01-15617. Revision to the California State Implementation Plan, Antelope Valley Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing a full disapproval of a revision to the Antelope Valley Air Pollution Control District portion of the California State Implementation Plan (SIP). This action was proposed in the Federal Register on November 14, 2000 and concerns volatile organic compound (VOC) emissions from the transfer of gasoline at dispensing stations. We are taking this action under authority of the Clean Air Act as amended in 1990 (CAA or the Act).

EFFECTIVE DATE:

This rule is effective on July 23, 2001.

ADDRESSES:

You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You can inspect copies of the submitted rule revisions at the following locations:

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

Environmental Protection Agency, Air Docket (6102), Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington DC 20460.

California Air Resources Board, Stationary Source Division, Rule Evaluation Section, 1001 “I” Street, Sacramento, CA 95814.

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; [phone].

SUPPLEMENTARY INFORMATION:

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

I. Proposed Action

On November 14, 2000 (65 FR 68111), EPA proposed a full disapproval of the following rule that was submitted for incorporation into the California SIP.

Table 1.—Submitted Rule

Local agency	Rule No.	Rule title	Adopted	Submitted
AVAPCD	461	Gasoline Transfer and Dispensing	09/15/98	05/13/99

Our proposed action contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following party:

• Charles L. Fryxell, AVAPCD; letter dated December 12, 2000 and received December 14, 2000.

The comments and our responses are summarized below.

Comment I: AVAPCD disagrees with EPA that the reference to Rule 430 must be removed from Rule 461 because Rule 430 is not in the SIP and is not appropriate for the SIP. AVAPCD argues that Rule 430 was appropriately submitted to EPA as a SIP revision to support the District's title V program. AVAPCD believes that pursuant to the part 70 White Papers #1 and #2, submitted Rule 430 should be considered enforceable unless and until EPA disapproves it.

Response: Page 19 of part 70 White Paper #2 provides for Districts to write Title V permits that rely on rules that have been submitted but not approved by EPA, where the District reasonably believes that the submitted rule will be approved. This does not adequately support the comment on Rule 461 because:

(1) The White Papers do not address the case where a SIP rule, rather than a permit, references rules submitted but not approved.

(2) Based on the EPA correspondence referenced in the comment, AVACPD cannot reasonably assume that the submitted Rule 430 will be approved.

Because we believe Rule 430 will not be incorporated into the SIP and because we have identified other deficiencies in Rule 461, we believe it is appropriate to list the reference to Rule 430 as a deficiency in Rule 461. However, if AVAPCD continues to request EPA action on Rule 430, we can act on Rule 430 in a time frame consistent with District activity to revise Rule 461.

Comment II: AVAPCD comments that they removed the “Self-Compliance Program” (SCP) from Rule 461 because South Coast Air Quality Management District (SCAQMD) audits showed that the SCP was ineffective. AVAPCD also comments that they intend to monitor changes that SCAQMD has made in their SCP and will consider EPA's suggested replacement program.

Response: Information collected over the last several years by CARB, SCAQMD and others show considerable VOC emissions caused by inadequately maintained vapor recovery equipment. The SCP was designed to require regular equipment inspections and upkeep to ensure reasonable emission control. While this program may be flawed, we believe it has resulted in significant emission reductions. AVAPCD's removal of the SCP requirement without equivalent replacement violates sections 110(l), 182(b)(2), and 182(b)(3) of the CAA.

Comment III: AVAPCD comments that the proposed disapproval should be a limited approval/limited disapproval, because the rule was previously approved into the SIP and portions of the proposed amendments, including the deletion of the training requirement, the conditional extension of the exemption for mobile fuelers, and a wide variety of minor changes, were acceptable to EPA.

Response: In general, we propose a limited approval/limited disapproval to SIP revisions that have minor deficiencies but strengthen the SIP overall. We believe this is not the case for the submitted Rule 461. None of the cited amendments and minor changes strengthen the SIP. The deletion of the requirement for the Self-Compliance Program weakens the SIP overall. Therefore, it is preferable to maintain the existing version of the rule in the SIP until the deficiencies are corrected.

III. EPA Action

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a full disapproval of the submitted rule. This action retains the SIP rule in the California SIP. Sanctions will not be imposed under section 179 of the Act as described in 59 FR 39832 (August 4, 1994).

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, entitled “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 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 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 rule.

D. Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this 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.

EPA's 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 approval action promulgated 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 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 action because it does not require the public to perform activities conducive to the use of VCS.

H. Submission to Congress and the Comptroller General

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 rule is not a “major” rule as defined by 5 U.S.C. 804(2).

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 20, 2001. 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
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: May 24, 2001.

Jane Diamond,

Acting 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 52.269 is amended by adding paragraph (b)(3)(iii) to read as follows:

§ 52.269

Control strategy and regulations: Photochemical oxidants (hydrocarbons) and carbon monoxide.

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(b) * * *

(3) * * *

(iii) Antelope Valley APCD.

(A) Rule 461, Gasoline Transfer and Dispensing, submitted on May 13, 1999, is disapproved. The version of this rule submitted on January 31, 1996 (same title and number), which was previously approved in 40 CFR 52.220, is retained.

* * * * *