[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25970]


[[Page Unknown]]

[Federal Register: October 20, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH49-1-6072a; FRL-5082-5]

 

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: Today USEPA is partially approving and partially disapproving, 
through ``direct final'' procedure, Ohio's State Implementation Plan 
(SIP) revision for implementation of a Stage II vapor recovery program. 
Section 182(b)(3) of the Clean Air Act (CAA) requires all States that 
have ozone nonattainment areas classified as moderate or above to 
implement a Stage II vapor recovery program. The Stage II vapor 
recovery program requires owners and operators of gasoline dispensing 
facilities that dispense greater than 10,000 gallons of fuel per month 
(50,000 gallon per month in the case of an independent small business 
marketer) to install and operate gasoline vehicle refueling vapor 
recovery systems. Vapor recovery systems control the release of 
volatile organic compounds (VOC), benzene, and toxics emitted during 
the refueling process. The USEPA is partially approving Ohio's Stage II 
rule package, and disapproving Paragraph 3745-21-09(DDD)(5), which 
grants the Director of the Ohio Environmental Protection Agency (OEPA) 
the discretion to suspend the Stage II vapor recovery program without 
prior approval of USEPA.
    The USEPA is partially approving the rules since, with the 
exception of Paragraph 3745-21-09(DDD)(5), the program satisfies the 
criteria for approval of Stage II vapor recovery programs. The USEPA is 
disapproving Paragraph 3745-21-09(DDD)(5) since it fails to satisfy the 
requirements of Part D of Title I of the CAA by providing the Director 
of OEPA the discretion to suspend the Stage II program without first 
obtaining Federal approval. Partial approval of the State of Ohio's 
Stage II submittal will incorporate the provisions of the program that 
satisfy USEPA's approval criteria into the State's Federally approved 
SIP.

DATES: This final rule will be effective on December 19, 1994 unless 
notice is received by November 21, 1994 that any person wishes to 
submit adverse or critical comments. If the effective date is delayed, 
timely notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to William L. MacDowell, U.S. 
Environmental Protection Agency, Region 5, (AE-17J), 77 West Jackson 
Boulevard, Chicago, Illinois 60604-3590. Copies of the documents 
relevant to this proposed action are available for public inspection 
during normal business hours at the following address: (It is 
recommended that you telephone John Paskevicz at (312) 886-6084 before 
visiting the Region 5 Office). U.S. Environmental Protection Agency, 
Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604; and Air Docket 6102, United States 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Air Enforcement 
Branch, Regulation Development Section, (AE-17J), U.S. Environmental 
Protection Agency, Region 5, Chicago, Illinois, 60604, (312) 886-6084.

SUPPLEMENTARY INFORMATION:

Background

    Under section 182(b)(3) of the CAA, USEPA was required to issue 
guidance as to the effectiveness of Stage II systems. In November 1991, 
USEPA issued technical and enforcement guidance to meet this 
requirement. In addition, on April 16, 1992, USEPA published the 
``General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990'' (General Preamble) (57 FR 13498). The guidance 
documents and the General Preamble interpret the Stage II statutory 
requirement and indicate the elements USEPA believes a State submittal 
needs to include to meet that requirement.
    On June 7, 1993, the OEPA submitted a package of reasonably 
available control technology (RACT) VOC rules to USEPA for approval. 
The rules for implementation of the Stage II vapor recovery program 
required by section 182(b)(3) of the CAA were included in the VOC RACT 
package and apply to three areas in Ohio:
    (1) Cincinnati-Hamilton;
    (2) Cleveland-Akron-Lorain; and
    (3) Dayton-Springfield.

The USEPA is conducting this rulemaking on the Stage II vapor recovery 
regulations separately from the VOC RACT rulemaking.
    Section 182(b)(3) of the CAA requires States with areas designated 
as moderate and above nonattainment areas for ozone to submit a SIP 
revision to USEPA by November 15, 1992, requiring owners and operators 
of gasoline dispensing facilities to install and operate gasoline 
vehicle refueling vapor recovery systems. Section 202(a)(6) of the CAA 
states that Stage II vapor recovery programs are no longer required for 
moderate ozone nonattainment areas once USEPA promulgates regulations 
for on-board vapor recovery systems. The final rule for on-board vapor 
recovery systems has been promulgated and was published in the Federal 
Register on April 6, 1994 (59 FR 16292). Ohio seeks approval for the 
Stage II program for the purposes of achieving creditable VOC emissions 
reductions.
    The Cincinnati-Hamilton, Cleveland-Akron-Lorain, Dayton-
Springfield, and Toledo areas are designated moderate nonattainment for 
ozone (see 56 FR 56694 (November 6, 1991) and 57 FR 56762 (November 30, 
1992), codified at 40 CFR 81.336). Under section 182(b)(3) of the CAA, 
Ohio was required to submit Stage II vapor recovery rules for these 
areas by November 15, 1992. The USEPA has reviewed the State submittal 
against the statutory requirements and for consistency with USEPA 
guidance and is now partially approving and partially disapproving this 
submittal. A summary of EPA's analysis is provided below; in addition, 
a more detailed analysis of the State submittal is contained in a 
Technical Support Document, dated January 28, 1994, which is available 
from the Region 5 Office, listed above.

Review Criteria

    USEPA reviewed the submittal against the requirements of section 
182(b)(3) of the CAA, as interpreted in the General Preamble for 
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 acceptable:
    (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 independent small 
business marketers, the State may establish a cut-point as high as 
50,000 gallons per month. In the General Preamble, USEPA indicated that 
the suggested method for calculating the gallons per month dispensed by 
affected facilities would be determined by calculating the average 
volume of products dispensed per month for the 2 year period prior to 
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 available months of 
operation during the 2 year period should be used to calculate the 
facility's average gallons per month. (See Enforcement Guidance, Sec. 
3.2).
    (2) After adoption by the State of the Stage II requirements, 
section 182(b)(3)(B) of the CAA establishes three deadlines for the 
installation and application of Stage II controls. The phase-in 
schedule given in the CAA is as follows:
    (a) 6 months after adoption for all facilities commencing 
construction after November 15, 1990;
    (b) 1 year for all facilities which dispense 100,000 gallons or 
more of gasoline per month; and
    (c) 2 years for all other facilities required to be regulated.
    (3) System Certification. An approved system should be tested and 
certified as meeting 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 meet the testing and certification requirement by 
utilizing one of the following three alternatives:
    (a) A method tested and approved by the California Air Resources 
Board (CARB);
    (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 requirement to be enforceable, the State 
should require the regulated facility to verify proper installation and 
function of the Stage II equipment. The Enforcement Guidance specifies 
use of a Liquid Blockage Test which determines if there is an 
acceptable 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 at least every 5 years, or upon major facility modification 
(75 percent or more change), whichever comes first. (See 57 FR 13514 
(April 16, 1992) 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 need to be available in order to make the Stage II 
requirements enforceable. These documents include:
    (a) Licenses/permits to install and operate the Stage II systems;
    (b) Verification of passing functional tests after inspection of 
the equipment (this includes the Liquid Blockage Test, Leak Test, and 
all shutoff/flow prohibiting device testing)
    (c) General station file records containing initial station 
information such as motor vehicle fuel throughput information;
    (d) Equipment maintenance and compliance file logs containing 
verification that proper maintenance has been conducted in accordance 
with equipment manufacturers's specifications and requirements;
    (e) Training certification files (See Enforcement Guidance, Sec. 
8.0)
    (6) Periodic Inspection of Regulated Facility. The State POA should 
conduct a minimum of one compliance inspection per facility per year 
with mandatory follow-up at facilities with violations. USEPA believes 
such inspections are necessary to ensure that affected facilities are 
complying with the Stage II requirements. This would result in bringing 
sources that are violating the Stage II requirements into compliance. 
The compliance inspection should consist of a visual inspection of the 
required paperwork, and Stage II equipment, and a functional inspection 
to determine if the facility's Stage II equipment is functioning 
properly. (See Enforcement Guidance, Sec. 5.2(d).)
    (7) Enforcement and Compliance Mechanisms. Requirement 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))

Results of USEPA Review

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

    Ohio's SIP submittal requires the installation of Stage II vapor 
recovery systems on any gasoline dispensing facility that dispenses a 
monthly average volume of 10,000 gallons or more. The submittal 
establishes a 50,000 gallon per month cut point for independent small 
business marketers of gasoline (ISBM). Ohio's definition of ISBM meets 
the definition outlined in section 324 of the CAA. The submittal also 
includes a requirement that affected facilities be identified by 
calculating the average volume of product dispensed per month for the 
two year period prior to adoption of the rule by the State. The USEPA 
believes this is acceptable since it is in full compliance with the 
Federal requirements.

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

    The time schedule in the Ohio submittal mandates installation of 
the Stage II Control equipment by:
    (1) September 30, 1993, for facilities that started construction 
after November 15, 1990;
    (2) March 31, 1994 for facilities which started construction before 
November 1, 1990, and dispense more than 100,000 gallons of motor fuel 
per month; and
    (3) March 31, 1995, for facilities which started construction 
before November 1, 1990 and dispense less than 100,000 gallons of motor 
fuel per month.

The State of Ohio's Stage II rules became effective on March 31, 1993. 
Therefore, USEPA believes this time schedule for implementation is 
acceptable since it is in compliance with the Federal requirements.

(3) System Certification

    The Ohio rules mandate that all Stage II vapor control systems used 
be certified by CARB to meet 95 percent emission reduction efficiency, 
by weight. The USEPA has specified in its guidance documents that it 
believes that CARB approved Stage II systems meet the CAA requirement 
with no additional efficiency testing required. USEPA believes the 
specified system certification in the Ohio submittal is acceptable.

(4) Verification of Proper Installation and Function of Stage II Vapor 
Control Systems

    The Ohio rules require that, following the installation of a Stage 
II vapor control system, tests be performed to verify proper 
installation and function of the systems and requires systems to be 
retested after major facility modification. These tests are a leak 
test, a dynamic pressure drop test, and a liquid blockage test. The 
tests the State has adopted to verify proper installation and function 
of the systems are not the same tests that are included in USEPA's 
Technical Guidance--Stage II Vapor Recovery Systems for Control of 
Vehicle Refueling at Gasoline Dispensing Facilities. The test 
procedures vary significantly from those included in EPA's Guidance 
and, at the time of this rulemaking, have not been adopted by the 
California Air Resources Board (CARB). USEPA anticipates that the tests 
Ohio EPA has included will be approved by CARB in the near future and 
will serve to accurately determine proper installation and function of 
the systems because these tests are actually updated versions of the 
tests included in USEPA's Technical Guidance Document. However, if 
these tests are not approved by CARB, then Ohio would be required to 
revise its SIP so that it does not rely on these tests. USEPA finds 
this to be acceptable.

(5) Recordkeeping and Reporting

    Ohio has adopted the recordkeeping items recommended in USEPA's 
guidance and specifies that sources subject to Stage II must make the 
following documents available upon request:
    (1) The quantity of gasoline delivered by the facility each 
calendar month;
    (2) The results of any verification tests;
    (3) A log of the date and description of all repair and maintenance 
work performed, or any other modifications to the vapor control system;
    (4) A copy of the most recent permit to operate application 
submitted to OEPA;
    (5) A copy of the most recent permit to operate issued by OEPA; and
    (6) Proof of attendance and completion of the training required by 
OEPA. The USEPA finds these recordkeeping requirements acceptable since 
they are in compliance with the Federal requirements.

(6) Periodic Inspection Requirements

    The Ohio submittal contains a requirement for annual inspections of 
facilities subject to the Stage II program, with mandatory follow-up 
inspections at noncomplying facilities. The inspection will cover 
inspection records, facility equipment, and functional testing of 
equipment. The USEPA believes these inspection requirements are in 
compliance with the Federal requirements.

(7) Enforcement Compliance Mechanisms

    The Ohio submittal describes the measures that the State will 
implement to ensure facility compliance with the program requirements. 
Training and public education programs are among the enforcement 
activities that OEPA will undertake. If a facility is found to be in 
violation of any of the program requirements, the facility will be 
issued a warning letter and provided an opportunity to develop an 
acceptable compliance schedule that describes how compliance will be 
achieved within a 30 day time frame. Failure to develop an acceptable 
compliance schedule will result in either Findings and Orders or a 
consent decree/order being issued to the facility. The Findings and 
Orders or consent decree/order will include appropriate civil 
penalties.
    USEPA recommends that the OEPA develop a penalty schedule that 
applies specifically to the Stage II Vapor Recovery Program. This 
schedule should include fines and other penalties that apply specific 
penalties for specific violations at facilities failing to comply with 
the program requirements or to maintain the vapor recovery system. 
These penalties would be in addition to any civil penalties resulting 
from a Finding and Order or consent decree/order. Otherwise, a facility 
could avoid maintaining its equipment, without consequence, until an 
inspector has identified a violation, issued a warning letter with a 30 
day compliance time frame, and failed to comply with the terms of the 
decree or order.

Director's Discretion Provision

    USEPA was provided several opportunities to comment on the State's 
draft rules while OEPA was developing the regulations for 
implementation of the Stage II vapor recovery program. On December 7, 
1992, the OEPA Division of Air Pollution Control requested Region 5's 
comments on draft language of Paragraph 3745-21-09(DDD)(5). OEPA 
explained that the paragraph was developed after the public comment 
period in response to concerns expressed by Ohio's Joint Committee on 
Administrative Rules and Regulations (JCARR). On December 12, 1992, 
Region 5 informed OEPA that the new section 09(DDD)(5) was 
unapprovable, and presented OEPA with an alternative version of the 
section which provided that the OEPA Director may exercise discretion 
to suspend the Stage II program only in the event that:
    (1) A redesignation request is approved by USEPA; or
    (2) The Director (a) provides a demonstration to USEPA that the 
Stage II program in each affected area is not necessary to ensure the 
attainment and/or maintenance of the National Ambient Air Quality 
Standards (NAAQS) for ozone, and (b) USEPA approves such demonstration 
through a SIP revision.
    The final Stage II rules package submitted by Ohio for approval on 
June 7, 1993, did not incorporate the language suggested by Region 5, 
but retained the unapprovable discretionary suspension provision from 
the December 7, 1992, draft.
    The SIP revision submitted by OEPA satisfies all of the criteria 
outlined in USEPA guidance regarding the oversight and enforcement of 
the Stage II program. However, Paragraphs 3745-21-09(DDD)(5)(a) and 
3745-21-09(DDD)(5)(b) jeopardize the enforceability of the Stage II 
vapor recovery program by granting the Director of OEPA the discretion 
to suspend the program without first seeking and obtaining a SIP 
revision (i.e., Federal approval). The discretionary suspension 
provision poses an unacceptable threat to continuous Federal 
enforceability of the requirements of the Stage II program. Therefore, 
Paragraph 3745-21-09(DDD)(5), the paragraph must be disapproved.
    A memorandum from John Calcagni, then Director of the Air Quality 
Management Division, Office of Air Quality Planning and Standards 
(OAQPS), dated July 9, 1992, provides guidance on SIP submittals that 
are determined to be complete, but contain some provisions that do meet 
the requirements of the CAA and other provisions that do not. In those 
cases where the provisions in question are separable, the guidance 
recommends partial approval of the SIP submittal.
    Ohio has informed the USEPA, in a letter dated December 9, 1993, 
that the State assents to partial approval of its Stage II program with 
disapproval of its director's discretion provision.

Final Action

    USEPA is partially approving and partially disapproving the State 
of Ohio's Stage II vapor recovery program. The USEPA is only 
disapproving Paragraph 3745-21-09(DDD)(5). The remainder of the program 
is being approved under section 110(k)(3) of the CAA. Partial approval 
of the Stage II program will result in the approved portions of the 
State of Ohio's rules being incorporated into the State's Federally 
approved SIP. The USEPA is disapproving Paragraph 3745-21-09(DDD)(5) of 
the Ohio rules since the provision poses an unacceptable threat to 
continuous Federal enforceability of the requirements of the Stage II 
vapor recovery program. Disapproval of Paragraph 2745-21-09(DDD)(5) is 
intended to ensure that OEPA follows the established procedures 
required by title I of the CAA for suspending the program requirements. 
Before suspending the Stage II program in an affected area, OEPA must 
demonstrate to USEPA that the program is not necessary in the area to 
ensure maintenance of the NAAQS for ozone.

Procedural Background

    This action is being taken without prior proposal because the 
changes are believed to be noncontroversial and USEPA anticipates no 
significant comments on them. The public is advised that this action 
will be effective December 19, 1994, unless notice is received by 
November 21, 1994, that someone wishes to submit adverse or critical 
comments. If the USEPA receives adverse comment, the direct final rule 
will be withdrawn and all public comments received will be addressed in 
a subsequent final rule based on a proposed rule which is published in 
the proposed rule section of this Federal Register. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.
    Nothing in this action should be construed as permitting, allowing, 
or establishing a precedent for any future request for revision to any 
SIP. The USEPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors, and 
in relation to relevant statutory and regulatory requirements.

Executive Order 12866

    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), as revised by an October 4, 1993, 
memorandum from Michael Shapiro, Acting Assistant Administrator for Air 
and Radiation. The OMB has exempted this regulatory action from 
Executive Order 12866 review.

Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq., 
USEPA should 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.
    This partial approval/partial disapproval does not create any new 
requirements. Therefore, I certify that this action 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 
the regulatory flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of the State action. The CAA forbids 
USEPA to base its final partial approval/partial disapproval of Ohio's 
Stage II vapor recovery program on such grounds. Union Electric Co. v. 
USEPA, 427 U.S. 246, 256-66 (1976).

List of Subjects in 40 CFR Part 52

    Air pollution control, Incorporation by reference, 
Intergovernmental relations, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: September 16, 1994.
Michelle D. Jordan,
Acting Regional Administrator.

    Part 52, chapter 1, 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.

    2. Section 52.1870 is amended by adding paragraph (c)(104) to read 
as follows:


Sec. 52.1870  Identification of plan.

* * * * *
    (c) * * *
    (104) On June 7, 1993, the Ohio Environmental Protection Agency 
submitted a revision request to Ohio's ozone SIP for approval of the 
State's Stage II vapor recovery program. The Stage II program 
requirements apply to sources in the following areas: Cincinnati-
Hamilton; Cleveland-Akron-Lorain; and Dayton-Springfield.
    (i) Incorporation by reference.
    (A) Ohio Administrative Code rules 3745-21-09(DDD)(1)-(4), 
effective date March 31, 1993.

[FR Doc. 94-25970 Filed 10-19-94; 8:45 am]
BILLING CODE 6560-50-P