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 Environmental Protection Agency 40 CFR Part 52
[EPA-R09-OAR-2024-0349; FRL-12130-01-R9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Proposed rule.
 SUMMARY: The Environmental Protection Agency (EPA) is proposing a limited approval and limited disapproval of revisions to the Maricopa County Air Quality Department (MCAQD or “County”) portion of the Arizona State Implementation Plan (SIP). These revisions concern emissions of volatile organic compounds (VOC) from loading of organic liquids and gasoline. We are proposing action on local rules to regulate these emission sources under the Clean Air Act (CAA or “Act”). We are also proposing to disapprove the MCAQD's reasonably available control technology (RACT) demonstration for the source categories associated with these rules for the 2008 8-hour ozone national ambient air quality standards (NAAQS) in the Phoenix-Mesa ozone nonattainment area. We are taking comments on this proposal and plan to follow with a final action.
 DATES: Comments must be received on or before December 9, 2024.
 ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-OAR-2024-0349 at 
                        *https://www.regulations.gov.*
                         For comments submitted at 
                        *Regulations.gov*, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from 
                        *Regulations.gov*. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
                        *i.e.,*
                         on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the 
                        **FOR FURTHER INFORMATION CONTACT**
                         section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit 
                        *https://www.epa.gov/​dockets/​commenting-epa-dockets.*
                         If you need assistance in a language other than English or if you are a person with a disability 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: Donnique Sherman, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129; email at 
                        *sherman.donnique@epa.gov.*


SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to the EPA. Table of Contents I. The State's Submittal
                        ( print page 88691) A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. Were there any newly identified deficiencies with the December 3, 2020, submitted rules? D. The EPA's Recommendations To Further Improve the Rules E. Proposed Action and Public Comment III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit? Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the MCAQD and submitted to the EPA by the Arizona Department of Environmental Quality (ADEQ or “State”). Table 1—Submitted Rules
Local agency
Rule No.
Rule title
Revised
SubmittedMCAQD
352
Gasoline Cargo Tank Testing and Use
11/18/2020
12/03/2020MCAQD
353
Storage and Loading of Gasoline at a Gasoline Dispensing Facility (GDF)
11/18/2020
12/03/2020
 On June 3, 2021, the SIP submittal containing the documents listed in Table 1 was deemed complete by operation of law. B. Are there other versions of these rules? We conditionally approved earlier versions of Rule 352 and Rule 353 into the SIP on February 26, 2020 (85 FR 10986), based on a commitment made by the MCAQD to remedy the deficiencies identified in that action. In order to fulfill that commitment, the MCAQD adopted revisions to the SIP-approved versions of these rules on November 18, 2020, and ADEQ submitted them to the EPA on December 3, 2020. The February 26, 2020 conditional approval, and an explanation of how the SIP submittal proposed for approval here addresses the deficiencies identified in the conditional approval, are discussed in more detail below. If we finalize this proposal for a limited approval and limited disapproval of the November 18, 2020 versions of these rules, then these versions will replace the conditionally approved versions of these rules in the SIP. C. What is the purpose of the submitted rule revisions? Emissions of VOC contribute to the formation of ground-level ozone which harms human health and the environment. Section 110(a) of the CAA requires states to submit plans that provide for implementation, maintenance, and enforcement of the NAAQS. In addition, CAA section 182(b)(2) requires that SIPs for ozone nonattainment areas classified as “Moderate” or higher implement RACT for sources covered by a control techniques guidelines (CTG) document. The MCAQD regulates a portion of the Phoenix-Mesa area designated as nonattainment for ozone and classified as Moderate nonattainment for the 2008 ozone NAAQS.[1]
                    
                     Therefore, the MCAQD is required to submit SIP revisions that implement RACT-level controls for all sources covered by a CTG. The MCAQD submitted Rule 352 and Rule 353 to establish RACT-level controls for VOC emissions from sources covered by the CTGs listed in Table 2. Rule 352 limits VOC emissions from gasoline cargo tanks that are used to load or unload gasoline within Maricopa County. Rule 353 limits VOC emissions from storage and loading of gasoline at gasoline dispensing facilities (GDFs). Table 2—Rules and Associated CTGs
Rule No.
Associated CTGsRule 352
Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems (EPA-450/2-78-051).Rule 353
Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations (EPA-450/R-75-102).
 Section III.D of the preamble to the EPA's final rule to implement the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015) discusses RACT requirements. It states in part that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that there are no sources in the nonattainment areas subject to a specific CTG. The County's RACT SIP [2]
                    
                     provides MCAQD's analysis of its compliance with the CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. On February 26, 2020, the EPA conditionally approved MCAQD Rule 352, Rule 353, and the County's RACT demonstration for the CTGs associated with these rules, into the Arizona SIP. The rules contained deficiencies which precluded full SIP approval and were conditionally approved based on a commitment by the MCAQD and the ADEQ to provide, within one year, a SIP submission that would address those deficiencies. The MCAQD subsequently revised these rules to address the identified deficiencies and the ADEQ submitted the revised rules on December 3, 2020. The EPA's technical support document (TSD) has more information about these rules. 
 
 II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules? Rules in the SIP must be enforceable (see CAA section 110(a)(2)) and must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)). In addition, because these rules were submitted to satisfy the RACT requirement for sources covered by the CTGs listed in Table 2, these rules must establish RACT level controls for such sources. Guidance and policy documents that the EPA used to evaluate enforceability, revision/relaxation, and rule stringency requirements for the applicable criteria pollutants include the following: 1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992). 2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990). 3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook). 4. “Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems,” EPA-450/2-78-051, December 1978. 5. “Design Criteria for Stage I Vapor Control Systems-Gasoline Service Stations,” EPA-450/R-75-102, November 1975. B. Do the rules meet the evaluation criteria? The EPA is proposing to conclude that the State met its commitment and that these revised rules have corrected the deficiencies previously identified in the earlier versions of the rules that were conditionally approved into the SIP. The TSD has more information on our evaluation, including descriptions of the individual deficiencies and the way that each was addressed in the current submitted version of the rules. As described in the TSD, the submitted rules strengthen the SIP and generally establish RACT level controls. However, as discussed in the subsequent section, EPA is proposing to conclude that the submitted rules contain newly identified deficiencies that prevent full approval of the rules. C. Were there any newly identified deficiencies with the December 3, 2020, submitted rules? EPA is proposing to conclude that the following provisions in Rule 352 do not satisfy the requirements of section 110 and part D of title I of the Act and therefore prevent full approval of the SIP revision. 1. In addition to the annual certification test required by Section 301.1, Sections 502 and 503 of Rule 352 outline ongoing monitoring tests to perform to detect potential leaks. However, the rule does not identify any enforceable requirements to monitor using these tests on a periodic basis or any recordkeeping and reporting associated with this requirement. EPA is proposing to find that this undermines the enforceability of the rule, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110. 2. Section 103.3(a) requires that an “owner or operator of a gasoline cargo tank provides documentation from the gasoline cargo tank testing company to the Control Officer that certifies that the gasoline cargo tank was tested and verified vapor tight using test methods at least as stringent as those in Section 501.1 (Maricopa County Vapor Tightness Test).” This provision allows the Control Officer authority to approve another test method, and without further specificity regarding how this authority will be exercised, could functionally allow for a revision of the SIP without complying with the process for SIP revisions required by the CAA. As a result, EPA is proposing to determine that this undermines the enforceability of the submission, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110. The EPA is proposing to conclude that the following provisions in Rule 353 do not satisfy the requirements of section 110 and part D of title I of the Act and prevent full approval of the SIP revision. 1. Rule 353 requires that control equipment or spill containment equipment at a stationary GDF or on a gasoline cargo tank be leak free and vapor tight, requiring weekly inspections. Rule 353 generally requires a facility to determine if there is a “potential vapor leak” prior to being required to conduct a more stringent vapor tightness determination. Section 501 of Rule 353 allows for four different options to identify potential vapor leaks. Section 501.1 allows for the “use of sight, sound, or smell” as an acceptable method for identifying potential vapor leaks. Although using sight, sound, or smell can play a role in identifying potential vapor leaks, allowing for that to potentially be the only method used could functionally allow for potential leak identification to be left solely left to the operator's discretion and sensory inputs. Therefore, without a provision to periodically utilize methods beyond sight, sound, or smell, EPA is proposing to determine that this provision undermines the enforceability of the rule's requirement for vapor tight compliance. 2. Section 500 of Rule 353 contains ongoing monitoring and recordkeeping requirements but does not specifically contain any requirements to report compliance information. However, reporting requirements are contained within Section 301 of the rule because it incorporates the applicable requirements from the National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities at 40 CFR part 63, subpart CCCCCC (“Subpart CCCCCC”), which includes reporting requirements.[3]
                    
                     However, Subpart CCCCCC is not applicable to the loading of aviation gasoline into storage tanks at airports, and the subsequent transfer of aviation gasoline within the airport.[4]
                    
                     Rule 353 does apply to loading of aviation gasoline at airports, but does not elsewhere require periodic reporting for these facilities. Given this framework, EPA is proposing to find that Rule 353 has a reporting gap, because there is no periodic compliance reporting required for loading of aviation gasoline at airports. Due to the lack of adequate reporting requirements (or some alternative means of ensuring enforceability) during loading of aviation gasoline into storage tanks, EPA is proposing to find that this provision undermines the enforceability of the rule's requirement for vapor tight compliance, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110. D. The EPA's Recommendations To Further Improve the Rules The TSDs include recommendations for the next time the MCAQD modifies these rules.
                    ( print page 88693) E. Proposed Action and Public Comment The EPA is proposing a limited approval and limited disapproval of the submitted rules. The EPA is proposing a limited approval because the EPA's analysis demonstrates that Rule 352 and Rule 353 would strengthen the SIP. The rules generally establish RACT level controls, and the MCAQD has fixed the deficiencies that were previously identified with the rules in the February 26, 2020, conditional approval. The EPA is proposing a simultaneous limited disapproval for Rule 352 and Rule 353 based on the enforceability issues identified in section II.C. of this notice and described in detail in their respective TSDs. In addition, as authorized in section 110(k)(3) of the Act, the EPA is proposing a disapproval of the RACT demonstrations for the 2008 ozone National Ambient Air Quality Standards (NAAQS) for the sources covered by the CTGs associated with these rules, because the deficiencies for certain source categories as identified in the proposed limited disapproval preclude the EPA from proposing to approve this RACT demonstration as a whole. The EPA is also proposing to find that the State has met its commitment under the previous conditional approval of Rules 352 and 353 and the associated CTG source categories. If we finalize this limited approval and limited disapproval as proposed, we would replace the conditionally approved versions of the rules with the newly submitted versions in the SIP, and also remove the text associated with the conditional approval from 40 CFR 52.119(c)(1). We will accept comments from the public on this proposal until December 9, 2024. If finalized, this action would incorporate the submitted rules into the SIP, including those provisions identified as deficient. This approval is limited because the EPA is simultaneously proposing a limited disapproval. If we finalize this disapproval as proposed, CAA section 110(c) would require the EPA to promulgate a federal implementation plan within 24 months unless we approve subsequent SIP revisions that correct the deficiencies identified in our final action. In addition, final disapproval would trigger the offset sanction in CAA section 179(b)(2) 18 months after the effective date of a final disapproval, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction would not be imposed if the EPA determines that a subsequent SIP submission corrects the deficiencies identified in our final action before the applicable deadline. The EPA intends to work with MCAQD to correct the deficiencies in a timely manner. Note that the submitted rules have been adopted by MCAQD, and the EPA's final limited disapproval would not prevent the State from enforcing them. The limited disapproval also would 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.* III. Incorporation by Reference In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference MCAQD Rule 352, “Gasoline Cargo Tank Testing and Use,” revised on November 18, 2020, which regulates VOC emissions during loading and unloading of gasoline to any gasoline cargo tank within Maricopa County. The EPA is also proposing to incorporate by reference MCAQD Rule 353, “Storage and Loading of Gasoline at a Gasoline Dispensing Facility,” revised on November 18, 2020, which regulates VOC emissions during storage and loading of gasoline at a gasoline dispensing facility. The EPA has made, and will continue to make, these materials 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). IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to review state choices, and approve those choices if they meet the minimum criteria of the Act. Accordingly, this proposed action is proposing a limited approval and limited disapproval of state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. 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. 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 
                    ( print page 88694)
                    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. Therefore, this action is not subject to Executive Order 13045 because it is merely proposing a limited approval and limited disapproval of state law as meeting federal requirements. Furthermore, the EPA's Policy on Children's Health does not apply to this action. 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 Population Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving EJ for communities with EJ concerns. 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
 Dated: November 2, 2024. Martha Guzman Aceves, Regional Administrator, Region IX.


# Footnotes

1.
    
                         On November 12, 2019 (84 FR 60920), the EPA issued a determination that the Phoenix-Mesa ozone nonattainment area attained the 2008 ozone National Ambient Air Quality Standard (NAAQS) by the Moderate area attainment date of July 20, 2018. That determination did not constitute a redesignation of the area to attainment for the 2008 ozone standard. The designation status of the Phoenix-Mesa area will remain Moderate nonattainment for the 2008 ozone NAAQS until such time as the EPA determines that the area meets Clean Air Act requirements for redesignation to attainment. Back to Citation
 2.
    
                         “Analysis of Reasonably Available Control Technology for the 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) State Implementation Plan (RACT SIP)” submitted June 22, 2017. Back to Citation
 3.
    
                         See 40 CFR 63.11126 and Table 3 to Subpart CCCCCC. For example, Subpart CCCCCC requires annual reporting related to malfunctions (malfunction of process equipment and air pollution control equipment), requires all performance tests reports to be submitted, and requires advanced notification of performance tests. Back to Citation
 4.
    
                         See 40 CFR part 63.11111(g). Back to Citation


[FR Doc. 2024-25947 Filed 11-7-24; 8:45 am] BILLING CODE 6560-50-P