[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21706-21707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10819]



-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IL107-1-6708a; FRL-5190-4]


Approval and Promulgation of Implementation Plans; Illinois

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The USEPA approves the Illinois, September 26, 1994, State 
Implementation Plan (SIP) revision request which grants a variance to 
J.M. Sweeney Co. (Sweeney) from Stage II vapor recovery requirements 
from November 1, 1993, until March 31, 1995. This variance has been 
granted because Sweeney has demonstrated that immediate compliance with 
the requirements at issue would impose an arbitrary and unreasonable 
hardship. USEPA made a finding of completeness on the SIP submittal on 
October 28, 1994. In the proposed rules section of this Federal 
Register, USEPA is proposing approval of and soliciting public comment 
on this requested SIP revision. If adverse comments are received on 
this action, USEPA will withdraw this final rule and address the 
comments received in response to this action in a final rule on the 
related proposed rule which is being published in the proposed rules 
section of this Federal Register. Please be aware that USEPA will 
institute another rulemaking notice on this action only if warranted by 
significant revision to the rulemaking based on any comments received 
in response to today's action. Parties interested in commenting on this 
action should do so at this time.

DATES: This action will be effective July 3, 1995 unless an adverse 
comment is received by June 2, 1995. If the effective date of this 
action is delayed due to adverse comments, timely notice will be 
published in the Federal Register.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Regulation Development Branch (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    Copies of the Illinois submittal are available for public review 
during normal business hours, between 8:00 a.m. and 4:30 p.m., at the 
above address. A copy of this SIP revision is also available for 
inspection at: Office of Air and Radiation (OAR), Docket and 
Information Center (Air Docket 6102), Room 1500, U.S. Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Regulation 
Development Section, Regulation Development Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. Telephone: (312) 886-6082.

SUPPLEMENTARY INFORMATION: On January 12, 1993, USEPA approved 
Illinois's Stage II vapor recovery rules (35 Ill. Adm. Code 218) as a 
revision to the Illinois SIP for ozone, applicable to the Chicago ozone 
nonattainment area (Cook, DuPage, Kane, Lake, McHenry, Will Counties 
and Aux Sable and Goose Lake Townships in Grundy County and Oswego 
Township in Kendall County). These regulations satisfy section 
182(b)(3) of the Clean Air Act as amended in 1990, which requires 
certain ozone nonattainment areas to require specified gasoline 
dispensing facilities to install and operate Stage II vapor recovery 
equipment. Stage II vapor recovery systems are designed to control and 
capture at least 95 percent of the Volatile Organic Compound (VOC) 
vapors emitted during the refueling of motor vehicles. Among these 
Stage II requirements is the provision that certain gasoline dispensing 
facilities, such as Sweeney's facility in Cicero, Illinois, must 
install Stage II vapor recovery equipment no later than November 1, 
1993.
    Sweeney contends that it had initiated efforts to achieve 
compliance by the November 1, 1993 compliance date. Among these efforts 
was a site evaluation conducted by a geophysical consulting firm. On 
August 30, 1993, the consulting firm informed Sweeney that petroleum 
contamination likely occurred at the site. On August 31, 1993, Sweeney 
notified the Illinois Emergency Management Agency (IEMA) of the 
suspected contamination and of the likely need for remediation. 
Subsequent on-site sampling confirmed that remediation is necessary and 
that it will require removal of both soil and some of the tanks. 
Installing Stage II equipment before the completion of the remediation 
would require that some of the Stage II equipment would have to be 
dismantled and removed during the remediation, which, according to 
Sweeney and the Illinois Environmental Protection Agency, would cost 
Sweeney an additional $50,000 to $60,000. As of July 14, 1994, the full 
areal extent of the contamination was yet to be identified, pending 
Sweeney's ability to gain access to off-site sampling locations.
    On December 17, 1993, Sweeney filed a petition with the Illinois 
Pollution Control Board (IPCB) requesting a variance from meeting the 
November 1, 1993, compliance date on the grounds that requiring 
installation of the Stage II vapor recovery equipment prior to 
remediation would cause an unreasonable financial hardship. The IPCB is 
charged under the Illinois Environmental Protection Act with the 
responsibility of granting variance from regulations issued by the 
Board whenever it is found that compliance with the regulations would 
impose an arbitrary or unreasonable hardship upon the petitioner for 
the variance.
    On September 1, 1994, the IPCB granted the variance extending Stage 
II compliance for Sweeney until March 31, 1995. Given both the high 
additional [[Page 21707]] cost associated with installing and 
dismantling Stage II equipment before the remediation is completed and 
the low environmental impact occasioned by temporary noncompliance 
before March 31, 1995, the IPCB found that requiring Sweeney to have 
installed Stage II equipment by November 1, 1993, does constitute an 
unreasonable hardship. Illinois submitted this variance as a revision 
to the Illinois ozone SIP on September 26, 1994.

Final Rulemaking Action

    The USEPA is approving this SIP revision on the basis that the 
uncontrolled emissions generated by Sweeney as a result of the variance 
will not contribute significantly to ozone formation, given that the 
variance will expire on March 31, 1995, before the onset of the ozone 
season which is April 1.
    The USEPA is publishing this action without prior proposal because 
USEPA views this as a noncontroversial amendment and anticipates no 
adverse comments. However, USEPA is publishing a separate document in 
this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
July 3, 1995, unless adverse or critical comments are received by June 
2, 1995.
    If USEPA receives comments adverse to or critical of the approval 
discussed above, USEPA will withdraw the approval before its effective 
date by publishing a subsequent rule that withdraws this final action. 
All public comments received will then be addressed in a subsequent 
rulemaking notice. Please be aware that USEPA will institute another 
rulemaking notice on this action only if warranted by significant 
revision to the rulemaking based on any comments receives in response 
to today's action.
    Any parties interested in commenting on this action should do so at 
this time. If no such comments are received, USEPA hereby advises that 
this action will be effective July 3, 1995.
    This action has been classified as a Table 3 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 H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.
    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 any 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 economic 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.
    The 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 small entities. 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 the 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 
(1976).
    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 July 3, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purpose 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, Ozone, Volatile organic compounds.

    Dated: March 29, 1995.
Valdas V. Adamkus,
Regional Administrator.

    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 O--Illinois

    2. Section 52.720 is amended by adding paragraph (c)(110) to read 
as follows:


Sec. 52.720  Identification of plan.

    (c) * * *
    (110) On September 26, 1994, the State of Illinois submitted a 
revision to its ozone State Implementation Plan for the J. M. Sweeney 
Company located in Cicero, Cook County, Illinois. It grants a 
compliance date extension from Stage II vapor control requirements (35 
Ill. Adm. Code 218.586) from November 1, 1993, to March 31, 1995.
    (i) Incorporation by reference.
    (A) Illinois Pollution Control Board Final Opinion and Order, PCB 
93-257, adopted on September 1, 1994, and effective on September 1, 
1994. Certification dated 9/23/94 of Acceptance by J. M. Sweeney.

[FR Doc. 95-10819 Filed 5-2-95; 8:45 am]
BILLING CODE 6560-50-P