[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14244]
[[Page Unknown]]
[Federal Register: June 13, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 19-1-6225; FRL-4890-3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Stage II Vapor Recovery Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania. This revision
establishes and requires the use of Stage II vapor recovery at gasoline
dispensing facilities in ozone nonattainment areas classified as
moderate, serious, or severe in the Commonwealth. The effect of this
action is to approve, in a limited fashion, the Pennsylvania regulation
requiring Stage II vapor recovery gasoline dispensing facilities
(Chapter 129.82) and the associated definition of gasoline dispensing
facility in Chapter 121.1. It is also the effect of this action to
disapprove, in a limited fashion, Pennsylvania regulation, Chapter
129.82. This action is being taken under section 110 of the Clean Air
Act.
EFFECTIVE DATE: This final rule will become effective on July 13, 1994.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107; Air and Radiation Docket & Information Center, U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; and Pennsylvania Department of Environmental Resources Bureau of
Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337,at
the EPA Region III address.
SUPPLEMENTARY INFORMATION: On November 29, 1993 (58 FR 62560),
EPApublished a notice of proposed rulemaking (NPR) for the Commonwealth
of Pennsylvania. The NPR proposed two actions: (a) A limited approval/
limited disapproval of the Pennsylvania Stage II vapor recovery
regulation, Chapter 129.82 submitted on March 4, 1992; and (b) approval
of Chapter 129.82 as supplemented by section 6.7(b), (c), and (h) and
section 17(2) of the Pennsylvania Air Pollution Control Act as amended
on June 29, I992. EPA proposed the approval of Chapter 129.82 as
supplemented by sections of the Pennsylvania Air Pollution Control Act
in the event that Pennsylvania submitted those sections of the
Pennsylvania Air Pollution Control Act as a formal SIP revision.
Since Pennsylvania has not submitted the applicable sections from
its Air Pollution Control Act as amended on June 29, 1992, EPA is
withdrawing its proposed approval of Chapter 129.82 as supplemented by
section 6.7(b), (c), and (h) and section 17(2) of the Pennsylvania Air
Pollution Control Act, as amended on June 29, 1992. Therefore, this
notice is a final rulemaking action of the March 4, 1992 submittal
alone.
Other specific requirements of Pennsylvania's Stage II regulation
and the rationale for EPA's proposed action are explained in the NPR
and will not be restated here. Only one comment pertaining to the NPR
was received. The Pennsylvania Department of Environmental Resources
(DER) requested that EPA withhold final action on the Stage II vapor
recovery regulation submitted on March 4, I992 until EPA resolves the
issues concerning applicability of Stage II in moderate ozone
nonattainment areas. EPA has no issues to resolve concerning Stage II
in moderate ozone nonattainment areas. The onboard vapor recovery
requirements required to be issued prior to January 22, 1994 do not
affect requirements in the Pennsylvania Stage II regulation, Chapter
129.82. States are free to continue to enforce Stage II regulations in
moderate ozone nonattainment areas, even after the promulgation of
onboard vapor recovery requirements by EPA. Therefore, EPA is
finalizing its limited approval/limited disapproval of the Pennsylvania
Stage II regulation, Chapter 129.82, and the associated definition of
gasoline dispensing facilities located in Chapter 121.1, which is
applicable in moderate, serious and severe ozone nonattainment areas in
the Commonwealth.
Final Action
EPA is approving the definition of gasoline dispensing facility in
Chapter 121 and the Stage II vapor recovery requirements in Chapter
129.82 as a revision to the Pennsylvania SIP. EPA is also disapproving
the Stage II vapor recovery requirements in Chapter 129.82 for the
limited purpose of allowing Pennsylvania the opportunity to correct the
testing and certification requirement deficiencies previously
identified by EPA. This final limited disapproval begins the 18 month
sanctions clock for the Pennsylvania Stage II regulation.
Because of the previously identified deficiencies, EPA cannot grant
full approval of this rule under section 110(k)(3) and part D. Also,
because the submitted rule is not composed of separable parts which
meet all the applicable requirements of the CAA, EPA cannot grant
partial approval of the rule under section 110(k)(3).
However, EPA may grant a limited approval of the submitted rule(s)
under section 110(k)(3) in light of EPA's authority pursuant to section
301(a) to adopt regulations necessary to further air quality by
strengthening the SIP. The approval is limited because EPA's action
also contains a simultaneous limited disapproval, due to the fact that
the rule does not meet the section 182(b)(3) requirement of part D
because of the noted deficiencies. Thus, EPA is approving the
Pennsylvania Stage II vapor recovery regulation, Chapter 129.82
submitted under section 110(k)(3) and 301(a) of the CAA for the limited
purpose of strengthening the Pennsylvania SIP.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator certifies 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 CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIP's on such grounds. Union Electric Co. v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
EPA is also disapproving the Pennsylvania Stage II rule because it
contains deficiencies that have not been corrected and, as such, the
rule does not fully meet the requirements of section 182(b)(3) of the
Act. Under section 179(a)(2), if the Administrator disapproves a
submission under section 110(k) for an area designated nonattainment,
based on the submission's failure to meet one or more of the elements
required by the Act, the Administrator must apply one of the sanctions
set forth in section 179(b) unless the deficiency has been corrected
within 18 months of such disapproval. Section 179(b) provides two
sanctions available to the Administrator: highway funding and offsets.
The 18 month period referred to in section 179(a) begins at the time
EPA publishes final notice of this disapproval. Moreover, the final
disapproval triggers the Federal implementation plan (FIP) requirement
under section 110(c). The 18 month sanctions clock for the Pennsylvania
Stage II vapor recovery regulation begins on June 13, 1994.
EPA's disapproval of the State request under section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing Federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 2 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation. On January 6, 1989, the Office of
Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions
from the requirements of section 3 of Executive Order 12291 for a
period of two years. The USEPA has submitted a request for a permanent
waiver for Table 2 and 3 SIP revisions. The OMB has agreed to continue
the waiver until such time as it rules on USEPA's request. This request
is still applicable under Executive Order 12866, which superseded
Executive Order 12291 on September 30, 1993.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to the Pennsylvania Stage II
regulation, Chapter 129.82, must be filed in the United States Court of
Appeals for the appropriate circuit by August 12, 1994. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Dated: April 14, 1994.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
40 CFR part 52 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 NN--Pennsylvania
2. Section 52.2020 is amended by adding paragraph (c)(89) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(89) Revisions to the Pennsylvania Regulations, Chapter 129.82
pertaining to Stage II Vapor Recovery and the associated definition of
gasoline dispensing facilities in Chapter 121.1 submitted on March 4,
1992 by the Pennsylvania Department of Environmental Resources:
(i) Incorporation by reference.
(A) Letter of March 4, 1992 from the Pennsylvania Department of
Environmental Resources transmitting Chapter 121.1, definition of
gasoline dispensing facilities, and Chapter 129.82 pertaining to
regulations for Stage II vapor recovery in moderate, serious and severe
ozone nonattainment areas in the Commonwealth.
(B) Pennsylvania Bulletin (Vol. 22, No. 8) dated February 8, 1992
containing the definition of gasoline dispensing facility in Chapter
121.1 and the Stage II vapor recovery regulations contained in Chapter
129.82, effective on February 8, 1992.
(ii) Additional material.
(A) Remainder of March 4, 1992 State submittal.
3. Section 52.2023 is amended by adding paragraph (i) to read as
follows:
Sec. 52.2023 Approval status.
* * * * *
(i) Limited approval/limited disapproval of revisions to the
Pennsylvania Regulations, Chapter 129.82 pertaining to Stage II Vapor
Recovery and the associated definition of gasoline dispensing
facilities in Chapter 121.1 submitted on March 4, 1992 by the
Pennsylvania Department of Environmental Resources. The Pennsylvania
Stage II regulation is deficient in that it does not include the
testing and certification procedures contained in EPA's October 1991
Stage II guidance documents (EPA-450/3-91-022a and EPA-450/3-91-022b).
[FR Doc. 94-14244 Filed 6-10-94; 8:45 am]
BILLING CODE 6560-50-F