ENVIRONMENTAL PROTECTION AGENCY

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