Proposed Rule2021-22716
Air Plan Limited Approval and Limited Disapproval; California; Air Resources Board; Volatile Organic Compounds
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 22, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing action on a revision to the California Air Resources Board (CARB) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) from vapor recovery systems of gasoline cargo tanks. We are proposing a limited approval and limited disapproval of a statewide rule to regulate this emission source under the Clean Air Act (CAA or the Act), and are also proposing to approve the recission of a different statewide rule from the California SIP that previously regulated this emission source. We are taking comments on this proposal and plan to follow with a final action.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 202 (Friday, October 22, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 202 (Friday, October 22, 2021)]
[Proposed Rules]
[Pages 58627-58630]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22716]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2021-0410; FRL-8791-01-Region 9]
Air Plan Limited Approval and Limited Disapproval; California;
Air Resources Board; Volatile Organic Compounds
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing action
on a revision to the California Air Resources Board (CARB) portion of
the California State Implementation Plan (SIP). This revision concerns
emissions of volatile organic compounds (VOCs) from vapor recovery
systems of gasoline cargo tanks. We are proposing a limited approval
and limited disapproval of a statewide rule to regulate this emission
source under the Clean Air Act (CAA or the Act), and are also proposing
to approve the recission of a different statewide rule from the
California SIP that previously regulated this emission source. We are
taking comments on this proposal and plan to follow with a final
action.
DATES: Comments must be received on or before November 22, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2021-0410 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: La Kenya Evans, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3245 or by
email at <a href="/cdn-cgi/l/email-protection#402536212e336e2c212b252e3921002530216e272f36"><span class="__cf_email__" data-cfemail="4e2b382f203d60222f252b20372f0e2b3e2f60292138">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What rule and rescission did the State submit?
B. Are there other versions of this rule?
C. What is the purpose of the submitted rule and rescission?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule and rescission?
B. Does the rule and rescission meet the evaluation criteria?
C. What are the rule deficiencies?
D. The EPA's Recommendations To Further Improve the Rule
E. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What rule and rescission did the State submit?
Table 1 lists the SIP revisions addressed by this proposal with the
dates they were locally acted on by the California Air Resources Board
(CARB). CARB submitted the SIP revisions to the EPA on August 22, 2018.
[[Page 58628]]
Table 1--Submitted SIP Revisions
----------------------------------------------------------------------------------------------------------------
Regulation title or Date of local
Regulation or provision subject action State requested action
----------------------------------------------------------------------------------------------------------------
California Code of Regulations, Certification of Adopted on 07/25/13 Addition to the SIP.
Title 17, Division 3, Chapter Vapor Recovery
1, Subchapter 8, Article 1, Systems for Cargo
Section 94014. Tanks.
Certification Procedure CP-204.. Certification Referenced in Addition to the SIP.
Procedure for Section 94014 and
Vapor Recovery adopted on 11/7/
Systems of Cargo 2014.
Tanks.
Test Procedure TP-204.1......... Determination of Referenced in Addition to the SIP.
Five Minute Static Section 94014 and
Pressure adopted on 11/7/
Performance of 2014.
Vapor Recovery
Systems of Cargo
Tanks.
Test Procedure TP-204.2......... Determination of Referenced in Addition to the SIP.
One Minute Static Section 94014 and
Pressure adopted on 05/27/
Performance of 2014.
Vapor Recovery
Systems of Cargo
Tanks.
Test Procedure TP-204.3......... Determination of Referenced in Addition to the SIP.
Leak(s). Section 94014 and
adopted on 11/7/
2014.
California Code of Regulations, Certification of Repealed on 06/29/ Recission from the SIP.
Title 17, Division 3, Chapter Vapor Recovery 1995.
1, Subchapter 8, Article 1, Systems--Gasoline
Section 94004. Delivery Tanks.
Method 2-5...................... Certification and Referenced in Recission from the SIP.
Test Procedures Section 94004 and
for Vapor Recovery effective on 09/1/
Systems of 1982.
Gasoline Delivery
Tanks.
----------------------------------------------------------------------------------------------------------------
On February 22, 2019, the submittal for CARB's California Code of
Regulations (CCR), Title 17, Division 3, Chapter 1, Subchapter 8,
Article 1, Section 94014 (Section 94014) and request to rescind CCR,
Title 17, Division 3, Chapter 1, Subchapter 8, Article 1, Section 94004
(Section 94004) were both deemed by operation of law to meet the
completeness criteria in 40 CFR part 51 Appendix V, which must be met
before formal EPA review.
B. Are there other versions of this rule?
Vapor recovery systems for tanker trucks (hereafter referred to as
``cargo tanks'') were previously regulated by Section 94004, which
required the use of Method 2-5 ``Certification of Vapor Recovery
Systems--Gasoline Delivery Tanks.'' Section 94004 was approved into the
SIP on July 8, 1982.\1\ CARB submitted an amended version of Method 2-5
on January 20, 1983, and EPA approved it into the SIP on May 3,
1984.\2\ On June 29, 1995, CARB repealed Section 94004 and adopted a
new statewide version of the rule at Section 94014, ``Certification of
Vapor Recovery Systems for Cargo Tanks.'' Section 94014 has since been
amended on multiple occasions, most recently on July 25, 2013, and
consists of a certification procedure and three test procedures that
are incorporated by reference. CARB submitted the revised rule,
certification procedure, and test procedures to the EPA on August 22,
2018, for inclusion into the SIP.
---------------------------------------------------------------------------
\1\ 47 FR 29668.
\2\ 49 FR 18829.
---------------------------------------------------------------------------
C. What is the purpose of the submitted rule and rescission?
Emissions of VOCs contribute to the production of ground-level
ozone and smog, which harm human health and the environment. Section
110(a) of the CAA requires states to submit regulations that control
VOC emissions.
Section 41954 of the California Health and Safety Code requires
that CARB ``[inspect] and [test] . . . certified vapor recovery systems
upon installation during the permit process and [conduct] regular
inspections to check that systems are operating as certified.'' Section
94014 allows gasoline vapor recovery systems for cargo tanks to be
certified in accordance with Certification Procedure CP-204,
``Certification Procedure for Vapor Recovery Systems of Cargo Tanks''
(CP-204). The rule incorporates CP-204 by reference. Section 94014 also
incorporates by reference three test procedures: Test Procedure TP-
204.1, ``Determination of Five Minute Static Pressure Performance of
Vapor Recovery Systems of Cargo Tanks'' (TP-204.1), Test Procedure TP-
204.2, ``Determination of One Minute Static Pressure Performance of
Vapor Recovery Systems of Cargo Tanks'' (TP-204.2), and Test Procedure
TP-204.3, ``Determination of Leak(s)'' (TP-204.3).
CP-204 describes the process for certifying cargo tanks with a
system that recovers vapors during the loading and unloading of
gasoline. This certification procedure establishes performance
standards or specifications for cargo tanks, including trucks and
trailers that transport gasoline. TP-204.1 is a detailed test procedure
used to determine the five-minute static pressure associated with the
dispensing of any fluid. This test procedure is written to reflect
application to the hydrocarbon vapors associated with the dispensing of
gasoline tested annually. TP-204.2 is used to determine the daily
static pressure performance standard, or one-minute standard,
associated with the dispensing of any fluid. TP-204.2 is written to
reflect application to the hydrocarbon vapors associated with the
dispensing of gasoline. TP-204.3 is intended to locate and classify
leaks only, and not as a direct measure of mass emission rates from
individual sources. This test procedure is used to determine the leak-
tightness of vapor control systems used in (a) loading of gasoline
cargo tanks; (b) loading without taking the delivery tank out of
service; (c) at gasoline terminals and bulk plants at any time; and (d)
when the system does not create back-pressure in excess of the pressure
limits of the cargo tank certification test. The EPA's technical
support document (TSD) has more information about this rule.
The rescission of Section 94004 will remove the rule from the SIP
and Section 94014 will replace it.
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the rule and rescission?
Rules in the SIP must be enforceable (see CAA section 110(a)(2)),
must not interfere with applicable requirements concerning attainment
and reasonable further progress or other CAA requirements (see CAA
section 110(l)),
[[Page 58629]]
and must not modify certain SIP control requirements in nonattainment
areas without ensuring equivalent or greater emissions reductions (see
CAA section 193).
Generally, SIP rules must require Reasonably Available Control
Technology (RACT) for each category of sources covered by a Control
Techniques Guidelines (CTG) document as well as each major source of
VOCs in ozone nonattainment areas classified as Moderate or above (see
CAA section 182(b)(2)).
Guidance and policy documents that we used to evaluate
enforceability, revision/relaxation and rule stringency requirements
for the applicable criteria pollutants include the following:
1. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11,
1990).
2. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
3. ``Control of Volatile Organic Compound Leaks from Gasoline Tank
Trucks and Vapor Collection Systems,'' EPA-450/2-78-051, December 1978.
4. 40 CFR part 63.11092(f)(1), ``Standards of Performance for Bulk
Gasoline Terminals,'' 76 FR 4156 (January 24, 2011).
5. 40 CFR part 60.501, ``National Emission Standards for Hazardous
Air Pollutants for Source Category: Gasoline Distribution Bulk
Terminals, Bulk Plants, and Pipeline Facilities,'' 48 FR 37590 (August
18, 1983).
6. Maricopa County Air Pollution Control Regulations Rule 352,
``Gasoline Cargo Tank Testing and Use,'' 60 FR 46024 (September 5,
1995).
7. Maryland Department of Environment Rule 26.11.13.05, ``Gasoline
Leaks from Tank Trucks'' 80 FR 45892 (August 3, 2015).
8. Maryland Department of Environment Method 1008, ``Gasoline Vapor
Leak Detection Procedure by Combustible Gas Detector,'' incorporated by
reference COMAR 26.11.01.04C, 78 FR 5290 (January 25, 2013).
9. Texas Commission on Environmental Quality Rule 115.235,
``Approved Test Methods'' 65 FR 79745 (December 20, 2000).
10. Illinois Environmental Protection Agency Rule 215.584,
``Gasoline Delivery Vessels,'' 55 FR 26814 (July 29, 1990).
B. Does the rule and rescission meet the evaluation criteria?
The replacement of Section 94004 by Section 94014 meets CAA
requirements, and Section 94014 is consistent with relevant guidance
regarding enforceability, RACT, and SIP revisions. Section 94014 is
more stringent than Section 94004 as it includes a certification
procedure that describes the instructions for determining performance
standards, specifications, and test procedures for vapor recovery
systems. In addition, Section 94014 is more stringent than the EPA's
1978 CTG and is as stringent as comparable rules for this source
category established in other states. Therefore, Section 94014
implements RACT. The TSD has more information on our evaluation.
C. What are the rule deficiencies?
The director's discretion in Section 94014 does not satisfy the
requirements of section 110 of the Act and prevents full approval of
the SIP revision. Documents submitted for inclusion into the SIP should
not include unbounded director's discretion that allows the State to
approve alternatives to the applicable SIP without following the SIP
revision process described in CAA section 110. CP-204 Section 5.4
allows the CARB Executive Officer to approve an alternative test
procedure that meets the equivalency criteria established by EPA Method
301. This is acceptable as EPA Method 301 is ``a set of procedures . .
. to validate a candidate test method as an alternative to a required
test method based on established precision and bias criteria.'' \3\ For
situations where Method 301 is not directly applicable, CP-204 Section
5.4 allows the CARB Executive Officer, without approval from the EPA,
to ``. . . establish equivalence based on the concepts of comparison
with established method and statistical analysis of bias and
variance.'' This authority is then incorporated by reference in TP-
204.1, TP-204.2, and TP-204.3. Without further specificity regarding
the criteria the Executive Officer will use to determine when such
alternative test procedures, for which Method 301 is not applicable,
will be approved, CP-204 Section 5.4 represents an instance of
unbounded director's discretion and constitutes a SIP deficiency. The
TSD has more information regarding this deficiency.
---------------------------------------------------------------------------
\3\ EPA Method 301, ``Field Validation of Pollutant Measurement
Methods from Various Waste Media,'' 85 FR 63394 (October 7, 2020).
---------------------------------------------------------------------------
D. The EPA Recommendations To Further Improve the Rule
The EPA recommends revising Section 94014 to address the deficiency
discussed above. Such revisions could include additional detail
regarding how to evaluate alternative test procedure requests when
Method 301 is not applicable, or could add language resembling federal
enforceability sections in CARB's consumer products regulations to
further limit the extent of the Executive Officer's authority (17 CCR
section 94506.5 and 17 CCR section 94517).<SUP>4 5</SUP> The TSD
includes other recommendations for the next time the state agency
modifies the rule.
---------------------------------------------------------------------------
\4\ 74 FR 57074 (November 4, 2009).
\5\ 79 FR 62346 (October 17, 2014).
---------------------------------------------------------------------------
E. Public Comment and Proposed Action
As authorized in section 110(k)(3) of the Act, the EPA is proposing
a limited approval and limited disapproval of the submitted rule. The
limited disapproval for CP-204, Section 5.4 and its reference in TP-
204.1, TP-204.2, and TP-204.3 is based on the enforceability issue
identified in section (II)(C) of this notice. We will accept comments
from the public on this proposal until November 22, 2021. If finalized,
this action would incorporate the submitted rule into the SIP,
including those provisions identified as deficient. If we finalize this
disapproval, CAA section 110(c) would require the EPA to promulgate a
federal implementation plan within 24 months unless we approve
subsequent SIP revisions that correct the deficiencies identified in
the final approval. In addition, final disapproval would trigger the
offset sanction in CAA section 179(b)(2) 18 months after the effective
date of a final disapproval, and the highway funding sanction in CAA
section 179(b)(1) six months after the offset sanction is imposed. A
sanction will not be imposed if the EPA determines that a subsequent
SIP submission corrects the deficiencies identified in our final action
before the applicable deadline. The EPA intends to work with CARB to
correct the deficiency in a timely manner.
Note that the submitted rule has been adopted by CARB, and the
EPA's final limited disapproval would not prevent the state agency from
enforcing it. The limited disapproval also would not prevent any
portion of the rule from being incorporated by reference into the
federally enforceable SIP as discussed in a July 9, 1992 EPA memo found
at: <a href="https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf">https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf</a>.
III. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with
[[Page 58630]]
requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference Section 94014 and the associated certification procedure and
test procedures as described in Table 1 of this preamble, and proposing
to remove Section 94004 and Method 2-5 also as described in Table 1
from the SIP. The EPA has made, and will continue to make, these
materials available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA
Region IX Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">http://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 13, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-22716 Filed 10-21-21; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 22, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.