04-13682. Approval and Promulgation of Implementation Plans: Florida Broward County Aviation Department Variance

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is finalizing approval of revisions to the State Implementation Plan (SIP) submitted by the State of Florida for the purpose of a department order granting a variance from Rule 62-252.400 to the Broward County Aviation Department. This final rule addresses comments submitted in response to EPA's direct final rule published previously for this action.

DATES:

Effective Date: This rule will be effective July 19, 2004.

ADDRESSES:

Copies of documents relevant to this action are available for public inspection during normal business hours at: Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Or, by going to the Regional Material in EDocket index at http://docket.epa.gov/​rmepub/​ and doing a quick search on “R04-0AR-2003-FL-0001.”

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Mr. Lakeman can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On April 6, 2004, EPA simultaneously published a proposed rule (69 FR 18006) and a direct final rule (69 FR 17929) to approve a department order granting a variance from Rule 62-252.400 to the Broward County Aviation Department. The Florida Administrative Code (F.A.C.) Rule 62-252.400, requires Stage II vapor recovery systems for all gasoline dispensing facilities located in Broward, Dade, and Palm Beach counties which commence construction or undertake a significant modification after November 15, 1992, prior to dispensing 10,000 gallons or more in any one month. The purpose of the Stage II vapor recovery requirement in Rule 62-252.400, F.A.C. is to recover 95% by weight of vapors displaced from a vehicular fuel tank during refueling.

On April 22, 2003, Broward County Aviation Department submitted a petition for variance from the requirements of Rule 62-252.400, F.A.C. for a proposed consolidated rental car facility fueling area at the Ft. Lauderdale-Hollywood International Airport. The petitioner has estimated that 100% of the vehicles to be refueled at the consolidated rental car facility fueling area will be new vehicles equipped with on-board refueling vapor recovery (ORVR) technologies. The design recovery efficiency of installed ORVR systems is 95%. Further, the petitioner estimates the cost of installation of Stage II vapor recovery will be $250,000 to $370,000 initially with additional cost for maintaining the system. Given the estimated 100% use of the onboard refueling vapor recovery technologies for all vehicles and the high cost of complying with rule 62-252.400 F.A.C., the department has determined that the health and environmental concerns addressed by the underlying statue will be met without Stage II vapor recovery systems. Therefore the department has issued an Order Granting Variance to Broward County Aviation Department, relieving the county from requirements of Rule 62-252.400, F.A.C. Since this rule has previously been approved into Florida's SIP, the department is requesting approval of this variance as a revision to the SIP.

EPA received an adverse comment during the 30-day comment period and therefore withdrew the direct final rule on April 28, 2004 (69 FR 23109).

II. Today's Action

In this final rulemaking, EPA is responding to the adverse comment, and granting final approval to a department order granting a variance from Rule 62-252.400 to the Broward County Aviation Department.

III. Comment and Response

EPA received one adverse comment submitted by a citizen. A summary of the adverse comment and EPA's response is provided below.

Comment: The commenter asserted that we should not fall over backwards in letting aviation industry emit more and more pollution, and that we need to scrutinize carefully and very closely what we allow this industry to do to our air, water and soil. The commenter saw no proof in the proposed SIP approval that these rental cars will be equipped with ORVR controls having 95% control efficiency. The commenter stated that there must be a document in the record proving that this agency owns and uses 100% of these cars and proof that all of these cars capture 95% and meet the standards.”

Response: EPA believes that this revision to the SIP is approvable based on the June 23, 1993, EPA policy memorandum entitled, Impact of the Recent Onboard Decision on Stage II Requirements in Moderate Nonattainment Areas which indicates that a Stage II program is not a mandatory requirement for areas classified “moderate” or below, upon EPA's promulgation of regulations under section 202(a)(6) of the Clean Air Act for ORVR systems. States were required to adopt Stage II rules for all areas classified as “moderate” or worse under section 182(b)(3). However, 202(a)(6) states that “the requirements of section 182(b)(3) (relating to Stage II gasoline vapor recovery) for areas classified under section 181 as moderate for ozone shall not apply after promulgation of such standards [i.e., onboard controls]* * *” ORVR regulations were promulgated by EPA on April 6, 1994, (see 59 FR 16262, 40 CFR 86.001 and 40 CFR 86.098) and the requirements of these regulations are currently being phased-in. As a result the Clean Air Act no longer requires moderate areas to impose stage II controls under section 182(b)(3), and such areas may seek SIP revisions to remove such requirements from their SIPs, subject to section 110(l) of the Act.

In this circumstance, EPA does not believe that a determination of “widespread” use is necessary to provide for the variance for Stage II requirements for this area or the facility in question. In accordance with the June 23, 1993, EPA policy memorandum, the State has the option to implement a Stage II program in this area, subject to section 110(l), and as such, the State can provide this variance for the consolidated rental car facility. The area is attainment for the 8-hour ozone National Ambient Air Quality Standard, so EPA is able to approve this SIP revision.

IV. Final Action

EPA is granting final approval to the revisions to the Florida SIP described above because they are consistent with EPA guidance and the CAA, as amended in 1990.

V. 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 August 16, 2004. 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
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: June 3, 2004.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, 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 (K)—Florida

2. Section 52.520, is amended by adding a new entry at the end of the table in paragraph (d) for “Broward County Aviation Department” to read as follows:

§ 52.520

Identification of plan.

* * * * *

(d) * * *

EPA Approved Florida Source-Specific Requirements

Name of source	Permit number	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Broward County Aviation Department		August 15, 2003	June 17, 2004 [Insert citation of publication]	Order Granting Variance from Rule 62-252.400.