[Federal Register: January 22, 2004 (Volume 69, Number 14)]
[Rules and Regulations]
[Page 3012-3015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja04-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA264-0430; FRL-7607-5]
Revisions to the California State Implementation Plan, San
Joaquin Valley Unified Air Pollution Control District, Yolo-Solano Air
Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing a limited approval and limited disapproval
of revisions to the San Joaquin Valley Unified Air Pollution Control
District (SJVUAPCD) and Yolo-Solano Air Quality Management District
(YSAQMD) portion of the California State Implementation Plan (SIP).
This action was proposed in the Federal Register on April 25, 2003, and
concerns volatile organic compound (VOC) emissions from industries
storing, loading, and transfering organic liquids as part of their
operations. Under authority of the Clean Air Act as amended in 1990
(CAA or the Act), this action simultaneously approves these local rules
that regulates these emission sources and directs California to correct
rule deficiencies.
EFFECTIVE DATE: This rule is effective on February 23, 2004.
ADDRESSES: You can inspect copies of the administrative record for this
action at EPA's Region IX office during normal business hours by
appointment. You can inspect copies of the submitted SIP revisions by
appointment at the following locations:
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105-3901;
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail
Code 6102T), Washington, DC 20460;
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California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 1001 ``I'' Street, Sacramento, CA 95814;
San Joaquin Valley Unified Air Pollution Control District, 1990 East
Gettysburg Street, Fresno, CA 93726; and,
Yolo-Solano Air Quality Management District, 1947 Galileo Court, Suite
103, Davis, CA 95616.
A copy of the rule 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 Web site and may not contain the same version of the rule that
was submitted to EPA.
FOR FURTHER INFORMATION CONTACT: Jerald S. Wamsley, EPA Region IX, at
either(415) 947-4111, or Wamsley.Jerry@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Proposed Action
On April 25, 2003 (68 FR 20356), EPA proposed a limited approval
and limited disapproval of the following rules that were submitted for
incorporation into the California SIP.
Table 1.--Submitted Rules
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Local agency Rule No. Rule title Adopted Submitted
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SJVUAPCD.................................. 4623 Storage of Organic Liquids..... 12/20/01 03/15/02
YSAQMD.................................... 2.21 Organic Liquid Loading......... 06/12/02 08/06/02
----------------------------------------------------------------------------------------------------------------
We proposed a limited approval because we determined that these
rules improve the SIP and are largely consistent with the relevant CAA
requirements. Simultaneously, we proposed a limited disapproval because
some provisions within each rule conflict with section 110 and part D
of the Act. These provisions are reviewed below.
Within SJVUAPCD Rule 4623, the provisions discussed below conflict
with section 110 of the Act and raise enforceability issues preventing
EPA's full approval of the SIP revision.
[sbull] Section 5.6.1 is unclear on two points. First, it
references requirements in section 6.4.6; these requirements are
unclear in how they apply to section 5.6.1. For example, no VOC control
requirement is clearly specified. Second, a typographical error exists
in how section 5.6.1 references either section 6.4.6 or section 6.4.7.
[sbull] Section 7.1 has a missing compliance date and conflicting
dates in its last sentence.
Within YSAQMD Rule 2.21, the provisions discussed below conflict
with section 110 of the Act and raise rule enforceability issues
preventing EPA's full approval of the SIP revision. In part, Rule
2.21's deficiencies relate to an EPA policy described within a
memorandum dated September 20, 1999, entitled ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Start-up,
and Shutdown'' (the Excess Emissions Policy).
Taken together section 111 and section 501 are inconsistent with
the EPA policy on exemptions for excess emissions during malfunctions,
start-up and shutdown. Furthermore, the Air Pollution Control Officer
(APCO) discretion within section 111 for approving maintenance plans is
a case of unbounded ``director's discretion'' as there are no criteria
delimiting the APCO's authority for approving maintenance plans. These
provisions violate EPA requirements concerning enforceability and and
rule relaxations.
Our proposed action contains more information on the basis for this
rulemaking and on our evaluation of these submittals.
II. Public Comments and EPA Responses
EPA's proposed action provided a 30-day public comment period.
During this period, we received no comments on our proposed action.
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 limited
approval of the submitted rules. This action incorporates the submitted
rules into the California SIP, including those provisions identified as
deficient. As authorized under section 110(k)(3), EPA is finalizing
simultaneously a limited disapproval of each rule. As a result,
sanctions will be imposed unless EPA approves subsequent SIP revisions
that correct each rule's deficiencies within 18 months of the effective
date of this action. These sanctions will be imposed under section 179
of the Act according to 40 CFR 52.31. 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. Note SJVUAPCD Rule 4623 and YSAQMD Rule 2.21 have
been adopted by these local air districts, and EPA's final limited
disapproval does not prevent the local agency from enforcing it. Also,
please note that the sanctions process for each of these rules is
separate and distinct from the other; none of the language above should
be construed otherwise.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
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.)
C. 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 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 approve 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.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal
[[Page 3014]]
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).
D. Unfunded Mandates Reform Act
Under sections 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
the 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 approves 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.
E. Executive Order 13132, Federalism
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 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. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. 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. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
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.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
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.
I. 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.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
J. Congressional Review Act
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). This rule will be effective February 23, 2004.
K. 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 March 22, 2004. Filing a
petition for reconsideration by
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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: December 18, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraphs (c)(297)(i)(E)(2) and
(c)(303)(i)(B)(2) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(297) * * *
(i) * * *
(E) * * *
(2) Rule 4623, adopted on April 11, 1991 and amended on December
20, 2001.
* * * * *
(303) * * *
(i) * * *
(B) * * *
(2) Rule 2.21, adopted on March 23, 1994 and amended on June 12,
2002.
* * * * *
[FR Doc. 04-1232 Filed 1-21-04; 8:45 am]
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