Air Plan Limited Approval and Limited Disapproval; California; Air Resources Board; Volatile Organic Compounds, 58627-58630 [2021-22716]
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Federal Register / Vol. 86, No. 202 / Friday, October 22, 2021 / Proposed Rules
without change in eCRB at https://
app.crb.gov, including any personal
information provided.
Docket: For access to the docket to
read background documents or
comments received, go to eCRB at
https://app.crb.gov and perform a case
search for docket 21–CRB–0001–PR
(2023–2027).
FOR FURTHER INFORMATION CONTACT:
Anita Blaine, CRB Program Specialist,
202–707–7658, crb@loc.gov.
SUPPLEMENTARY INFORMATION: On June
25, 2021, the Copyright Royalty Judges
published for comment proposed
regulations (arising from a partial
settlement) that set rates and terms
applicable during the period beginning
January 1, 2023, and ending December
31, 2027, for the section 115 statutory
license for making and distributing
phonorecords of nondramatic musical
works. Comments were due by July 26,
2021. 86 FR 33601 (Jun. 25, 2021). As
some filers experienced technical
difficulties filing their comments in
eCRB, the Judges extended the deadline
for filing comments to August 10, 2021.
86 FR 40793 (July 29, 2021).
On August 10, 2021, the final day of
the extended comment period, the
National Music Publishers’ Association,
Inc., (‘‘NMPA’’) and Nashville
Songwriters Association International
(‘‘Copyright Owner Participants’’), and
Sony Music Entertainment, UMG
Recordings, Inc. and Warner Music
Group Corp. (‘‘Joint Record Company
Participants’’), jointly submitted
comments regarding the proposed rule
(‘‘Joint Submission’’). Attached to the
Joint Submission, as Exhibit C, was a
Memorandum of Understanding
(‘‘MOU’’) between the Joint Record
Company Participants and the
Recording Industry Association of
America, Inc., on the one hand, and
NMPA and certain music publishing
companies, on the other.
The Joint Submission included
arguments that the MOU is irrelevant to
the Judges’ consideration of the
proposed partial settlement and
proposed regulations and that the MOU
does not call into question the
reasonableness of the proposed partial
settlement and proposed regulations.
Because interested parties other than
those who submitted the Joint
Submission may have been unable to
adequately view or comment upon the
MOU prior to the close of the Judges’
extended comment period, the Judges
are reopening the comment period. The
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Judges will allow 30 days for comments
regarding the impact, if any, that the
MOU should have on the Judges’
consideration of whether the proposed
partial settlement and proposed
regulations provide a reasonable basis
for setting statutory rates and terms.
Dated: October 19, 2021.
Jesse M. Feder,
Chief Copyright Royalty Judge.
[FR Doc. 2021–23097 Filed 10–21–21; 8:45 am]
BILLING CODE 1410–72–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2021–0410; FRL–8791–01Region 9]
Air Plan Limited Approval and Limited
Disapproval; California; Air Resources
Board; Volatile Organic Compounds
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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 https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. 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)
SUMMARY:
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58627
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
https://www.epa.gov/dockets/
commenting-epa-dockets. 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.
La
Kenya Evans, EPA Region IX, 75
Hawthorne St., San Francisco, CA
94105. By phone: (415) 972–3245 or by
email at evans.lakenya@epa.gov.
FOR FURTHER INFORMATION CONTACT:
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.
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Federal Register / Vol. 86, No. 202 / Friday, October 22, 2021 / Proposed Rules
TABLE 1—SUBMITTED SIP REVISIONS
Regulation or provision
Regulation title or subject
Date of local action
California Code of Regulations, Title Certification of Vapor Recovery Sys17, Division 3, Chapter 1, Subtems for Cargo Tanks.
chapter 8, Article 1, Section 94014.
Certification Procedure CP–204 ....... Certification Procedure for Vapor
Recovery Systems of Cargo
Tanks.
Test Procedure TP–204.1 ................. Determination of Five Minute Static
Pressure Performance of Vapor
Recovery Systems of Cargo
Tanks.
Test Procedure TP–204.2 ................. Determination of One Minute Static
Pressure Performance of Vapor
Recovery Systems of Cargo
Tanks.
Test Procedure TP–204.3 ................. Determination of Leak(s) ..................
California Code of Regulations, Title Certification of Vapor Recovery Sys17, Division 3, Chapter 1, Subtems—Gasoline Delivery Tanks.
chapter 8, Article 1, Section 94004.
Method 2–5 ....................................... Certification and Test Procedures
for Vapor Recovery Systems of
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.
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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
2 49
FR 29668.
FR 18829.
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Adopted on 07/25/13 ........................
Addition to the SIP.
Referenced in Section 94014 and
adopted on 11/7/2014.
Addition to the SIP.
Referenced in Section 94014 and
adopted on 11/7/2014.
Addition to the SIP.
Referenced in Section 94014 and
adopted on 05/27/2014.
Addition to the SIP.
Referenced in Section 94014 and
adopted on 11/7/2014.
Repealed on 06/29/1995 ..................
Addition to the SIP.
Referenced in Section 94004 and
effective on 09/1/1982.
Recission from the SIP.
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
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Recission from the SIP.
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)),
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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,
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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.
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
3 EPA Method 301, ‘‘Field Validation of Pollutant
Measurement Methods from Various Waste Media,’’
85 FR 63394 (October 7, 2020).
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58629
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).4 5 The TSD includes other
recommendations for the next time the
state agency modifies the rule.
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:
https://www.epa.gov/sites/production/
files/2015-07/documents/procsip.pdf.
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
4 74
5 79
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FR 57074 (November 4, 2009).
FR 62346 (October 17, 2014).
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Federal Register / Vol. 86, No. 202 / Friday, October 22, 2021 / Proposed Rules
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
https://www.regulations.gov 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 https://www.epa.gov/lawsregulations/laws-and-executive-orders.
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)
lotter on DSK11XQN23PROD with PROPOSALS1
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
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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
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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
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2021–0638; FRL–9101–01–
R9]
Clean Air Plans; Base Year Emissions
Inventories for the 2015 Ozone
Standards; Arizona; Phoenix-Mesa and
Yuma Nonattainment Areas
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve,
under the Clean Air Act (CAA),
revisions to the Arizona State
Implementation Plan (SIP) concerning
the base year emissions inventory
requirements for the Phoenix-Mesa
ozone nonattainment area (‘‘PhoenixMesa’’) and Yuma ozone nonattainment
area (‘‘Yuma’’) for the 2015 ozone
national ambient air quality standards
(NAAQS or ‘‘standard’’).
DATES: Any comments must arrive by
November 22, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2021–0638 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. 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.
SUMMARY:
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]]>Agencies
[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 [www.gpo.gov]
[FR Doc No: 2021-22716]
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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 https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. 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 https://www.epa.gov/dockets/commenting-epa-dockets. 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 [email protected].
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.
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\1\ 47 FR 29668.
\2\ 49 FR 18829.
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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).4 5 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).
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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: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.
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 https://www.regulations.gov 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 https://www.epa.gov/laws-regulations/laws-and-executive-orders.
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
