[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.

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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
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                                  Regulation title or     Date of local
     Regulation or provision            subject               action               State requested action
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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.
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    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.
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    \3\ EPA Method 301, ``Field Validation of Pollutant Measurement 
Methods from Various Waste Media,'' 85 FR 63394 (October 7, 2020).
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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.
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    \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 http://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]
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