[Federal Register Volume 59, Number 81 (Thursday, April 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10111]


[Federal Register: April 28, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IN29-1-5822; FRL 4875-5]


Approval and Promulgation of Implementation Plans; Indiana

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The United States Environmental Protection Agency (USEPA) is 
taking action to approve a requested revision to the Indiana State 
Implementation Plan (SIP) for ozone. USEPA's action is based upon a 
revision request which was submitted by the State to satisfy the 
requirements of the Clean Air Act (Act), which requires certain ozone 
nonattainment areas to require specified gasoline dispensing facilities 
to install and operate Stage II vapor recovery equipment. The subject 
areas established in the SIP revision are the Indiana portion of the 
Chicago ozone nonattainment area (Lake and Porter Counties) and the 
Indiana portion of the Louisville, Kentucky ozone nonattainment area 
(Clark and Floyd Counties). USEPA's action is being taken without prior 
proposal.

DATES: This final rule will be effective June 27, 1994, unless notice 
is received by May 31, 1994, that someone wishes to submit adverse 
comments. If the effective date is delayed, timely notice will be 
published in the Federal Register.

ADDRESSES: Copies of the requested SIP revision, technical support 
documents and public comments received are available at the following 
address: United States Environmental Protection Agency, Region 5, Air 
and Radiation Division, Regulation Development Branch, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.
    This SIP revision is also available for inspection at the Office of 
Air and Radiation (OAR) Docket and Administration Center (Air Docket 
6102), room M1500, U.S. Environmental Protection Agency, 401 M Street 
SW., Washington, DC 20460, (202) 260-7548.
    Comments on this rulemaking should be addressed to: J. Elmer 
Bortzer, Chief, Regulation Development Section, Regulation Development 
Branch (5AR-18J), United States Environmental Protection Agency, Region 
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:
Francisco J. Acevedo, Environmental Engineer, Regulation Development 
Section, Regulation Development Branch (5AR-18J), United States 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6061. Anyone wishing to come to 
Region 5 offices should contact Francisco J. Acevedo first and 
reference file IN29-1-5822.

SUPPLEMENTARY INFORMATION: 

I. Background/Summary of State Submittal

    On February 25, 1994, the Indiana Department of Environmental 
Management (IDEM) submitted to USEPA Stage II Vapor Recovery Rules: 
Amendments to 326 IAC 8-1-0.5 and 326 IAC 8-4-6 as requested revisions 
to the Indiana SIP. The rules were adopted by the Indiana Air Pollution 
Control Board (IAPCB) on July 21, 1993, and were published in the 
Indiana Register on December 1, 1993. The State submitted these rules 
to satisfy the Stage II vapor recovery requirements of section 
182(b)(3) of the Act. The SIP revision submitted by the State of 
Indiana sets out procedures for the establishment of a Stage II Vapor 
Recovery Program in the ozone nonattainment counties of Lake, Porter, 
Clark, and Floyd. The information presented below summaries the 
requested SIP revision and USEPA's action on it. A more detailed 
analysis of the State's submittal is contained in USEPA's technical 
support documents dated March 23, 1993, and March 31, 1994, which are 
available from the Region 5 office listed above.
    Indiana's regulations specify that Stage II vapor recovery systems 
are required at gasoline dispensing facilities that dispense more than 
10,000 gallons per month, and independent small business marketers of 
gasoline (ISBMG) that dispense an average monthly volume of more than 
50,000 gallons per month. Private fueling facilities such as government 
and company fleet fueling facilities, as well as retailers, are subject 
to the Stage II requirements. The regulations specify the use of 
California Air Resource Board (CARB) certified Stage II systems, which 
have been demonstrated to achieve at least 95 percent control of 
Volatile Organic Compound (VOC) emissions during the refueling of motor 
vehicles. The rules also mandate that the proper installation and 
operation of such systems be achieved by requiring the installed 
systems to be tested for proper installation and requiring the State to 
perform all necessary enforcement of the rules.
    The rules mandate the Stage II vapor recovery systems for nonexempt 
facilities be implemented pursuant to the following phase-in schedule: 
(1) Facilities that commenced construction after November 15, 1990, 
must comply six months after promulgation of the rules by the State; 
(2) facilities that commenced construction before November 15, 1990, 
and dispense an average monthly volume of more than 100,000 gallons of 
motor fuel per month, must comply by one year after promulgation of the 
rules by the State; and (3) all other facilities must comply two years 
after promulgation of the rules by the State.

II. Review Criteria

    The USEPA reviewed the submittal against the requirements of 
section 182(b)(3) of the Act, as interpreted in the General Preamble 
for the Implementation of Title I of the Clean Air Act Amendments of 
1990 (57 FR 13498, 13513 (April 16, 1992)), and two USEPA documents 
entitled Technical Guidance-Stage II Vapor Recovery Systems for Control 
of Vehicle Refueling Emissions at Gasoline Dispensing Facilities 
(Technical Guidance) and the Enforcement Guidance for Stage II Vehicle 
Refueling Control Programs (Enforcement Guidance). Specifically, the 
following seven general criteria need to be met for a Stage II vapor 
recovery regulation to be approvable by USEPA:
(1) Installation of Stage II Controls and Determination of Regulated 
Facilities
    Facilities that dispense more than 10,000 gallons per month must 
install and operate Stage II controls. For gasoline dispensing 
facilities that are owned and operated by an ISBMG, the State may 
establish a cut-point as high as 50,000 gallons per month. Section 
324(c) of the Act establishes a definition of a ISBMG as a person 
engaged in the marketing of gasoline who would be required to pay for 
the installation and operation of Stage II equipment. There are four 
exemptions to this definition (i.e., four groups that will not be 
considered ISBMGs): (1) A refiner; (2) a person who controls, is 
controlled by or is under common control with a refiner; (3) a person 
who otherwise is directly or indirectly affiliated with a refiner or a 
person who controls, is controlled by or is under common control with a 
refiner (unless the sole affiliation is by means of a supply contract 
or an agreement or contract to use trademark, trade name, service mark, 
or other identifying symbol or name owned by such refiner or any such 
person); or (4) a person who receives less than 50 percent of this 
annual income from refining or marketing of gasoline. In the General 
Preamble, USEPA indicated that the suggested method for calculating the 
gallons per month dispensed by affected facilities is determined by 
calculating the average volume of product dispensed per month for the 
2-year period prior to the adoption of the rule by the State. (See 
General Preamble, 57 FR at 13514.) The Enforcement Guidance suggests 
that if sufficient data is not available for a full 2-year period, then 
the period should be extended to include a total of 24 months of 
activity, or the actual months of operation during that 2-year period 
should be used to calculate the facility's average gallons per month. 
(See Enforcement Guidance, Sec. 3.2.)
(2) Establishment of a Time Schedule for Installation of Stage II 
Control Equipment
    Section 182(b)(3)(B) of the Act establishes three standard 
deadlines for the installation and application of Stage II controls, 
after adoption by the State of the Stage II requirements. The phase-in 
schedule given in the Act is the following: (a) 6 months after adoption 
for all facilities commencing construction after November 15, 1990; (b) 
1 year after adoption for all facilities which dispense 100,000 gallons 
or more of gasoline per month; and (c) 2 years after adoption for all 
other facilities required to be regulated. For ISBMGs, section 324(a) 
of the Act provides that the phase in periods may be: (a) 33 percent of 
the facilities owned by an ISBMG by the end of the first year after the 
regulations take effect; (b) 66 percent of such facilities by the end 
of the second year; and (c) 100 percent of such facilities after the 
third year.
(3) System Certification
    An approved system should be tested and certified so as to meet a 
minimum requirement of 95 percent emission reduction efficiency. The 
USEPA believes that this efficiency rate has been demonstrated to be 
feasible. As stated in the General Preamble, the States may achieve 
this by utilizing one of the following three alternatives: (a) A method 
tested and approved by CARB past, current or future recognized testing 
methods, or (b) an equivalent testing program adopted by the State, 
conducted by the Program Oversight Agency (POA) or by a third party 
recognized by the POA, and submitted and approved by USEPA for 
incorporation in the SIP, or (c) a system approved by CARB. (See 
Enforcement Guidance, Sec. 4.2.)
(4) Facility Verification of the Proper Installation and Function of 
Stage II Vapor Control Systems
    The General Preamble indicates in order for the State Stage II 
requirements to be enforceable, the State must require the regulated 
facility to verify proper installation and function of the Stage II 
equipment. The Enforcement Guidance specifies performing a Liquid 
Blockage Test which determines if there is an unacceptable low point in 
the piping, and a Leak Test which measures the vapor tightness of the 
Stage II system. The Enforcement Guidance also states that a facility 
should recertify the functions of the Stage II equipment as least every 
5 years, or upon major system replacement or facility modification (75 
percent or more of the facility's Stage II equipment), whichever occurs 
first. (See April 16, 1992 (57 FR 13514) General Preamble, and; 
Enforcement Guidance, Sec. 8.2.)
(5) Recordkeeping and Reporting
    In the Enforcement Guidance, USEPA identifies various records that 
the State should require facilities to keep and to make available upon 
request. The USEPA believes that these documents must be available in 
order to make the Stage II requirement enforceable. These documents 
include: (a) A license/permit to install and operate the Stage II 
system; (b) verification of passing functional tests after installation 
of equipment, this includes the Liquid Blockage Test, Leak Test, and 
all shutoff/flow prohibiting devise testing; (c) a general station file 
containing initial station information such as motor vehicle fuel 
throughput information; (d) an equipment maintenance and compliance 
file log containing verification that proper maintenance has been 
conducted in accordance with manufacturer's specifications and 
requirements; and (e) training certification files. (See Enforcement 
Guidance, Sec. 8.0.)
(6) Periodic Inspection of Regulated Facility
    The State POA should conduct a minimum of 1 compliance inspection 
per facility per year with mandatory follow-up at stations with 
violations. USEPA believes such inspections are necessary to ensure 
that facilities are complying with the Stage II requirements. This is 
necessary not only for enforcement action but to notify sources that 
are violating the Stage II requirements so they can make the necessary 
adjustments to come into compliance. The compliance inspection should 
consist of a visual inspection of the required paperwork and Stage I 
and II equipment. In addition to the visual inspection, a functional 
inspection to determine if the facility's Stage II equipment is 
functioning properly must also be performed. (See Enforcement Guidance, 
Sec. 5.2(d).)
(7) Regulated Facility Compliance
    The State is required to ensure regulated facility compliance with 
program requirements through enforcement mechanisms, and a penalty 
schedule that establishes appropriate penalties for facilities 
violating the Stage II requirements. (See Enforcement Guidance, Sec. 
5.2(e).)

III. Results of USEPA Review

    The USEPA reviewed the Indiana submittal to determine if criteria 
for approval have been met. The results of USEPA's review are as 
follows:

(1) Installation of Stage II Controls and Determination of Regulated 
Facilities

    Indiana's submittal mandates the requirement of Stage II vapor 
recovery systems on any gasoline dispensing facility that dispenses a 
monthly average volume of 10,000 gallons or more, and on ISBMGs who 
dispense more than 50,000 gallons. The submittal also includes a 
requirement that affected facilities be identified by calculating the 
average volume of product dispensed per month for the 2-year period 
prior to adoption of the rule by the State. Monthly averages are to 
include only those months when the facility was operating. The USEPA 
finds this acceptable because if fully addresses the Federal 
requirement.

(2) Establishment of a Time Schedule for Installation of Stage II 
Control Equipment

    The Act specifies that the time period for installation and 
operation of the Stage II equipment shall run from the State adoption 
date of the Stage II rule. The Act defines adoption to mean the date 
the State adopts the requirements for installation and operation of the 
Stage II equipment. For all facilities, these compliance dates, 
calculated from the time of State adoption of the regulation, are: (1) 
6 months for facilities for which construction began after November 15, 
1990; (2) 1 year for facilities that dispense greater than 100,000 
gallons of gasoline per month; and (3) 2 years for all other 
facilities. The Indiana Stage II rule time schedule sets compliance 
dates of June 1, 1994, December 1, 1994, and December 1, 1995, 
respectively for the above three deadlines based on the December 1, 
1993, publication date of the rule in the Indiana Register. The State 
has adopted this schedule for all affected facilities, including those 
owned or operated by ISBMGs. Although Indiana adopted its regulations 
on July 21, 1993, USEPA believes it is appropriate to interpret the 
adoption date to be December 1, 1993, under the limited circumstances 
presented in this submittal.
    The USEPA is approving the submitted time table for the following 
reasons. First, the Act states that the adoption date must be used to 
calculate the compliance schedule for Stage II implementation at 
facilities. In this case, USEPA defines the adoption date to be the 
date after which a rule becomes effective in a State. Based on this 
definition of adoption date USEPA accepts the December 1, 1993, rule 
publication date as the adoption date from which the compliance 
schedule is calculated. Second, the compliance deadlines triggered by 
this date begin within the time schedule specified by the Act. Third, 
remedying this deficiency by amending the compliance schedule would 
cause further delay in the implementation of Stage II in Indiana. 
Finally, the Indiana rule otherwise fulfills the Stage II requirements 
and USEPA believes it will provide substantial air quality benefits to 
the regulated areas. Therefore, USEPA believes it is in the public 
interest to approve and make enforceable this requirement at the 
earliest time feasible. In the limited circumstances above, USEPA 
believes that it is not inconsistent to interpret the adoption date to 
the December 1, 1993.

(3) System Certification

    The adopted rule mandate that all Stage II vapor control systems 
used be certified by CARB to meet 95 percent emission reduction 
efficiency. Use of CARB-certified systems is acceptable to USEPA. The 
USEPA has specified in its guidance documents that it believes that 
CARB-approved Stage II systems meet the requirement of the Act with no 
additional efficiency testing required. Therefore, USEPA finds the 
specified system certification in the Indiana submittal acceptable.

(4) Installation of Stage II Vapor Control Systems

    The Indiana rule mandates that proper tests be performed to verify 
proper installation and function of the Stage II systems, and requires 
systems to be retested every five years, or upon major system 
replacement or modification. The USEPA believes the testing procedures 
specified help make the rule enforceable and, therefore, are consistent 
with the requirements of the Act.

(5) Recordkeeping and Reporting

    The Indiana rule requires that the affected facilities submit a 
registration form of their Stage II equipment to IDEM within forty-five 
days after the installation of the Stage II equipment. In addition, the 
rule requires that registration material be kept onsite. It also 
requires that, at a minimum, the registration information includes: the 
facility name and address, signature of owner or operator, the CARB 
Executive Order Number for the Stage II system used, number of nozzles 
used, the monthly average volume of gasoline dispensed, and the 
location (including contact person's name, address, and telephone 
number) of other records and reports required by the rule. Other 
records and reports required by the rule to be kept on file by the 
owner or operator and which need to be made available to the POA upon 
request include: proof that a certified Stage II system has been 
installed and tested to verify its performance according to its 
specifications; records that show that proper maintenance has been 
conducted according to manufacturer specifications; records that show 
time periods and duration of all malfunctions of the Stage II system; 
motor vehicle fuel throughput information for each calendar month of 
the previous year; and proof of employee training certification. The 
USEPA finds Indiana's recordkeeping and reporting requirements 
acceptable.

(6) Periodic Inspection Requirements

    The IDEM has committed to adhere to the Enforcement Guidance that 
specifies annual inspections for the facilities with mandatory follow-
up at stations with violations or the development of an inspection 
schedule approved by USEPA through IDEM's inspection program plan.

(7) Regulated Facility Compliance With Program Requirements

    The Indian Code (IC 13-7-13-1, states that any person who violates 
any provision of this article, IC 13-1-1, IC 13-1-3, or IC 13-1-11, or 
any regulation or standard adopted by one (1) of the boards (i.e., 
Indiana Air Pollution Control Board), or who violates any 
determination, permit, or order made or issued by the Commissioner (of 
IDEM) pursuant to this article, IC 13-1-1, or IC 13-1-3, is liable for 
a civil penalty not to exceed twenty-five thousand dollars ($25,000) 
per day of any violation. In that this submittal is a regulation 
adopted by the IAPCB, a violation of which subjects the violator to 
penalties under IC 13-7-13-1, the submittal is consistent with the 
policy established by USEPA in its Enforcement Guidance. In addition, 
IDEM has submitted a civil penalty policy document which accounts for 
various factors in the assessment of an appropriate civil penalty for 
noncompliance with IAPCB rules. Some factors accounted for include: 
severity of the violation, intent, frequency of violations, and other 
factors.

IV. Rulemaking Action

    The USEPA approves 326 IAC 8-1-0.5 and 8-4-6 as revisions to the 
Indiana ozone SIP because the submittal meets all the criteria required 
for approvability, as cited above. The Stage II vapor recovery SIP 
revision for the Lake, Porter, Clark, and Floyd Counties ozone 
nonattainment areas will be complete following this action.
    The USEPA is approving this action without prior proposal because 
the USEPA views this as a noncontroversial revision and anticipate no 
adverse comments. This action will be effective on June 27, 1994 
unless, May 31, 1994 someone wishes to submit adverse comments. If such 
notice is received, this action will be withdrawn before the effective 
date by publishing two subsequent documents. One document will withdraw 
the final action and another will begin a new rulemaking by announcing 
a proposal of the action and establishing a comment period. If no such 
comments are received, the public is advised that this action will be 
effective on June 27, 1994.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989, (54 FR 2214-2225). A revision to the SIP processing 
review tables was approved by the Acting Assistant Administrator for 
Office of Air and Radiation on October 4, 1993 (Michael Shapiro's 
memorandum to Regional Administrators). A future document will inform 
the general public of these tables. Under the revised tables this 
action remains classified as a Table 2. On January 6, 1989, the Office 
of Management and Budget (OMB) waived Table 2 and 3 SIP revisions (54 
FR 2222) from the requirements of section 3 of Executive Order 12291 
for a period of 2 years. USEPA has submitted a request for a permanent 
waiver for Table 2 and Table 3 SIP revisions. OMB has agreed to 
continue the waiver until such time as it rules on USEPA's request. 
This request continued in effect under Executive Order 12866 which 
superseded Executive Order 12291 on September 30, 1993.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq, USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the Act 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the Act, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Act forbids USEPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. 7410(a)(2).
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 27, 1994. Filling a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review not does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and record keeping requirements, Volatile organic compounds.

    Dated: April 8, 1994.
Michelle D. Jordan,
Acting Regional Administrator.

    For the reasons set out in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401-7671q.

Subpart P--Indiana

    2. Section 52.770 is amended by adding paragraph (c)(93) to read as 
follows:


Sec. 52.770  Identification of plan.

* * * * *
    (c) * * *
    (93) On February 25, 1994 the Indiana Department of Environmental 
Management requested a revision to the Indiana State Implementation 
Plan in the form of Stage II Vapor Recovery Rules as amendments to 
Title 326 of the Indiana Administrative Code (326 IAC) 8-1-0.5 and 8-4-
6.
    (i) Incorporation by reference. (A) 326 IAC 8-1-0.5 Definitions and 
8-4-6 Gasoline dispensing facilities. Filed with the Secretary of State 
October 28, 1993, effective November 29, 1993. Published at Indiana 
Register, Volume 17, Number 3, December 1, 1993.

[FR Doc. 94-10111 Filed 4-26-94; 8:45 am]
BILLING CODE 6560-50-M