[Federal Register Volume 65, Number 220 (Tuesday, November 14, 2000)]
[Proposed Rules]
[Pages 68111-68114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29064]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 226-0240; FRL-6897-2]


Disapproval of Implementations Plans; Revision to the California 
State Implementation Plan, Antelope Valley Air Pollution Control 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a revision to the Antelope 
Valley Air Pollution Control District (AVAPCD) portion of the 
California State Implementation Plan (SIP). This revision concerns 
volatile organic compound (VOC) emissions from the transfer of gasoline 
to storage tanks or to vehicle fuel tanks. We are proposing action on a 
local rule that regulates these emission sources under the Clean Air 
Act as amended in 1990 (CAA or the Act). We are taking comments on this 
proposal and plan to follow with a final action.

DATES: Any comments must arrive by December 14, 2000.

ADDRESSES: Mail comments to Andy Steckel, Rulemaking Office Chief (AIR-
4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105.
    You can inspect copies of the submitted rule revisions and EPA's 
technical support document (TSD) at our Region IX office during normal 
business hours. You may also see copies of the submitted rule revisions 
at the following locations:
    California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
    Antelope Valley Air Pollution Control District, 43301 Division 
Street, Suite 206, (P.O. Box 4038), Lancaster, CA 93539.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), U.S. Environmental Protection Agency, Region IX, (415) 744-1135.

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

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What are the changes in the submitted rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA recommendations to further improve the rule
    E. Proposed action and public comment
III. Background information
    A. Why was this rule submitted?
IV. Administrative Requirements

I. The State's Submittal

A. What Rule Did the State Submit?

    Table 1 lists the rule addressed by this proposal with the dates 
that it was adopted by the local air agency and submitted by the 
California Air Resources Board (CARB).

[[Page 68112]]



                                            Table 1.--Submitted Rule
----------------------------------------------------------------------------------------------------------------
              Local Agency                 Rule No.               Rule Title              Adopted     Submitted
----------------------------------------------------------------------------------------------------------------
Antelope Valley APCD...................          461   Gasoline Transfer and               09/15/98     05/13/99
                                                        Dispensing.
----------------------------------------------------------------------------------------------------------------

    On June 10, 1999, this rule submittal was found to meet the 
completeness criteria in 40 CFR Part 51 Appendix V, which must be met 
before formal EPA review.

B. Are There Other Versions of This Rule?

    We approved a version of AVAPCD Rule 461 into the SIP on October 6, 
1996 (61 FR 52297). There are no other submittals on which we have not 
acted.

C. What Are the Changes in the Submitted Rule?

    The changes are as follows:
    <bullet> Section (c)(5) of the SIP rule, along with the related 
attachments (C) and (D), is deleted. This section and the attachments 
concern the Self-Compliance Program (SCP), which requires daily 
inspection to ensure proper operating conditions of all components of 
the vapor recovery systems and annual inspections to verify compliance 
with applicable rules and regulations.
    <bullet> Section (c)(6) of the SIP rule is deleted. This section 
concerns the training by a District-approved program of a person to 
perform the inspections and maintenance required in section (c)(5).
    <bullet> Section (e)(3) of the submitted rule extends the exemption 
from the rule for mobile fuellers until 12 months after CARB certifies 
vapor recovery equipment for mobile fuellers.
    The TSD has more information about this rule.

II. EPA's Evaluation and Action

A. How is EPA Evaluating the Rule?

    Generally, SIP rules must be enforceable (see section 110(a) of the 
Act), must require Reasonably Available Control Technology (RACT) for 
major sources in nonattainment areas (see section 182(a)(2)(A)), and 
must not relax existing requirements (see sections 110(l) and 193). The 
AVAPCD regulates a severe ozone nonattainment area (see 40 CFR 81), so 
AVAPCD Rule 461 must meet the requirements of RACT.
    Guidance and policy documents that we used to define specific 
enforceability and RACT requirements include the following:
    <bullet> Portions of the proposed post-1987 ozone and carbon 
monoxide policy that concern RACT, 52 FR 45044 (November 24, 1987).
    <bullet> Model Volatile Organic Compound Rule for Reasonably 
Available Control Technology (RACT),'' Office of Air Quality Planning 
and Standards (June 1992).
    <bullet> Issues Relating to VOC Regulation Cutpoints, Deficiencies, 
and Deviations, Clarification to Appendix D (The Blue Book), 52 FR 
45105 (November 24, 1987).
    For the purpose of assisting state and local agencies in developing 
RACT rules for nonattainment areas, EPA prepared a series of Control 
Technique Guideline (CTG) documents which specify the minimum 
requirements that a rule must contain in order to be approved into the 
SIP. The CTGs are based on the underlying requirements of the Act and 
specify the presumptive norms for what is RACT for specific source 
categories. Under the CAA, Congress ratified EPA's use of these 
documents, as well as other Agency policy, for requiring States to 
``fix-up'' their RACT rules. See section 182(a)(2)(A). There is no 
applicable CTG for transfer of gasoline into vehicle fuel tanks. 
However, EPA issued the following for gasoline vapor recovery guidance:
    <bullet> Draft Model Rule, Gasoline Dispensing facility--Stage II 
Vapor Recovery, (August 17, 1992).
    In evaluating RACT, EPA also considered information published since 
the 1992 Draft Model Rule, including documents associated with 
development of CARB's Enhanced Vapor Recovery Guidelines (March 23, 
2000) and South Coast Air Quality Management District's Draft Rule 461, 
Gasoline Transfer and Dispensing (December 15, 1999). EPA, Region IX, 
has summarized RACT requirements in the Draft Gasoline Vapor Recovery 
Guidelines (April 24, 2000). In general, these guidance documents have 
been set forth to ensure that VOC rules are fully enforceable, meet the 
requirements of RACT, and maintain or strengthen the SIP.

B. Does the Rule Meet the Evaluation Criteria?

    This rule is not consistent with the relevant policy and guidance 
regarding enforceability, RACT, and SIP relaxations. Rule provisions 
which do not meet the evaluation criteria are summarized below and 
discussed further in the TSD.

C. What are the Rule Deficiencies?

    These provisions conflict with section 110 and part D of the CAA 
and prevent full approval of the SIP revision:
    <bullet> The enforceablility is limited, because paragraph 
(c)(3)(B) references AVAPCD Rule 430. The reference must be removed, 
because AVAPCD Rule 430 is not in the SIP and is not appropriate as a 
SIP rule.
    <bullet> The change of removing the required daily and annual 
inspections of the SCP without replacement provisions is a SIP 
relaxation. This change is claimed by AVAPCD to be justified because 
the program is ineffective and is overly burdensome to the industry, 
citing studies conducted by the South Coast Air Quality Management 
District (SCAQMD), which developed the SCP. In 1996 and 1997 SCAQMD 
conducted reverification of original compliance tests that revealed a 
high rate of non-compliance in vapor recovery equipment. AVAPCDs 
conclusion from these tests was that the SCP is ineffective in reducing 
excess emissions of VOC. Although EPA concurs that there are high non-
compliance rates for vapor recovery equipment, we believe that this 
fact justifies an increased emphasis in an inspection program, and that 
removal of the SCP requirement will increase VOC emissions. Therefore, 
removal of the SCP without a replacement program is a SIP relaxation 
and does not meet the requirements of section 110(l) of the CAA or of 
RACT.
    EPA requires a reasonably available replacement to the inspections 
of the SCP. EPA recommends that the inspection program contain the 
following features:
    <bullet> Require that reverification of the performance tests 
originally required by the CARB Executive Order be performed once every 
six months or, for gasoline dispensing facilities with In-Station 
Diagnostics, once every two years.
    <bullet> Require that a written inspection be performed once every 
week for vapor recovery equipment defects listed in AVAPCD Rule 461, 
attachment A, or in California Code of Regulations (CCR), title 17, 
section 94006.
    The removal of the District-approved training program for 
inspection and maintenance of vapor recovery equipment program is not 
inherently a SIP relaxation that leads to an increase in emissions. 
Gasoline dispensing

[[Page 68113]]

equipment owners must still comply with all provisions of the rule and 
they would still have to provide sufficient non-District-approved 
training in the inspection and operation of vapor recovery equipment in 
order to do so. Furthermore, vapor recovery equipment is complex and is 
usually maintained by outside contractors, who must provide their own 
training in maintenance of the equipment. Therefore, EPA has determined 
that removal of the District-approved training requirement from the 
rule does not violate section 110(l) of the CAA.

D. EPA Recommendations to Further Improve the Rule.

    The TSD describes additional rule revisions that do not affect 
EPA's current action but are recommended for consideration the next 
time the local agency modifies the rule.

E. Proposed Action and Public Comment.

    As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is 
proposing a disapproval of the submitted rule. If finalized, this 
action would retain the present SIP rule, which fulfills RACT 
requirements, in the SIP. No sanctions under section 179 or federal 
implementation plan (FIP) requirement under section 110(c) of the CAA 
are associated with this action.
    We will accept comments from the public on the proposed disapproval 
for the next 30 days.

III. Background Information

A. Why Were These Rules Submitted?

    VOCs help produce ground-level ozone and smog, which harm human 
health and the environment. Section 110(a) of the CAA requires states 
to submit regulations that control VOC emissions. Table 2 lists some of 
the national milestones leading to the submittal of these local agency 
VOC rules.

                                    Table 1.--Ozone Nonattainment Milestones
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                          Date                                                    Event
----------------------------------------------------------------------------------------------------------------
March 3, 1978..........................................  EPA promulgated a list of ozone nonattainment areas
                                                          under the Clean Air Act as amended in 1977. 43 FR
                                                          8964; 40 CFR 81.305.
May 26, 1988...........................................  EPA notified Governors that parts of their SIPs were
                                                          inadequate to attain and maintain the ozone standard
                                                          and requested that they correct the deficiencies
                                                          (EPA's SIP-Call). See section 110(a)(2)(H) of the pre-
                                                          amended Act.
November 15, 1990......................................  Clean Air Act Amendments of 1990 were enacted. Pub. L.
                                                          101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-
                                                          7671q.
May 15, 1991...........................................  Section 182(a)(2)(A) requires that ozone nonattainment
                                                          areas correct deficient RACT rules by this date.
----------------------------------------------------------------------------------------------------------------

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, Regulatory 
Planning and Review.

B. 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 E.O. 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 E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

C. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB in a separately identified section of the preamble 
to the rule, a description of the extent of EPA's prior consultation 
with representatives of affected tribal governments, a summary of the 
nature of their concerns, and a statement supporting the need to issue 
the regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of E.O. 13084 do not apply to this proposed rule.

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. E.O. 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 E.O. 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

[[Page 68114]]

process of developing the proposed regulation.
    This proposed 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 E.O. 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 
proposed rule.

E. 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 proposed rule will not have a significant impact on a 
substantial number of small entities because SIP actions 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 action 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 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).

F. 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 
annual 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 proposed action does not include a 
Federal mandate that may result in estimated annual costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This proposed 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.

G. 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 proposed action 
because it does not require the public to perform activities conducive 
to the use of VCS.

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.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 20, 2000.
Felicia Marcus,
Regional Administrator, Region IX.
[FR Doc. 00-29064 Filed 11-13-00; 8:45 am]
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