Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, El Dorado County Air Pollution Control District

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 033-0171; FRL-6446-2]

Approval and Promulgation of Implementation Plans; California

State Implementation Plan Revision, El Dorado County Air Pollution

Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval

of a revision to the California State Implementation Plan (SIP)

proposed in the Federal Register on April 4, 1994. This final action

will incorporate these rules into the federally approved SIP. The

intended effect of finalizing this action is to regulate emissions of

volatile organic compounds (VOCs) in accordance with the requirements

of the Clean Air Act, as amended in 1990 (CAA or the Act). The revised

rules control VOC emissions from the loading, unloading, and storage of

petroleum products. EPA is finalizing a simultaneous limited approval

and limited disapproval under CAA provisions regarding EPA action on

SIP submittals and general rulemaking authority because these

revisions, while strengthening the SIP, also do not fully meet the CAA

provisions regarding plan submissions and requirements for

nonattainment areas. As a result of this limited disapproval EPA will

be required to impose highway funding or emission offset sanctions

under the CAA unless the State submits and EPA approves corrections to

the identified deficiencies within 18 months of the effective date of

this disapproval. Moreover, EPA will be required to promulgate a

Federal implementation plan (FIP) unless the deficiencies are corrected

within 24 months of the effective date of this disapproval.

EFFECTIVE DATE: This action is effective on November 1, 1999.

ADDRESSES: Copies of the rule revisions and EPA's evaluation report for

each rule are available for public inspection at EPA's Region IX office

during normal business hours. Copies of the submitted rule revisions

are also available for inspection at the following locations:

Rulemaking Office, (AIR-4), Air Division, U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105

Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,

S.W., Washington, D.C. 20460

California Air Resources Board, Stationary Source Division, Rule

Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814

El Dorado Air Pollution Control District, 7553 Green Valley Road,

Placerville, CA 95667-4197.

FOR FURTHER INFORMATION CONTACT: Max Fantillo, Rulemaking Office, (AIR-

4), Air Division, U.S. Environmental Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1183.

SUPPLEMENTARY INFORMATION:

I. Applicability

EPA is finalizing a limited approval and limited disapproval of a

revision to the California SIP submitted by El Dorado County Air

Pollution Control District (EDCAPCD) entitled Regulation IX, Air Toxic

Control Measures, Section A, Benzene, Rules 900 through 914. This

regulation was submitted by the California Air Resources Board (CARB)

to EPA on April 5, 1991.

II. Background

On April 4, 1994 in 64 FR 15686, EPA proposed granting a limited

approval and limited disapproval of EDCAPCD Regulation IX, Air Toxic

Control Measure, Section A, Benzene, (Rules 900 through 914) into the

California SIP. These 900 series rules were adopted by EDCAPCD on

September 18, 1990 and submitted by the CARB to EPA on April 5, 1991.

The rules were submitted in response to EPA's 1988 SIP Call and the CAA

section 182(a)(2)(A) requirement that nonattainment areas fix their

reasonably available control technology (RACT) rules for ozone in

accordance with EPA guidance that interpreted the requirements of the

pre-amendment Act. A detailed discussion of the background for each of

the above rules and nonattainment areas is provided in the proposed

rule (PR) cited above.

EPA has evaluated all of the above rules for consistency with the

requirements of the CAA and EPA regulations and EPA's interpretation of

these requirements as expressed in the various EPA policy guidance

documents referenced in the PR. EPA is finalizing the limited approval

of these rules in order to strengthen the SIP and finalizing the

limited disapproval requiring the correction of the remaining

deficiencies. In summary, the deficiencies relate to the lack of a

specific definition of the facilities to which the rules apply,

improper definition of test methods, Control Officer discretion to

require unspecified control equipment, and a higher throughput

exemption than allowed by section 182(b)(3). These deficiencies must be

corrected pursuant to the requirements of sections 182(a)(2)(A) and

part D of the CAA. A detailed discussion of the rule provisions and

evaluations has been provided in the PR and in technical support

document (TSD) available at EPA's Region IX office (TSD dated April 30,

1993, Regulation IX, Rules 900 through 914).

III. Response to Public Comments

A 30-day public comment period was provided in 59 FR 15686; EPA did

not receive any comments.

IV. EPA Action

EPA is finalizing a limited approval and limited disapproval of the

above-referenced rules. The limited approval of these rules is being

finalized under section 110(k)(3) in light of EPA's authority pursuant

to section 301(a) to adopt regulations necessary to further air quality

by strengthening the SIP. The approval is limited in the sense that the

rules strengthen the SIP. However, the rules do not meet the section

182(a)(2)(A) CAA requirement because of the rule deficiencies which

were discussed in the PR. Thus, in order to strengthen the SIP, EPA is

granting limited approval of these rules under sections 110(k)(3) and

301(a) of the CAA. This action approves the rules into the SIP as

federally enforceable rules.

[[Page 53211]]

At the same time, EPA is finalizing the limited disapproval of

these rules because they contain deficiencies that have not been

corrected as required by section 182(a)(2)(A) of the CAA, and, as such,

the rules do not fully meet the requirements of Part D of the Act. As

stated in the proposed rule, upon the effective date of this final

rule, the 18 month clock for sanctions and the 24 month FIP clock will

begin. Sections 179(a) and 110(c). If the State does not submit the

required corrections and EPA does not approve the submittal within 18

months of the effective date of the final rule, either the highway

sanction or the offset sanction will be imposed at the 18 month mark.

It should be noted that the rules covered by this FR have been adopted

by the EDCAPCD and are currently in effect in the EDCAPCD. EPA's

limited disapproval action will not prevent a EDCAPCD or EPA from

enforcing these rules.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, Regulatory

Planning and Review.

B. Executive Order 12875

Under Executive Order 12875, Enhancing the Intergovernmental

Partnership, EPA may not issue a regulation that is not required by

statute and that creates a mandate upon a State, local or tribal

government, unless the Federal government provides the funds necessary

to pay the direct compliance costs incurred by those governments, or

EPA consults with those governments. If EPA complies by consulting,

Executive Order 12875 requires EPA to provide to the Office of

Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of State, local and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

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 is

does not involve decisions intended to mitigate environmental health or

safety risks.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with

Indian Tribal Governments, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do 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. 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 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 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

annual 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 annual 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

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governments, or to the private sector, result from this action.

G. 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. This rule is not a

``major'' rule as defined by 5 U.S.C. 804(2).

H. 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 November 30, 1999. 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Reporting and recordkeeping requirements, Volatile organic compound.

Nora L. McGee,

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)(183)(H)(1) to

read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(183) * * *

(i) * * *

(H) El Dorado County Air Pollution Control District.

(1) Regulation IX, Rules 900 through 914, adopted September 18,

1990.

* * * * *

[FR Doc. 99-25568 Filed 9-30-99; 8:45 am]

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