Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Stage II Vapor Recovery Regulations

Stanley L. Laskowski
Environmental Protection Agency
13 June 1994

[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]


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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.

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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