02-27343. Revisions to the California State Implementation Plan, Imperial County Air Pollution Control District, Ventura County Air Pollution Control District, and Santa Barbara County Air Pollution Control District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing a limited approval and limited disapproval of revisions to the Imperial County Air Pollution Control District (ICAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). This action was proposed in the Federal Register on April 25, 2002 and concerns volatile organic compound (VOC) emissions from gasoline dispensing facilities. Under authority of the Clean Air Act as amended in 1990 (CAA or the Act), this action simultaneously approves local rules that regulate this emission source and directs California to correct rule deficiencies.

EPA is also finalizing the full approval of a revision to the Santa Barbara County Air Pollution Control District portion of the California SIP regarding organic liquid cargo vessels.

EFFECTIVE DATE:

This rule is effective on November 29, 2002.

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:

Air and Radiation Docket and Information Center (6102T), U.S. Environmental

Protection Agency, Room B-102, 1301 Constitution Avenue, NW., Washington, DC 20460.

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

Imperial County Air Pollution Control District, 150 South 9th Street, El Centro, CA 92243.

Ventura County Air Pollution Control District, 669 County Square Drive, Ventura, CA 93003.

Santa Barbara County Air Pollution Control District, 26 Castilian Drive, Suite B-23, Goleta, CA 93117.

A copy of the rules may also be available via the Internet at http://www.arb.ca.gov/​drdb/​drdbltxt.htm. Please be advised that this is not an EPA website and may not contain the same version of the rules that were submitted to EPA.

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 April 25, 2002 (67 FR 20478), we proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the California SIP by the California Air Resources Board (CARB).

Table 1.—Submitted Rules

Local Agency	Rule #	Rule title	Revised	Submitted
ICAPCD	415	Transfer and Storage of Gasoline	09/14/99	05/26/00
VCAPCD	70	Storage and Transfer of Gasoline	11/14/00	05/08/01

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the CAA. Our proposed action contains more information on the rules and our evaluation.

On April 25, 2002 (67 FR 20478), we also proposed a full approval of the following rule that was submitted for incorporation into the California SIP.

Table 2.—Submitted Rule

Local Agency	Rule #	Rule Title	Revised	Submitted
SBCAPCD	346	Loading of Organic Liquid Cargo Vessels	01/18/01	05/08/01

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.

1. Richard H. Baldwin, Ventura County Air Pollution Control District, letter dated May 28, 2002 and received May 28, 2002. The comments and our responses are summarized below.

Comment 1: EPA's proposed rulemaking states that Rule 70 is deficient because, “Reverification of the performance tests of the vapor recovery system * * * should be performed more frequently * * * in order to fulfill RACT.” For a variety of reasons, the commenter believes that this deficiency is more stringent than that required by RACT.

Response 1: RACT generally refers largely to direct emission control requirements such as emission limits. Monitoring, reporting, recordkeeping, and similar requirements designed to ensure compliance with control requirements are sometimes also referred to as components of RACT, but often considered simply enforceability elements necessary to fulfill the general CAA 110(a)(2) enforceability requirement. We agree with the commenter that the control requirements in Rule 70 meet or exceed RACT. However, we should have identified the rule deficiency more clearly as an enforceability issue because, as described in our proposal action and associated TSD, we believe the existing performance test requirements do not adequately ensure continued compliance with the control requirements.

Comment 2: South Coast AQMD is the only California District that currently contains reverification of performance test requirements sufficient to address EPA's proposed limited disapproval. EPA should not define RACT based on the single most stringent adopted rule.

Response 2: EPA is not using the more stringent South Coast requirements as the primary basis for disapproving Rule 70. Rather, as discussed in our proposed action, we are relying on the research, performed by the California Air Pollution Control Officer's Association (CAPCOA), CARB, and others, which shows that existing Rule 70 reverification of performance test requirements do not adequately ensure compliance with the rule's control requirements. See also Response 1.

Comment 3: EPA should approve the submitted version of Rule 70 as meeting RACT requirements.

Response 3: We concur that Rule 70 meets or exceeds the RACT control requirements. We do not believe, however, that the reverification of performance test requirements adequately fulfill section 110(a)(2) enforceability requirements. See also Response 1.

Comment 4: EPA Region IX's guidelines for evaluating vapor recovery rules are inappropriately more stringent in California than in other states.

Response 4: The guidelines distinguish requirements in California from requirements in other states because of the unique role that CARB plays in regulating vapor recovery. We believe, however, that the substance of our guidelines is the same for California and other states.

Comment 5: The rule improvement identified by EPA is not relied upon in Ventura's approved attainment demonstration.

Response 5: Improved reverification of performance test requirements are not intended to directly yield emission reductions that would be incorporated in an attainment demonstration. They are intended to assure that control requirements contained in Rule 70, which are relied on in Ventura's attainment demonstration, are in fact achieved.

Comment 6: RACT should be determined on a national, not a regional basis.

Response 6: Reasonably available controls can vary somewhat based on local economic and other factors. See also Response 1.

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 CAA, EPA is finalizing a limited approval of VCAPCD Rule 70. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of VCAPCD Rule 70. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act as described in 59 FR 39832 (August 4, 1994). In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months.

As authorized in sections 110(k)(3) and 301(a) of the CAA, EPA is finalizing a limited approval of ICAPCD Rule 415. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of ICAPCD Rule 415. No sanctions are associated with this action because this is not a required submittal.

Note that the submitted rules have been adopted by the VCAPCD and ICAPCD, and EPA's final limited disapproval does not prevent the local agencies from enforcing them.

As authorized in sections 110(k)(3) of the CAA, EPA is finalizing a full approval of SBCAPCD Rule 346. This action incorporates the submitted rule into the California SIP.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13211

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

C. 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 Executive Order 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 Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

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. Executive Order 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 Executive Order 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 Executive Order 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.

E. 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.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This final 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 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).

G. 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.

H. 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.

I. 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).

J. 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 December 30, 2002. 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: October 1, 2002.

Laura Yoshii,

Deputy 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 paragraphs (c)(279)(i)(A)( 9), (284)(i)(C)(2), and (284)(i)(D)(2) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(279) * * *

(i) * * *

(A) * * *

(9) Rule 415, adopted on September 14, 1999.

* * * * *

(284) * * *

(i) * * *

(C) * * *

(2) Rule 346, adopted on January 18, 2001.

(D) Ventura County Air Pollution Control District.

(2) Rule 70, adopted on November 14, 2000.

* * * * *