[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36063-36065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17219]



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


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IL123-1-6976a; FRL 5252-7]


Approval and Promulgation of Implementation Plans; Illinois

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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

SUMMARY: The USEPA approves the March 28, 1995, Illinois State 
Implementation Plan (SIP) revision request which consists of a variance 
for P & S, Incorporated's (P & S) facility, located in Wood Dale, 
DuPage County, Illinois, from 35 Illinois Administrative Code (IAC) 
218.586, the regulations for Stage II vapor recovery. This variance 
begins on November 1, 1994, and will ultimately expire on April 1, 
1996. The granting of this variance is approvable because P & S 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 May 17, 1995. 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 final rule is effective September 11, 1995 unless an 
adverse comment is received by August 14, 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 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 6976), Room 1500, U.S. Environmental 
Protection Agency, 401 M Street, SW., Washington, DC 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 P & S's facility in Wood Dale, Du Page County, 
Illinois, must install Stage II vapor recovery equipment no later than 
November 1, 1994.
    The Illinois Department of Transportation (IDOT) is currently 
upgrading the roads surrounding the P & S facility. It is anticipated 
that the construction of the roadway will require P & S's facility to 
relocate its underground storage tanks. Completion of the construction 
of the roadway is anticipated in early 1996. Installation of the Stage 
II vapor recovery equipment before the completion of the upgrading of 
the roadway and the relocation of the facility's tanks would mean that 
the facility would then be required to install the Stage II vapor 
recovery equipment twice, both before and after moving the tanks.

[[Page 36064]]

    On October 29, 1994, P & S filed a petition with the Illinois 
Pollution Control Board (IPCB) requesting a variance from meeting the 
November 1, 1994, compliance date on the grounds that requiring the 
facility to install Stage II vapor recovery equipment prior to the 
completion of the upgrading of the roadway and the relocation of the 
facility's tanks 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 February 16, 1995, the IPCB granted a variance from Stage II 
compliance for P & S. The variance begins November 1, 1994 and expires 
on April 1, 1996, or 60 days after notification to P & S from the IDOT, 
or the developer of the shopping center, that the widening of the 
roadway will be abandoned for any reason, whichever is sooner. Given 
both the high additional cost associated with having to install Stage 
II equipment twice and the minimal impact on ozone air quality 
occasioned by temporary noncompliance before April 1, 1996, the IPCB 
found that requiring P & S to have installed Stage II equipment by 
November 1, 1994, does constitute an unreasonable hardship. Illinois 
submitted this variance as a revision to the Illinois ozone SIP on 
March 28, 1995.

Final Rulemaking Action

    The USEPA is approving this SIP revision because the above argument 
that immediate compliance with the Stage II requirements will cause an 
unreasonable hardship to P & S is acceptable to USEPA, and that the 
uncontrolled emissions generated by P & S as a result of the variance 
will not contribute significantly to ozone formation, given that the 
variance will expire on or before April 1, 1996.
    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 
September 11, 1995, unless adverse or critical comments are received by 
August 14, 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 
action. Please be aware that USEPA will institute another rulemaking 
document on this action only if warranted by significant revision to 
the rulemaking based on any comments received 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 September 11, 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 section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 
USEPA must prepare a budgetary impact statement to accompany any 
proposed or final rule that includes a Federal mandate that may result 
in estimated costs to State, local, or tribal governments in the 
aggregate, or to the private sector, of $100 million or more. Under 
section 205, the USEPA must select the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with statutory requirements. Section 203 requires the USEPA 
to establish a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule.
    The USEPA has determined that the approval action promulgated today 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector.
    This Federal action approves pre-existing requirements under State 
or local law, and imposes no new Federal requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or the private 
sector, result from this action.
    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 sections 202, 203 and 205 of the Unfunded Mandates Reform Act 
of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, 
USEPA must undertake various actions in association with proposed or 
final rules that include a Federal mandate that may result in estimated 
costs of $100 million or more to the private sector, or to a State, 
local and/or tribal government(s) in the aggregate. The USEPA must also 
develop a plan with regard to small governments that would be 
significantly or uniquely affected by the rule.
    This rule applies only to a single private sector source located in 
the Chicago ozone nonattainment area. To the extent that the rules 
being promulgated by this action will impose any mandate upon this 
source, such a mandate will not result in estimated annual costs of 
$100 million or more to that source. The rule also does not impact any 
governments. Therefore, no action is required under the Unfunded 
Mandates Act.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States 

[[Page 36065]]
Court of Appeals for the appropriate circuit by September 11, 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, Ozone, 
Hydrocarbons, Incorporation by reference, Volatile organic compounds.

    Dated: June 14, 1995.
David Kee,
Acting 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)(112) to read 
as follows:


Sec. 52.720  Identification of plan.

    (c) * * *
    (112) On March 28, 1995, the State of Illinois submitted a revision 
to its ozone State Implementation Plan for P & S, Incorporated's 
facility located in Wood Dale, Du Page County, Illinois. It grants a 
compliance date extension from Stage II vapor control requirements (35 
Ill. Adm. Code 218.586) from November 1, 1994 until April 1, 1996, or 
60 days after notification to P & S, Incorporated that the roadway 
construction complicating the installation of Stage II equipment will 
be abandoned for any reason, whichever is sooner.
    (i) Incorporation by reference.
    (A) Illinois Pollution Control Board Final Opinion and Order, PCB 
94-299, adopted on February 16, 1995, and effective on February 16, 
1995. Certification dated March 1, 1995 of Acceptance by P & S, 
Incorporated.

[FR Doc. 95-17219 Filed 7-12-95; 8:45 am]
BILLING CODE 6560-50-P