[Federal Register Volume 65, Number 220 (Tuesday, November 14, 2000)]
[Proposed Rules]
[Pages 68114-68119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29065]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 210-0173; FRL-6897-1]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision, Lake County Air Quality Management 
District, Monterey Bay Unified Air Pollution Control District, Bay Area 
Air Quality Management District, Sacramento Metropolitan Air Quality 
Management District, San Joaquin Valley Unified Air Pollution Control 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval and limited disapproval of 
revisions to the California State Implementation Plan (SIP) which 
concern the control of volatile organic compound (VOC) emissions from 
the transfer of gasoline to storage tanks or to vehicle tanks. EPA is 
proposing a limited approval and limited disapproval without potential 
sanctions of Lake County Air Quality Management District (LCAQMD) 
Section (Rule) 439.5 and Monterey Bay Unified Air Pollution Control 
District (MBUAPCD) Rule 1002. EPA is also proposing a limited approval 
and limited disapproval with potential sanctions of Bay Area Air 
Quality Management District (BAAQMD) Rule 8-7, Sacramento Metropolitan 
Air Quality Management District (SMAQMD) Rule 449, and San Joaquin 
Valley Unified Air Pollution Control District (SJVUAPCD) Rule 4622. The 
intended effect of the limited approvals and limited disapprovals is to 
regulate emissions of VOCs in accordance with the requirements of the 
Clean Air Act, as amended in 1990 (CAA or the Act). EPA's final action 
on this proposed rule will incorporate these rules into the federally 
approved SIP.

DATES: Comments must be received in writing on or before December 14, 
2000.

ADDRESSES: Mail comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), Air Division, 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 documents (TSDs) at our Region IX office during 
normal business hours. You may also see copies of the submitted rule 
revisions at the following locations:

[[Page 68115]]

    California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
    Bay Area Air Quality Management District, 939 Ellis Street, San 
Francisco, CA 94105.
    Lake County Air Quality Management District, 883 Lakeport 
Boulevard, Lakeport, CA 95453.
    Monterey Bay Unified Air Pollution Control District, 24580 Silver 
Cloud Court, Monterey, CA 93940.
    Sacramento Metropolitan Air Quality Management District, 8411 
Jackson Road, Sacramento, CA 95826.
    San Joaquin Valley Unified Air Pollution Control District, 1990 
East Gettysburg Street, Fresno, CA 93726.

FOR FURTHER INFORMATION CONTACT: Al Petersen, Rulemaking Office (AIR-
4), Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, (415) 744-1135.

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being proposed for limited approval and limited 
disapproval into the California SIP are LCAQMD Section (Rule) 439.5, 
Retail Gasoline Service Stations, MBUAPCD Rule 1002, Transfer of 
Gasoline into Vehicle Fuel Tanks, BAAQMD Rule 8-7, Gasoline Dispensing 
Facilities; SMAQMD Rule 449, Transfer of Gasoline into Vehicle Fuel 
Tanks; and SJVUAPCD Rule 4622, Gasoline Transfer into Vehicle Fuel 
Tanks. These rules were submitted by the California Air Resources Board 
(CARB) to EPA on May 18, 1998, June 3, 1999, March 23, 2000, May 18, 
1998, and August 21, 1998, respectively.

II. Background

    On March 3, 1978, EPA promulgated a list of ozone nonattainment 
areas under the provisions of the 1977 Clean Air Act (1977 CAA or pre-
amended Act), that included the San Francisco Bay Area, Monterey Bay 
Area, Sacramento Metro Area, and the San Joaquin Valley Area. 43 FR 
8964; 40 CFR 81.305. On May 26, 1988, EPA notified the Governor of 
California, pursuant to section 110(a)(2)(H) of the pre-amended Act, 
that the above district's portions of the SIP were inadequate to attain 
and maintain the ozone standard and requested that deficiencies in the 
existing SIP be corrected (EPA's SIP-Call). On November 15, 1990, 
amendments to the 1977 CAA were enacted. Pub. L. 101-549, 104 Stat. 
2399, codified at 42 U.S.C. 7401-7671q.
    In amended section 182(a)(2)(A) of the CAA, Congress statutorily 
adopted the requirement that nonattainment areas fix their deficient 
Reasonably Available Control Technology (RACT) rules for ozone and 
established a deadline of May 15, 1991 for states to submit corrections 
of those deficiencies. Section 182(a)(2)(A) applies to areas designated 
as nonattainment prior to enactment of the amendments and classified as 
marginal or above as of the date of enactment. It requires such areas 
to adopt and correct RACT rules pursuant to pre-amended section 172(b) 
as interpreted in pre-amendment guidance.\1\
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    \1\ Among other things, the pre-amendment guidance consists of 
those portions of the proposed post-1987 ozone and carbon monoxide 
policy that concern RACT, 52 FR 45044 (November 24, 1987); Issues 
Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, 
Clarification to Appendix D of November 24, 1987 Federal Register 
Notice (Blue Book) (notice of availability was published in the 
Federal Register on May 25, 1988); and the existing control 
technique guidelines (CTGs).
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    In section 182(b)(3) of the CAA, Congress required the states to 
submit a SIP revision to require all owners or operators of gasoline 
dispensing systems in moderate or higher ozone nonattainment areas to 
install a gasoline vapor recovery system. The EPA Administrator would 
issue gasoline vapor recovery guidance as appropriate as to the 
effectiveness of such a system.
    The Monterey Bay Area, San Francisco Bay Area, Sacramento Metro 
Area, and San Joaquin Valley Area were designated nonattainment; 
therefore, these areas were subject to the RACT fix-up requirement and 
the May 15, 1991 deadline. The San Francisco Bay Area \2\ was later 
designated attainment and then redesignated nonattainment under subpart 
1, part D, of the CAA. Subpart 1 nonattainment areas must meet the 
requirements of RACT according to section 172(c)(1) of the CAA and must 
meet the requirements of the gasoline vapor recovery guidance according 
to section 182(b)(3) of the CAA. The Sacramento Metro Area and the San 
Joaquin Valley Area \3\ subpart 2 nonattainment areas classified as 
moderate or higher must meet the requirements of RACT according to 
section 182(a)(2)(A) and the gasoline vapor recovery guidance according 
to section 182(b)(3) of the CAA. The Monterey Bay Area \4\ has since 
been redesignated as a maintenance attainment area. This area must 
implement all measures in the SIP before redesignation as attainment, 
according to section 175A(d) of the CAA. Control of emissions from 
gasoline dispensing facilities is not a measure that is relied on to 
achieve or maintain attainment; therefore, the Monterey Bay Area is not 
subject to the requirements of RACT, including gasoline vapor recovery 
guidance. Lake County Air Basin was designated attainment and is not 
subject to the requirements of RACT, including gasoline vapor recovery 
guidance.
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    \2\ On July 10, 1998(63 FR 37258), EPA published the final rule 
redesignating the San Francisco Bay Area to nonattainment with the 
federal 1-hour ozone NAAQS. The redesignation was authorized under 
the general nonattainment provisions of subpart 1, part D, title I, 
of the CAA. The Bay Area, therefore, does not have a subpart 2 
classification. When comparing air quality in the Bay Area to the 
traditional subpart 2 classification system, the Bay Area's design 
value is equivalent to that of a moderate nonattainment area.
    \3\ The Sacramento Metro Area and the San Joaquin Valley Area 
retained their designation and were classified by operation of law 
pursuant to sections 107(d) and 181(a) upon the date of enactment of 
the CAA. See 56 FR 56694 (November 6, 1991). The San Joaquin Valley 
Area is classified as serious. On April 25, 1995, EPA published a 
final rule granting the State's request to reclassify the Sacramento 
Metro Area to severe from serious (60 FR 20237).
    \4\ On January 17, 1997 (62 FR 2597), EPA published a direct 
final rule redesignating Monterey Bay Area as maintenance attainment 
for ozone.
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    This document addresses EPA's proposed action for LCAQMD Section 
(Rule) 439.5, Retail Gasoline Service Stations, adopted on July 15, 
1997; MBUAPCD 1002, Transfer of Gasoline into Vehicle Fuel Tanks, 
adopted on April 21, 1999; BAAQMD Rule 8-7, Gasoline Dispensing 
Facilities, adopted on November 17, 1999; SMAQMD Rule 449, Transfer of 
Gasoline into Vehicle Fuel Tanks, adopted on April 3, 1997; and 
SJVUAPCD Rule 4622, Gasoline Transfer into Vehicle Fuel Tanks, adopted 
on June 18, 1998. These rules were submitted on May 18, 1998, June 3, 
1999, March 28, 2000, May 18, 1998, and August 21, 1998, respectively. 
These rules were found to be complete on July 17, 1998, June 24, 1999, 
May 19, 2000, July 17, 1998, and October 2, 1998, respectively, 
pursuant to EPA's completeness criteria that are set forth in 40 CFR 
Part 51, Appendix V. \5\ LCAQMD Section (Rule) 439.5 and MBUAPCD Rule 
1002, are being proposed for limited approval and limited disapproval 
without sanctions. BAAQMD Rule 8-7, SMAQMD Rule 449, and SJVUAPCD Rule 
4622 are being proposed for limited approval and limited disapproval 
with sanctions.
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    \5\ EPA adopted completeness criteria on February 16, 1990 (55 
FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA, revised 
the criteria on August 26, 1991 (56 FR 42216).
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    The BAAQMD and LCAQMD rules control the emission of volatile 
organic compounds (VOCs) from the transfer of gasoline into fuel 
storage tanks and into vehicle fuel tanks. The MBUAPCD, SMAQMD, and 
SJVUAPCD rules control the emission of VOCs from the transfer of 
gasoline into vehicle fuel tanks. VOCs

[[Page 68116]]

contribute to the production of ground level ozone and smog. These 
rules were originally adopted as part of these Districts' effort to 
achieve the National Ambient Air Quality Standard (NAAQS) for ozone and 
in response to EPA's SIP-Call and the section 182(a)(2)(A) and 
182(b)(3) CAA requirements.
    The following is EPA's evaluation and proposed action for these 
rules.

III. EPA Evaluation and Proposed Action

    In determining the approvability of a VOC rule, EPA must evaluate 
the rule for consistency with the requirements of the CAA and EPA 
regulations, as found in section 110 and Part D of the CAA and 40 CFR 
Part 51 (Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans). The EPA interpretation of these requirements, 
which forms the basis for today's action, appears in various EPA policy 
guidance documents including those listed below:
    <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 of November 24, 1987 
Federal Register (52 FR 45044) (The Blue Book).
    Among the requirements for a VOC rule for the nonattainment areas 
of BAAQMD, SMAQMD, and SJVUAPCD is that it must be enforceable and meet 
the requirements of RACT. A VOC rule for LCAQMD attainment area must be 
enforceable but need not meet the requirements of RACT. A rule for a 
maintenance attainment area must be enforceable and must implement all 
measures in the SIP before redesignation as attainment, according to 
section 175A(d). Control of emissions from gasoline dispensing 
facilities is not a measure that is relied on to achieve attainment in 
MBUAPCD; therefore, the MBUAPCD is not subject to the requirements of 
RACT.
    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).
    <bullet> Draft Gasoline Vapor Recovery Guidelines, (April 24, 
2000).
    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.
    There is currently no version of LCAQMD Section (Rule) 439.5 in the 
SIP. There are no versions on which EPA has not acted. The submitted 
rule includes the following provisions:
    <bullet> The transfer of gasoline to a storage tank (Phase I) and 
the transfer of gasoline to a vehicle fuel tank shall have a submerged 
fill pipe and CARB-certified vapor recovery equipment.
    <bullet> The transfer of gasoline to a vehicle fuel tank (Phase II) 
shall have CARB-certified vapor recovery equipment.
    <bullet> The dispensing equipment shall have appropriate warning 
signs and a hold open latch.
    <bullet> The rule contains various exemptions for gasoline stations 
less than certain minimum sizes.
    On February 9, 1996, 61 FR 4892, EPA approved into the SIP a 
version of MBUAPCD Rule 1002. There are no versions on which EPA has 
not acted. The submitted rule includes the following significant 
changes from the current SIP:
    <bullet> Section 3.1 continues to require that vapor recovery 
equipment be CARB-certified, but removes the requirement that the vapor 
recovery equipment prevents 95% of the gasoline vapors from entering 
the atmosphere.
    <bullet> Subsection 3.2.2 adds the requirement that equipment be 
tested in accordance with California Code of Regulations (CCR), Title 
17, sections 94000 et seq.
    <bullet> Section 3.4 is added to describe the 7-day period allowed 
to correct equipment not in good working order because of defects not 
specified by CARB pursuant to California Health and Safety Code section 
41960.2(c).
    <bullet> Part 4 separates the permitting requirements for new, 
modified, and existing gasoline dispensing systems.
    On March 22, 1995, 60 FR 15062, EPA approved into the SIP a version 
of BAAQMD Rule 8-7. There are no versions on which EPA has not acted. 
The submitted rule includes the following significant changes from the 
current SIP:
    <bullet> Numerous new standards were added for Phase I and II vapor 
recovery equipment.
    <bullet> Numerous definitions were added for clarity.
    <bullet> Performance tests of newly installed or modified equipment 
are required according to the required Authority to Construct.
    <bullet> New performance test methods were added.
    <bullet> Recordkeeping requirements were added.
    On January 23, 1996, 61 FR 1716, EPA approved into the SIP a 
version of SMAQMD Rule 449. There are no versions on which EPA has not 
acted. SMAQMD submitted Rule 449 includes the following significant 
changes from the current SIP:
    <bullet> Section 113 deletes the obsolete exemption for fueling 
fork lifts.
    <bullet> Section 305 adds a modification to prohibit hold open 
latches, if prohibited by the local Fire Marshal.
    <bullet> Section 306 requires that the Dynamic Back Pressure Test 
for gasoline dispensing nozzles must be passed. Testing could be more 
frequent than five years, if required by the CARB.
    On May 2, 1996, 61 FR 19555, EPA approved into the SIP a version of 
SJVUAPCD Rule 4622 that had been adopted by SJVUAPCD on February 17, 
1994. There are no versions on which EPA has not acted. The submitted 
includes the following significant changes from the current SIP:
    <bullet> Section 5.11, which requires that all liquid removal 
devices be maintained to remove at least five milliliters per gallon, 
is added.
    <bullet> Section 6.2.2, which required that certified vapor 
recovery systems be tested with 60 days of installation or major 
modification, is deleted.
    <bullet> Section 6.3.1 has added the requirement that the APCO, 
CARB, and EPA all approve test methods on vapor recovery systems on 
which referenced test methods are precluded.
    <bullet> Sections 6.3.1, 6.3.2, and 6.3.3 have three test methods 
added.
    EPA has evaluated LCAQMD submitted Rule 439.5 for an ozone 
attainment area for consistency with the CAA, EPA regulations, and EPA 
policy

[[Page 68117]]

and has found that the revisions strengthen the SIP by adding a rule to 
reduce gasoline vapor emissions during the transfer of gasoline in 
Phases I and II by the use of CARB-certified vapor recovery equipment. 
Although LCAQMD Section (Rule) 439.5 will strengthen the SIP, this rule 
still contains the following enforceability-related deficiencies that 
must be corrected pursuant to the section 182(a)(2)(A) and 182(a)(3) 
requirements of the CAA before the rule will qualify for full approval:
    <bullet> The rule should reference the specific EPA-approved test 
methods to be used for performance tests or reverification of 
performance tests for, at a minimum, a static leak test, a dynamic back 
pressure test, an air-to-liquid volume ratio test, and a liquid removal 
rate test.
    <bullet> Performance test records, reverification of performance 
test records, maintenance records and throughput records (if an 
exemption is claimed) should be maintained for at least two years.
    EPA has evaluated MBUAPCD Rule 1002 for a maintenance attainment 
area for consistency with the CAA, EPA regulations, and EPA policy and 
has found that the revisions strengthen the SIP with clarifications, by 
requiring the testing of vapor recovery equipment, and by requiring 
that defects be repaired in seven days. Although the rule will 
strengthen the SIP, this rule still contains the following 
enforceability-related deficiencies that must be corrected pursuant to 
the section 182(a)(2)(A) and 182(a)(3) requirements of the CAA before 
the rule will qualify for full approval:
    <bullet> Paragraph 3.2.2 contains obsolete references, repealed on 
July 11, 1996, for the vapor recovery equipment to be operated, tested, 
and maintained.
    <bullet> The rule should reference specific EPA-approved test 
methods for performance tests and reverification of performance tests 
to be used for, at a minimum, a static leak test, a dynamic back 
pressure test, an air-to-liquid volume ratio test, and a liquid removal 
rate test.
    <bullet> Paragraph 3.3 references ``pursuant to California Health 
and Safety Code, section 41960.2(c),'' but this reference does not list 
any vapor recovery equipment defects. The listing of vapor recovery 
equipment defects in CCR, title 17, section 94006, could be referenced 
or the defects could be listed specifically in the rule.
    <bullet> Performance test records, reverification of performance 
test records, maintenance records and throughput records (if an 
exemption is claimed) should be maintained for at least two years.
    EPA has evaluated BAAQMD Rule 8-7 for section 1 ozone nonattainment 
area for consistency with the CAA, EPA regulations, and EPA policy and 
has found that the revisions strengthen the SIP by adding new 
standards, adding test methods, adding recordkeeping requirements, and 
adding performance tests on new or modified equipment. Although the 
rule will strengthen the SIP, this rule still contains the following 
enforceability-related deficiencies that must be corrected pursuant to 
the section 182(a)(2)(A) and 182(a)(3) requirements of the CAA before 
the rule will qualify for full approval:
    <bullet> Paragraphs 302.3 and 306 require maintaining equipment 
free of defects as defined in California Health and Safety Code 
41960.2(c). California Code of Regulations (CCR), title 17, section 
94006 should be referenced instead, because it contains a list of the 
specific defects.
    <bullet> Reverification of the performance tests of the vapor 
recovery system originally required by the CARB Executive Order should 
be performed more frequently, because studies have shown poor 
compliance with performance standards. EPA recommends once every six 
months or, if In-Station Diagnostics are used, once every two years.
    EPA has evaluated SMAQMD Rule 449 for a severe ozone nonattainment 
area for consistency with the CAA, EPA regulations, and EPA policy and 
has found that the revisions strengthen the SIP by removing an obsolete 
exemption for fueling forklifts, by requiring the passing of the 
Dynamic Back Pressure Test, and by improving clarity. Although the rule 
will strengthen the SIP, this rule still contains the following 
enforceability-related deficiencies that must be corrected pursuant to 
the section 182(a)(2)(A) and 182(a)(3) requirements of the CAA before 
the rule will qualify for full approval:
    <bullet> Section 306 should reference the specific EPA-approved 
test method to be used for performance tests and reverification of 
performance tests for an air-to-liquid volume ratio test and a liquid 
removal rate test.
    <bullet> Performance testing of vapor recovery equipment should 
start within 30 days of completion of construction of vapor recovery 
equipment.
    <bullet> Reverification of the performance tests of the vapor 
recovery system originally required by the CARB Executive Order should 
be performed more frequently, because studies have shown poor 
compliance with performance standards. EPA recommends once every six 
months or, if In-Station Diagnostics are used, once every two years.
    <bullet> Section 502 contains no recordkeeping period. We recommend 
that maintenance records, performance test records, reverification of 
performance test records, and gasoline throughput records (if an 
exemption is claimed) be kept for at least two years.
    EPA has evaluated SJVUAPCD Rule 4622 for an ozone nonattainment 
area for consistency with the CAA, EPA regulations, and EPA policy and 
has found that the revisions strengthen the SIP by adding three test 
procedures to the rule and by requiring a five milliliter per gallon 
limit for liquid removal devices. Although the rule will strengthen the 
SIP, this rule still contains the following enforceability-related 
deficiencies that must be corrected pursuant to the section 
182(a)(2)(A) and 182(a)(3) requirements of the CAA before the rule will 
qualify for full approval:
    <bullet> Section 5.4.11 contains a reference to CCR, title 17, 
section 94001 for the certification procedure that CARB uses for vapor 
recovery equipment. The correct reference is CCR, title 17, section 
94011.
    <bullet> Section 6.1 contains no recordkeeping period. We recommend 
that maintenance records and reverification of performance test records 
be kept for at least two years.
    <bullet> Section 6.2.2 in the SIP rule, which required that 
certified vapor recovery systems be tested within 60 days of 
installation or major modification, was deleted from the submitted 
rule. This is less stringent than the SIP-approved rule. Performance 
testing of vapor recovery equipment should start within a defined 
period of completion of construction of vapor recovery equipment.
    <bullet> Section 6.3.1 should reference the specific EPA-approved 
test method to be used for performance tests and reverification of 
performance tests for an air-to-liquid volume ratio test.
    <bullet> Reverification of the performance tests of the vapor 
recovery system originally required by the CARB Executive Order should 
be performed more frequently, because studies have shown poor 
compliance with performance standards. EPA recommends once every six 
months or, if In-Station Diagnostics are used, once every two years.
    A detailed discussion of rule deficiencies can be found in the 
Technical Support Documents for LCAQMD Section (Rule) 439.5, MBUAPCD 
Rule 1002, BAAQMD Rule 8-7, SMAQMD Rule 449, and

[[Page 68118]]

SJVUAPCD Rule 4622, which are available from the U.S. EPA, Region IX 
office.
    Because of the enforceability-related deficiencies in LCAQMD 
Section (Rule) 439.5 and MBUAPCD Rule 1002, EPA cannot grant full 
approval of these rules under section 110(k)(3) of the CAA. However, 
sanctions pursuant to section 179(b) will not be applied, because these 
areas are an attainment area and a maintenance attainment area, 
respectively.
    Because of the deficiencies in BAAQMD Rule 8-7, SMAQMD Rule 449, 
and SJVUAPCD Rule 4622, EPA cannot grant full approval of these rules 
under section 110(k)(3) and part D. Also, because the submitted rules 
are not composed of separable parts which meet all the applicable 
requirements of the CAA, EPA cannot grant partial approval of the rules 
under section 110(k)(3). However, EPA may grant a limited approval of 
the submitted rules under section 110(k)(3) in light of EPA's authority 
pursuant to section 301(a) to adopt regulations necessary to further 
air quality by strengthening the SIP. The approval is limited because 
EPA's action also contains a simultaneous limited disapproval. In order 
to strengthen the SIP, EPA is proposing a limited approval of BAAQMD 
Rule 8-7, SMAQMD Rule 449, and SJVUAPCD Rule 4622, under sections 
110(k)(3) and 301(a) of the CAA.
    At the same time, EPA is also proposing a limited disapproval of 
BAAQMD Rule 8-7, SMAQMD Rule 449, and SJVUAPCD Rule 4622, because they 
contain deficiencies that have not been corrected as required by 
section 182(a)(2)(A) and 182(a)(3)(A) of the CAA, and, as such, the 
rules do not fully meet the requirements of part D of the CAA. Under 
section 179(a)(2), if the Administrator disapproves a submission under 
section 110(k) for an area designated nonattainment, based on the 
submission's failure to meet one or more of the elements required by 
the Act, the Administrator must apply one of the sanctions set forth in 
section 179(b) unless the deficiency has been corrected within 18 
months of such disapproval. These sanctions would be imposed according 
to 40 CFR 52.31. Moreover, the final disapproval triggers the Federal 
Implementation Plan (FIP) requirement under section 110(c). It should 
be noted that the rules covered by this NPR have been adopted by the 
LCAQMD, MBUAPCD, BAAQMD, SMAQMD, and SJVUAPCD and are currently in 
effect in the Districts. EPA's final limited disapproval action will 
not prevent these Districts from enforcing these rules.
    We will accept comments from the public on the proposed limited 
approvals and limited disapprovals for the next 30 days.

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 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

[[Page 68119]]

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 approvals 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 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.
    EPA's proposed disapproval of the state request under section 110 
and subchapter I, part D of the Clean Air Act does not affect any 
existing requirements applicable to small entities. Any pre-existing 
federal requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, 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 
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 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. 00-29065 Filed 11-13-00; 8:45 am]
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