[Federal Register Volume 61, Number 45 (Wednesday, March 6, 1996)]
[Rules and Regulations]
[Pages 8873-8875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5082]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-71-2-6062a; FRL-5427-4]


Approval and Promulgation of Implementation Plans--Kentucky:  
Approval of Revision To The State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the Kentucky State 
Implementation Plan (SIP) adopted by the Kentucky Natural Resources and 
Environmental Protection Cabinet (KNREP) on March 4, 1993, for the 

[[Page 8874]]
purpose of implementing a Stage II vapor recovery program in Jefferson 
County, Kentucky.

DATES: This final rule is effective May 6, 1996 unless adverse or 
critical comments are received by April 5, 1996. If the effective date 
is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to Alan 
Powell at the EPA Regional Office listed below.
    Copies of the documents relative to this action are available for 
public inspection during normal business hours at the following 
locations. The interested persons wanting to examine these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street, NE, Atlanta, Georgia 30365.
Kentucky Resources and Environmental Protection Cabinet, Department for 
Environmental Protection, Division for Air Quality, 316 St. Clair Mall, 
Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Alan Powell, Regulatory Planning and 
Development Section, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region 4 Environmental Protection Agency, 345 
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is 
404/347-3555, extension 4209. Reference file KY-71-2.

SUPPLEMENTARY INFORMATION: On November 15, 1990, the President signed 
into law the Clean Air Act Amendments of 1990. The Clean Air Act as 
amended in 1990 (CAA) includes new requirements for the improvement of 
air quality in ozone nonattainment areas. Under section 181(a) of the 
CAA, nonattainment areas were categorized by the severity of the area's 
ozone problem, and progressively more stringent control measures were 
required for each category of higher ozone concentrations. The basis 
for classifying an area in a specific category was the ambient air 
quality data obtained in the three year period 1987-1989. The CAA 
delineates in section 182 the SIP requirements for ozone nonattainment 
areas based on their classifications. Specifically, section 182(b)(3) 
requires areas classified as moderate to implement Stage II controls 
unless and until EPA promulgates On Board Vapor Recovery (OBVR) 
regulations pursuant to section 202(a)(6) of the CAA. Based on 
consultation with the National Highway Transportation Safety Board, EPA 
determined that OBVR were unsafe and therefore moderate areas must 
implement a Stage II program. On January 22, 1993, the United States 
Court of Appeals for the District of Columbia ruled that EPA's previous 
decision not to require OBVR controls be set aside and that OBVR 
regulations be promulgated pursuant to section 202(a)(6) of the CAA. 
Subsequently, EPA reached a settlement with the plaintiffs which 
required EPA to promulgate final regulations by January 22, 1994. After 
such promulgation, moderate areas will not be required to implement 
Stage II regulations, but Kentucky has indicated that the Commonwealth 
intends to continue Stage II as part of its ozone attainment plan for 
the Jefferson County, Kentucky area. The EPA Administrator signed the 
OBVR final rule on January 24, 1994.
    Under section 182(b)(3), EPA was required to issue guidance as to 
the effectiveness of Stage II systems. In November 1991, EPA issued 
technical and enforcement guidance to meet this requirement. These two 
documents are entitled ``Technical Guidance-Stage II Vapor Recovery 
Systems for Control of Vehicle Refueling Emissions at Gasoline 
Dispensing Facilities'' (EPA-450/3-91-022) and ``Enforcement Guidance 
for Stage II Vehicle Refueling Control Programs.'' In addition, on 
April 16, 1992, EPA published the ``General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990'' (57 
FR 13498). The guidance documents and the General Preamble discuss 
Stage II statutory requirements and indicate what EPA believes a State 
submittal needs to include to meet those requirements.
    The Pollution Control District of Jefferson County approved these 
regulations and on February 24, 1993, the Commonwealth of Kentucky 
granted prior concurrence according to the provision in KRS 224.20-130. 
The Jefferson County regulation is summarized as follows.

Regulation 6.40--Standards of Performance for Gasoline Transfer to 
Motor Vehicles (Stage II Vapor Recovery)

    The CAA specifies that the state regulation must apply to any 
facility that dispenses more than 10,000 gallons of gasoline per month 
or, in the case of an independent small business marketer (ISBM), any 
facility that dispenses more than 50,000 gallons of gasoline per month. 
Section 324 of the CAA defines an ISBM. The Jefferson County regulation 
does not allow the ISBM exemption and all gasoline dispensing stations 
with a throughput of more than 10,000 gallons per month must comply.
    Consistent with EPA's guidance, the regulation requires that Stage 
II systems be tested and certified to meet a 95 percent emission 
reduction efficiently by using a system approved by the California Air 
Resources Board (CARB). The regulation requires sources to verify 
proper installation and function of Stage II equipment through use of a 
liquid blockage test and a leak test prior to system operation and 
every five years or upon major modification of a facility (i.e., 75 
percent or more equipment change). The County has also established an 
inspection program consistent with that described in EPA's guidance and 
has established procedures for enforcing violations of the Stage II 
requirements.
    EPA has evaluated the Kentucky submittal for consistency with the 
CAA, EPA regulations, and EPA policy. EPA has determined that the rule 
addressed in this notice meets all of the CAA requirements and is 
approving under section 110(k)(3), Regulation 6.40 of the Air Pollution 
Control District of Jefferson County as part of the Kentucky SIP.

Final Action

    EPA is approving this revision because it meets the requirements of 
EPA and the CAA. This action is being taken without prior proposal 
because the Agency views this as a noncontroversial amendment and 
anticipates no adverse comments. However, in a separate document in 
this Federal Register publication, the EPA is proposing to approve the 
SIP revision should adverse or critical comments be filed. This action 
will be effective May 6, 1996 unless, by April 5, 1996 adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on the separate proposed 
rule. The EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective May 6, 1996.
    The Agency has reviewed this request for revision of the Federally-
approved 

[[Page 8875]]
State implementation plan for conformance with the provisions of the 
CAA. The Agency has determined that this action conforms with those 
requirements.
    Under section 307(b)(1) of the Act, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by May 6, 
1996. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for 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) of the Act, 42 U.S.C. 7607 (b)(2).)
    This action has been classified as a Table 3 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 a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a 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.
    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA 
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, EPA 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 CAA 
do not create any new requirements, but simply approve requirements 
that the Commonwealth 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 CAA, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The CAA forbids EPA 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. section 7410(a)(2) and 7410(k)(3).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Madates Act''), signed into law on March 22, 
1995, EPA 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 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under Section (insert) of the 
CAA. These rules may bind State, local and tribal governments to 
perform certain actions and also require the private sector to perform 
certain duties. EPA has examined whether the rules being approved by 
this action will impose no new requirements, since such sources are 
already subject to these regulations under State law. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action, and therefore there will be no 
significant impact on a substantial number of small entities.

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: January 10, 1996.
Phyllis P. Harris,
Acting Regional Administrator.

    52 of chapter I, title 40, 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 S--Kentucky

    2. Section 52.920, is amended by adding paragraph (c) (82) to read 
as follows:


Sec. 52.920  Identification of plan.

* * * * *
    (c) * * *
    (82) Revision to the Kentucky State Implementation Plan; Regulation 
6.40 of the Air Pollution Control District of Jefferson County which 
was submitted to EPA on March 4, 1993.
    (i) Incorporation by reference.
    Regulation 6.40 Standards of Performance for Gasoline Transfer to 
Motor Vehicles (Stage II Vapor Recovery and Control) which were adopted 
on December 16, 1992.
    (ii) Other material. None.

[FR Doc. 96-5082 Filed 3-5-96; 8:45 am]
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