[Federal Register Volume 69, Number 116 (Thursday, June 17, 2004)]
[Rules and Regulations]
[Pages 33860-33862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13682]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-OAR-2003-FL-0001-200414(f); FRL-7773-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing approval of revisions to the 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. This final rule addresses 
comments submitted in response to EPA's direct final rule published 
previously for this action.

DATES: Effective Date: This rule will be effective July 19, 2004.

ADDRESSES: Copies of documents relevant to this action are available 
for

[[Page 33861]]

public inspection during normal business hours at: 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. Or, by going to the 
Regional Material in EDocket index at http://docket.epa.gov/rmepub/ and 
doing a quick search on ``R04-0AR-2003-FL-0001.''

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. Background

    On April 6, 2004, EPA simultaneously published a proposed rule (69 
FR 18006) and a direct final rule (69 FR 17929) to approve a department 
order granting a variance from Rule 62-252.400 to the Broward County 
Aviation Department. The 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.
    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 statue 
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 received an adverse comment during the 30-day comment period 
and therefore withdrew the direct final rule on April 28, 2004 (69 FR 
23109).

II. Today's Action

    In this final rulemaking, EPA is responding to the adverse comment, 
and granting final approval to a department order granting a variance 
from Rule 62-252.400 to the Broward County Aviation Department.

III. Comment and Response

    EPA received one adverse comment submitted by a citizen. A summary 
of the adverse comment and EPA's response is provided below.
    Comment: The commenter asserted that we should not fall over 
backwards in letting aviation industry emit more and more pollution, 
and that we need to scrutinize carefully and very closely what we allow 
this industry to do to our air, water and soil. The commenter saw no 
proof in the proposed SIP approval that these rental cars will be 
equipped with ORVR controls having 95% control efficiency. The 
commenter stated that there must be a document in the record proving 
that this agency owns and uses 100% of these cars and proof that all of 
these cars capture 95% and meet the standards.''
    Response: EPA believes that this 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 of regulations under section 202(a)(6) of the Clean 
Air Act for ORVR systems. States were required to adopt Stage II rules 
for all areas classified as ``moderate'' or worse 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]* * *'' 
ORVR regulations were promulgated by EPA on April 6, 1994, (see 59 FR 
16262, 40 CFR 86.001 and 40 CFR 86.098) and the requirements of these 
regulations are currently being phased-in. As a result the Clean Air 
Act no longer requires moderate areas to impose stage II controls under 
section 182(b)(3), and such areas may seek SIP revisions to remove such 
requirements from their SIPs, subject to section 110(l) of the Act.
    In this circumstance, EPA does not 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, subject to 
section 110(l), and as such, the State can provide this variance for 
the consolidated rental car facility. The area is attainment for the 8-
hour ozone National Ambient Air Quality Standard, so EPA is able to 
approve this SIP revision.

IV. Final Action

    EPA is granting final approval to the revisions to the Florida SIP 
described above because they are consistent with EPA guidance and the 
CAA, as amended in 1990.

V. 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 (Public Law 104-4).

[[Page 33862]]

    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), 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 August 16, 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: June 3, 2004.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.


0
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
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           Name of source                 Permit number        State effective date           EPA approval date                    Explanation
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                                                                      * * * * * * *
Broward County Aviation Department.  .......................  August 15, 2003.......  June 17, 2004 [Insert citation    Order Granting Variance from
                                                                                       of publication].                  Rule 62-252.400.
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[FR Doc. 04-13682 Filed 6-16-04; 8:45 am]
BILLING CODE 6560-50-P