[Federal Register Volume 87, Number 65 (Tuesday, April 5, 2022)]
[Rules and Regulations]
[Pages 19631-19635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07106]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0410; FRL-8791-02-R9]


Air Plan Limited Approval and Limited Disapproval; California; 
Air Resources Board; Volatile Organic Compounds

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a 
limited approval and limited disapproval of a revision to the 
California Air Resources Board (CARB) portion of the California State 
Implementation Plan (SIP). These revision concerns emissions of 
volatile organic compounds (VOCs) from vapor recovery systems of 
gasoline cargo tanks. Under the authority of the Clean Air Act (CAA or 
the Act), this action

[[Page 19632]]

simultaneously approves the rescission of a different statewide rule 
from the California SIP that previously regulated this emission source.

DATES: This rule is effective May 5, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R09-OAR-2021-0410. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If you need assistance 
in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: La Kenya Evans, EPA Region IX, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 or by 
email at [email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On October 21, 2021 (86 FR 58627), the EPA proposed a limited 
approval and limited disapproval of the following SIP revisions, that 
were submitted on August 22, 2018, for incorporation into the 
California SIP.

                                        Table 1--Submitted SIP Revisions
----------------------------------------------------------------------------------------------------------------
                                  Regulation title or     Date of local
     Regulation or provision            subject               action               State requested action
----------------------------------------------------------------------------------------------------------------
California Code of Regulations,   Certification of     Adopted on 07/25/13  Addition to the SIP.
 Title 17, Division 3, Chapter     Vapor Recovery
 1, Subchapter 8, Article 1,       Systems for Cargo
 Section 94014.                    Tanks.
Certification Procedure CP-204..  Certification        Referenced in        Addition to the SIP.
                                   Procedure for        Section 94014 and
                                   Vapor Recovery       adopted on 11/7/
                                   Systems of Cargo     2014.
                                   Tanks.
Test Procedure TP-204.1.........  Determination of     Referenced in        Addition to the SIP.
                                   Five Minute Static   Section 94014 and
                                   Pressure             adopted on 11/7/
                                   Performance of       2014.
                                   Vapor Recovery
                                   Systems of Cargo
                                   Tanks.
Test Procedure TP-204.2.........  Determination of     Referenced in        Addition to the SIP.
                                   One Minute Static    Section 94014 and
                                   Pressure             adopted on 05/27/
                                   Performance of       2014.
                                   Vapor Recovery
                                   Systems of Cargo
                                   Tanks.
Test Procedure TP-204.3.........  Determination of     Referenced in        Addition to the SIP.
                                   Leak(s).             Section 94014 and
                                                        adopted on 11/7/
                                                        2014.
California Code of Regulations,   Certification of     Repealed on 06/29/   Rescission from the SIP.
 Title 17, Division 3, Chapter     Vapor Recovery       1995.
 1, Subchapter 8, Article 1,       Systems--Gasoline
 Section 94004.                    Delivery Tanks.
Method 2-5......................  Certification and    Referenced in        Rescission from the SIP.
                                   Test Procedures      Section 94004 and
                                   for Vapor Recovery   effective on 09/1/
                                   Systems of           1982.
                                   Gasoline Delivery
                                   Tanks.
----------------------------------------------------------------------------------------------------------------

    We proposed a limited approval because we determined that these 
revisions 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 of the Act. 
These provisions include the following:

    1. Executive Officer discretion in California Code of 
Regulations, Title 17, Division 3, Chapter 1, Subchapter 8, Article 
1, Section 94014, CP-204 Section 5.4 and incorporated by reference 
in TP-204.1, TP-204.2, and TP-204.3.

    Our proposed action contains more information on the basis for this 
rulemaking and on our evaluation of the submittal.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During the comment period we received two anonymous comments in support 
of EPA's October 21, 2021 proposed rule to limit VOC emissions and 
protect the environment. We acknowledge the comments, and we are 
approving the regulations that pertain to vapor emissions into the SIP. 
EPA received one comment from Silvio Mazzella Jr. providing additional 
reference materials. We acknowledge the additional information noted by 
the commenter.
    We also received one comment from Isabelle Nield, which we respond 
to below.
    Comment: The commenter's primary concern is that ``[d]ue to the 
proposed rule's lack of compliance with the Clean Air Act . . . the 
rule should [not] be incorporated into the SIP in its current state.'' 
They recommend instead that ``the proposed rule should be revised to 
address the deficiencies, then approved.'' Aside from this issue, the 
commenter notes the value of the proposed SIP revision for air quality 
in a range of areas, including reduction in outdoor VOCs and interstate 
emissions exchange from gasoline regulation.
    EPA's Response: We understand the commenter to assert that the 
Executive Officer discretion issue that represents the basis for our 
limited disapproval of California Code of Regulations, Title 17, 
Section 94014 is significant enough to warrant not approving the entire 
rule into the SIP until the issue is corrected. We disagree.

[[Page 19633]]

    As we noted in our October 21, 2021 proposed rule, a comparison of 
the revised Section 94014 as a whole with the current SIP-approved 
version, which was last approved on July 8, 1982, indicates substantial 
changes to the rule that improve the clarity, specificity, and 
stringency of the current SIP-approved rule. Additionally, the minor 
deficiencies the EPA identified in the SIP revision will not result in 
any degredation in California's air quality with respect to VOCs. As 
noted in the Technical Support Document found in the docket for our 
proposed action, at the time of the rule's submittal, CARB had never 
approved any of the equivalent test methods to Technical Procedure 
(TP)-204.1, TP-204.2 or TP-204.3 that are the subject of the limited 
disapproval in the nearly forty years of the rule's enforcement.\1\ As 
a result, a limited approval of this rule will strengthen the SIP and 
allow the EPA to enforce VOC emissions from cargo tanks with 
requirements that are more stringent than the rule that is currently in 
the SIP.
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    \1\ EPA TSD p. 14, Docket ID: EPA-R09-OAR-2021-0410-0024.
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    As discussed in our proposed action, documents submitted for 
inclusion into the SIP should not include unbounded director's 
discretion that allows the State to approve alternatives to the 
applicable SIP without following the SIP revision process described in 
CAA section 110. California Code of Regulations, Title 17, Section 
94014, CP-204, Section 5.4, allows the Executive Officer to approve an 
alternative test procedure in certain situations where EPA Method 301 
is not applicable, without approval from the EPA. This authority is 
then incorporated by reference in TP-204.1, TP-204.2, and TP-204.3. 
Without further specificity, these provisions represent unbounded 
director's discretion and constitute a SIP deficiency.
    CAA sections 110(k)(3) and 301(a) provide the EPA with the 
authority to issue a limited approval and limited disapproval action 
that will strengthen the SIP and require the state to correct for the 
above SIP deficiency, and the commenter has not provided any 
information or supplemental evidence that would indicate this action is 
contrary to CAA requirements. Therefore, the EPA will proceed with the 
limited approval and limited disapproval of this rule as proposed.

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, the EPA is finalizing a 
limited approval of the submitted rule. This action incorporates the 
submitted rule and referenced test procedures into the California SIP, 
including those provisions identified as deficient. As authorized under 
section 110(k)(3) and 301(a), the EPA is simultaneously finalizing a 
limited disapproval of California Code of Regulations, Title 17, 
Division 3, Chapter 1, Subchapter 8, Article 1, Section 94014.
    As a result, the 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. In addition, the 
offset sanction in CAA section 179(b)(2) will be imposed 18 months 
after the effective date of this action, and the highway funding 
sanction in CAA section 179(b)(1) six months after the offset sanction 
is imposed. A sanction will not be imposed if the EPA determines that a 
subsequent SIP submission from the State corrects the identified 
deficiencies before the applicable deadline.
    Note that the submitted rules have been adopted by CARB, and the 
EPA's final limited disapproval does not prevent CARB from enforcing 
them. The limited disapproval also does not prevent any portion of the 
rules from being incorporated by reference into the federally 
enforceable SIP as discussed in a July 9, 1992 EPA memo found at: 
https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. The EPA is also finalizing deletion of 
rules that were previously incorporated by reference from the 
applicable California SIP. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of Section 
94014 and the associated certification procedure and test procedures as 
described in Table 1 of this preamble, and finalizing the removal of 
Section 94004 and Method 2-5 also as described in Table 1 from the SIP. 
The EPA has made, and will continue to make, these documents available 
through www.regulations.gov and at the EPA Region IX Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP is not approved to apply on any 
Indian reservation land or in any other area where the EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction, and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law.

[[Page 19634]]

Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. 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 June 6, 2022. 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: March 30, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 52.220a, paragraph (c) is amended
0
a. In Table 1 by:
0
i. Removing the entry for ``94004''; and
0
ii. Adding an entry titled ``Title 17 (Public Health), Division 3 (Air 
Resources), Chapter 1 (Air Resources Board); Subchapter 8 (Compliance 
with Nonvehicular Emissions Standards); Article 1 (Vapor Recovery 
Systems in Gasoline Marketing Operations)'' after the entry for 
``94003'', and under the added heading, add an entry for ``94014''; and
0
b. In Table 2 by:
0
i. Adding entries for ``Certification Procedure CP-204'', ``Test 
Procedure TP-204.1'' ``Test Procedure TP-204.2'', and ``Test Procedure 
TP-204.3'', after the entry for ``Method 2-4: Certification and Test 
Procedures for Vapor Recovery Systems at Gasoline Terminals''; and
0
ii. Removing the entry for ``Method 2-5: Certification and Test 
Procedures for Vapor Recovery Systems of Gasoline Delivery Tanks''.
    The additions read as follows:


Sec.  52.220a  Identification of plan-in part.

* * * * *
    (c) * * *

                            Table 1--EPA-Approved Statutes and State Regulations \1\
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                                                        State                                    Additional
      State citation            Title/subject      effective date     EPA approval date         explanation
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                                                  * * * * * * *
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 Title 17 (Public Health), Division 3 (Air Resources), Chapter 1 (Air Resources Board); Subchapter 8 (Compliance
   with Nonvehicular Emissions Standards); Article 1 (Vapor Recovery Systems in Gasoline Marketing Operations)
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94014....................  Certification of Vapor        4/1/2015  [INSERT Federal         Submitted on August
                            Recovery Systems for                    Register CITATION], 4/  22, 2018 as an
                            Cargo Tanks.                            5/2022.                 attachment to a
                                                                                            letter dated August
                                                                                            16, 2018.
 
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\1\ Table 1 lists EPA-approved California statutes and regulations incorporated by reference in the applicable
  SIP. Table 2 of paragraph (c) lists approved California test procedures, test methods and specifications that
  are cited in certain regulations listed in Table 1. Approved California statutes that are nonregulatory or
  quasi-regulatory are listed in paragraph (e).


[[Page 19635]]

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               Table 2--EPA-Approved California Test Procedures, Test Methods, and Specifications
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                                               State
              Title/subject               effective date       EPA approval date        Additional explanation
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                                                  * * * * * * *
Certification Procedure CP-204                  4/1/2015  [INSERT Federal Register    Submitted on August 22,
 Certification Procedure for Vapor                         CITATION], 4/5/2022.        2018 as an attachment to
 Recovery Systems of Cargo Tanks.                                                      a letter dated August 16,
                                                                                       2018.
Test Procedure TP-204.1 Determination of        4/1/2015  [INSERT Federal Register    Submitted on August 22,
 Five Minute Static Pressure Performance                   CITATION], 4/5/2022.        2018 as an attachment to
 of Vapor Recovery Systems of Cargo                                                    a letter dated August 16,
 Tanks.                                                                                2018.
Test Procedure TP-204.2 Determination of        4/1/2015  [INSERT Federal Register    Submitted on August 22,
 One Minute Static Pressure Performance                    CITATION], 4/5/2022.        2018 as an attachment to
 of Vapor Recovery Systems of Cargo                                                    a letter dated August 16,
 Tanks.                                                                                2018.
Test Procedure TP-204.3 Determination of        4/1/2015  [INSERT Federal Register    Submitted on August 22,
 Leak(s).                                                  CITATION], 4/5/2022.        2018 as an attachment to
                                                                                       a letter dated August 16,
                                                                                       2018.
 
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[FR Doc. 2022-07106 Filed 4-4-22; 8:45 am]
BILLING CODE 6560-50-P