RME) system, a part 
of EPA's electronic docket and comment system. You may access RME at 
http://docket.epa.gov/rmepub/index.jsp to review associated documents 
and submit comments. Once in the system, select ``quick search,'' then 
key in the appropriate RME Docket identification number.
    You may also access this Federal Register document electronically 
through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.
    3. Copies of the State submittal and EPA's technical support 
document are also available for public inspection during normal 
business hours, by appointment at the State Air Agency. Florida 
Department of Environmental Protection, Division of Air Resource 
Management, 2600 Blair Stone Road, MS 5500, Tallahassee, Florida 32399-
2400.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking R04-0AR-2003-FL-0001'' in the 
subject line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in Regional Material EDocket. If EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
EPA may not be able to consider your comment.
    i. Regional Material EDocket (RME). Your use of EPA's RME to submit

[[Page 17931]]

comments to EPA electronically is EPA's preferred method for receiving 
comments. Go directly to RME at http://docket.epa.gov/rmepub/index.jsp, 
and follow the online instructions for submitting comments. To access 
EPA's RME from the EPA Internet Home Page, select ``Information 
Sources,'' ``Dockets,'' ``EPA Dockets,'' ``Regional Material EDocket.'' 
Once in the system, select ``quick search,'' and then key in RME Docket 
ID No. R04-0AR-2003-FL-0001. The system is an ``anonymous access'' 
system, which means EPA will not know your identity, e-mail address, or 
other contact information unless you provide it in the body of your 
comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], please include the text ``Public comment on 
proposed rulemaking R04-0AR-2003-FL-0001.'' in the subject line. EPA's 
e-mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly without going through Regulations.gov, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then select 
Environmental Protection Agency at the top of the page and use the go 
button. The list of current EPA actions available for comment will be 
listed. Please follow the online instructions for submitting comments. 
The system is an ``anonymous access'' system, which means EPA will not 
know your identity, e-mail address, or other contact information unless 
you provide it in the body of your comment.
    iv. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the mailing address identified in section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Sean Lakeman, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please include the 
text ``Public comment on proposed rulemaking R04-0AR-2003-FL-0001'' in 
the subject line on the first page of your comment.
    3. Deliver your comments to: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division 12th floor, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 9:00 to 3:30, excluding Federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD-ROM, mark the outside of the 
disk or CD-ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action 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. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997),

[[Page 17932]]

because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. 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.).
    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).
    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 June 7, 2004. 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: March 24, 2004.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    Part 52 of chapter I, title 40, 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 (K)--Florida

0
2. Section 52.520 is amended by adding a new entry at the end of the 
table in paragraph (d) for ``Broward County Aviation Department'' to 
read as follows:


Sec.  52.520  Identification of plan.

* * * * *
    (d) * * *

                                EPA Approved Florida Source-Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                                     State
            Name of source                Permit   effective      EPA approval date            Explanation
                                          number      date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Broward County Aviation Department....  .........    8/15/03  4/6/04..................  Order Granting Variance
                                                              [Insert citation of        from Rule 62-252.400
                                                               publication].
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 04-7645 Filed 4-5-04; 8:45 am]
BILLING CODE 6560-50-P