06-3401. Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District and South Coast Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and South Coast Air Quality Management District (SCAQMD) portions of the California State Implementation Plan (SIP). These revisions concern particulate matter (PM-10) emissions from open burning and volatile organic compound (VOC) emissions from gasoline storage and transfer. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

DATES:

This rule is effective on June 12, 2006 without further notice, unless EPA receives adverse comments by May 11, 2006. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2006-0171, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions.
• E-mail: [e-mail].
• Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail.

WWW.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Al Petersen, EPA Region IX, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, “we” “us” and “our” refer to EPA.

Table of Contents

I. The State's Submittal

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. EPA's Evaluation and Action

A. How is EPA evaluating the rules?

B. Do the rule revisions meet the evaluation criteria?

C. Public comment and final action

III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What Rules Did the State Submit?

Table 1 lists the rules we are approving with the dates that the amended rules were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

Table 1.—Submitted Rules for Direct Final Approval

Local agency	Rule #	Rule title	Amended	Submitted
SJVUAPCD	4103	Open Burning	05/19/05	10/20/05
SCAQMD	461	Gasoline Storage and Transfer	06/03/05	10/20/05

On November 22, 2005, these rule submittals were 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 These Rules?

We approved a version of SJVUAPCD Rule 4103 into the SIP on April 25, 2005 (70 FR 21151). We approved a version of SCAQMD Rule 461 into the SIP on February 22, 2005 (70 FR 8520).

C. What Is the Purpose of the Submitted Rule Revisions?

Section 110(a) of the Clean Air Act (CAA) requires states to submit regulations that control volatile organic compounds, nitrogen oxides, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local air district's programs to control these pollutants.

The primary purpose of the SJVUAPCD Rule 4103 revisions relative to the SIP rule is to add provisions to the rule in order to be consistent with California Health and Safety Code sections 41855.5 and 41855.6 as follows:

• 4103.5.5.1.1: As of June 1, 2005 no permit shall be issued for the burning waste from the field crops of alfalfa, asparagus, barley stubble, beans, corn, cotton, flower straw, hay, lemon grass, oat stubble, pea vines, peanuts, safflower, sugar cane, vegetable crops, and wheat stubble.
• 4103.5.5.1.2: As of June 1, 2005 no permit shall be issued for the burning of prunings from apricot crops, avocado crops, bushberry crops, cherry crops, Christmas trees, citrus crops, date crops, eucalyptus crops, kiwi crops, nectarine crops, nursery prunings, olive crops, pasture or corral trees, peach crops, persimmon crops, pistachio crops, plum crops, pluot crops, pomegranate crops, prune crops, and rose crops.
• 4103.5.5.1.3: As of June 1, 2005 no permit shall be issued for weed abatement from berms, fence rows, pasture, grass, and Bermuda grass.
• 4103.5.5.2: Between June 1, 2005 and June 1, 2008 permits may be issued for the burning of rice stubble up to 100% of the rice acreage farmed and between June 1, 2008 and June 1, 2010 for the burning of rice stubble up to 70% of the rice acreage farmed.
• 4103.5.5.3: Until June 1, 2010 permits may be issued for the burning of prunings from apple crops, pear crops, fig crops, and quince crops and for weed abatement affecting surface waterways, including pond and levee banks.
• 4103.5.5.4: As of June 1, 2005 owner/operators shall use at least one of fourteen Best Management Practices listed in attachment 1 of Rule 4103 for the control of star thistle, dodder weeds, tumble weeds, noxious weeds, and weeds located along ditch banks or canal banks and shall use one of three listed Best Management Practices for disposal of pesticide or fertilizer sacks. The APCO may approve any alternative practice that is demonstrated to be at least as effective in controlling emissions as the listed practices.

The purposes of SCAQMD Rule 461 revisions relative to the SIP rule are as follows:

• 461(c)(1)(B) and 461(c)(2)(B): The rule adds the requirements for training of installer/contractors in a manufacturer's program for Phase I and II vapor recovery equipment by June 30, 2006.
• 461(c)(3)(M): The rule adds the requirement for a non-retail transfer and dispensing facility to have an operating and maintenance manual with manufacturer required maintenance procedures delineated.
• 461(e)(2)(A) and 461(f): The rule adds the requirement for additional reverification tests and test procedures, as applicable, for static torque of rotatable adaptors, leak rate of the drop tube/drain valve assembly, leak rate of the drop tube overfill protection device and spill container drain valve, and the leak rate and cracking pressure of pressure/vacuum vent valves.
• 461(e)(7)(E): The rule adds the requirement for a record of training for the installer/contractor for installation of Enhanced Vapor Recovery Equipment.
• 461(g)(1): The rule deletes after July 1, 2007 the exemption for a storage tank with more than 75% of its throughput used for implements of husbandry.
• 461(g)(2): The rule adds an exemption for fueling the Tournament of Roses Parade floats.

EPA's technical support document (TSD) has more information about these rules.

II. EPA's Evaluation and Action

A. How Is EPA Evaluating the Rules?

Generally, SIP rules must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193).

SIP rules must require for major sources reasonably available control measures (RACM), including reasonably available control technology (RACT), in moderate PM-10 nonattainment areas (see section 189(a)) or must require for major sources best available control measures (BACM), including best available control technology (BACT), in serious PM-10 nonattainment areas (see section 189(b)). SJVUAPCD regulates a serious PM-10 nonattainment area (see 40 CFR part 81), so SJVUAPCD Rule 4103 must fulfill the requirements of BACM/BACT.

SIP rules in ozone nonattainment areas must require RACT for major sources of VOC (see section 182(a)(2)(A)). The SCAQMD regulates a 1-hour ozone nonattainment area (see 40 CFR part 81), so Rule 461 must fulfill the requirements of RACT. SIP rules regulating gasoline storage and transfer must also provide for vapor recovery from the fueling of motor vehicles (see section 182(a)(3)).

Guidance and policy documents that we use to help evaluate specific enforceability and RACT requirements consistently include the following:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.
• PM-10 Guideline Document (EPA-452/R-93-008).
• 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, EPA (May 25, 1988) (the Bluebook).
• Guidance Document for Correcting Common VOC & Other Rule Deficiencies, EPA Region IX (August 21, 2001) (the Little Bluebook).
• Draft Model Rule, Gasoline Dispensing Facility—Stage II Vapor Recovery, EPA (August 17, 1992).
• Gasoline Vapor Recovery Guidelines, EPA Region IX (April 24, 2000).

B. Do the Rule Revisions Meet the Evaluation Criteria?

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, BACM/BACT, RACT, and the special requirements for gasoline vapor recovery from fueling motor vehicles. The TSD has more information on our evaluation.

C. Public Comment and Final Action

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted SJVUAPCD Rule 4103 and SCAQMD Rule 461 because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by May 11, 2006, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on June 12, 2006. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 12, 2006. 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
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: March 7, 2006.

Wayne Nastri,

Regional Administrator, Region IX.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart F—California

2. Section 52.220 is amended by adding paragraph (c)(342)(i)(B) and (C) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(342) * * *

(i) * * *

(B) San Joaquin Valley Unified Air Pollution Control District.

(1) Rule 4103, adopted on June 18, 1992 and amended on May 19, 2005.

(C) South Coast Air Quality Management District.

(1) Rule 461, adopted on January 9, 1976 and amended on June 3, 2005.