E6-18167. Revisions to the California State Implementation Plan, Yolo-Solano Air Quality Management District

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is finalizing approval of revisions to the Yolo-Solano Air Quality Management District (YSAQMD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the Federal Register on February 1, 2006 and concern volatile organic compound (VOC) emissions from organic liquid storage and transfer facilities. We are approving YSAQMD Rule 2.21 that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).

EFFECTIVE DATE:

This rule is effective on November 30, 2006.

ADDRESSES:

EPA has established docket number EPA-R09-OAR-2005-0557e for this action. The index to the docket is available electronically at 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:

Jerry Wamsley, EPA Region IX, at either [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

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

I. Proposed Action

On February 1, 2006 (71 FR 5172), EPA took direct final action with a concurrent proposal to approve the following rule into the California SIP.

Local agency	Rule	Rule title	Adopted	Submitted
YSAQMD	2.21	Organic Liquid Storage & Transfer	09/14/05	10/20/05

We took direct final action to approve this rule because we determined that it complied with the relevant CAA requirements and we did not expect adverse public comment. Our direct final action contains more information on this rule and our evaluation.

However, we did receive adverse public comments on our direct final approval action. Consequently, we withdrew our direct final action on April 11, 2006 (see 71 FR 18219). Our February 1, 2006 concurrent proposed action (see 71 FR 5211) provides the basis for today's final action.

II. Public Comments and EPA Responses.

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from David Moralez, a private citizen, in a letter dated March 3, 2006, sent and received via electronic mail March 3, 2006.

Mr. Moralez said that by approving into the SIP the September 14, 2005 amendments to Rule 2.21, EPA will remove two provisions, Section 502.4 concerning annual bulk plant compliance monitoring and Section 607 specifying a test method for determining bulk plant compliance with Section 309.1's vapor recovery standard; thereby relaxing significantly existing SIP requirements.

Regarding the SIP relaxation issue, we acknowledge that an annual compliance testing requirement, in Section 502.4, and its related test method, in Section 607, is being removed from the SIP. However, we disagree that removing these provisions represent a significant or problematic relaxation of the SIP.

Bulk plants are required to maintain continuous compliance with the Section 309 requirements and these requirements are unchanged. Under the provisions of Section 309, either CARB or YSAQMD may require a bulk plant recertify or retest a vapor recovery system at any time using CP-202 “Certification Procedure for Vapor Recovery Systems of Bulk Plants”, TP-202.1 “Determination of Emission Factor of Vapor Recovery Systems of Bulk Plants,” or Executive Order G-846 “Screening Test Procedures for Certification of Gasoline Bulk Vapor Recovery Systems”.

Furthermore, at any time, YSAQMD may inspect a bulk plant using the test methods described in Sections 605 and 608. Section 605 includes test methods for determining leaks and whether or not a bulk plant meets the “gas tight” requirements of Section 309.2. Section 608 describes several test methods for determining vapor recovery system efficiency, including a reference to the applicable CARB Executive Orders needed to determine compliance and an annual compliance check using a static pressure decay test.

Should a bulk plant fail any of these tests, YSAQMD can order the source to do further compliance testing using either the methods in the rule, or TP-202.1. In turn, YSAQMD can request that CARB recertify the source, using either CARB E.O. G-846, or CP-201 once any corrective repairs have been made.

In sum, we have reviewed Rule 2.21's bulk plant requirements, the test methods remaining within the rule, related CARB Executive orders, as well as CARB and YSAMQD legal authority and find that the rule is enforceable with adequate provisions to determine compliance despite the removal of Sections 502.4 and 607. Consequently, we find that the YSAQMD amendments to Rule 2.21 are consistent with the Clean Air Act, section 110(l) and do not significantly relax the SIP.

Mr. Moralez also commented that EPA did not follow its guidance in proposing to approve Rule 2.21. First, the 2004 SIP approved rule included an annual source testing requirement consistent with federal guidance, Control Technique Guideline (CTG) document EPA-450/77-035. Second, deleting CARB test method TP-202.1 (formerly within Section 607) from the SIP approved rule does not meet EPA guidance requiring that SIP rules specify all sampling and analysis methods needed to determine compliance with the rule.

We examined the CTG entitled “Guideline Series: Control of Volatile Organic Compound Emissions from Bulk Plants,” EPA-450/2-77-035, December 1977 and found that this CTG does not contain an annual source (compliance) test requirement consistent with the mass balance methodology cited in Section 502.4 using California Air Resources Board (CARB) test method TM-202.1. Furthermore, we found no reference within the CTG to any annual source test requirement of any kind. Consequently, removing Section 502.4 from the rule and the SIP does not make the rule inconsistent with the CTG and the requirements of Section 182(c)(3) of the CAA.

Regarding Mr. Moralez's assertion that the rule does not include all sampling and analysis methods needed to determine compliance, as we discussed earlier, we believe that existing test methods and compliance checks within the rule are adequate to determine compliance and enforce Section 309's bulk plant requirements.

Finally, Mr. Moralez asserted several times that YSAQMD's action to amend Rule 2.21 and remove Section 502.4 and Section 607 is unsupported and, consequently, EPA cannot approve it.

However, we found that YSAQMD's amendments are supported adequately, allowing EPA consideration of this SIP submittal. The YSAQMD's August 10, 2005 staff report and September 13, 2005 addendum to its staff report explain its revisions to the rule. The September 13, 2005 addendum to the staff report addressed the amendments to the rule concerning bulk plants and Mr. Moralez's comments to the YSAQMD, in particular. These rule amendments and supporting material received adequate public notice and were duly adopted by the YSAQMD governing board.

III. EPA Action

No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP. On January 22, 2004 (69 FR 3012), we published a limited approval and limited disapproval of YSAQMD Rule 2.21 as adopted locally on June 12, 2002 and submitted by the State on August 6, 2002. This disapproval action started a sanctions clock for imposition of offset sanctions on August 22, 2005 and highway sanctions 6 months later, pursuant to section 179 of the Clean Air Act (CAA) and our regulations at 40 CFR 52.31. In our February 1, 2006 proposal, we found that YSAQMD's September 14, 2005 revisions to Rule 2.21 corrected the deficiencies identified in our limited disapproval action. Because no comments were submitted that change our February 1, 2006 assessment of Rule 2.21, all sanctions and Federal Implementation Plan obligations associated with our January 22, 2004 limited disapproval of the rule will be terminated on the effective date of this final rule approval action.

IV. 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 (Pub. L. 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 January 2, 2007. 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: July 24, 2006.

Alexis Strauss,

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 52.220 is amended by adding paragraph (c)(342)(i)(A) and (c)(342)(i)(A)( 1) to read as follows:

§ 52.220

Identification of plan.

* * * * *

(c) * * *

(342) * * *

(i) * * *

(A) Yolo-Solano Air Quality Management District.

(1) Rule 2.21, adopted on March 23, 1994, and amended on September 14, 2005.

* * * * *