Approval and Promulgation of Implementation Plans; Ohio

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH49-1-6072a; FRL-5082-5]

Approval and Promulgation of Implementation Plans; Ohio

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: Today USEPA is partially approving and partially disapproving,

through ``direct final'' procedure, Ohio's State Implementation Plan

(SIP) revision for implementation of a Stage II vapor recovery program.

Section 182(b)(3) of the Clean Air Act (CAA) requires all States that

have ozone nonattainment areas classified as moderate or above to

implement a Stage II vapor recovery program. The Stage II vapor

recovery program requires owners and operators of gasoline dispensing

facilities that dispense greater than 10,000 gallons of fuel per month

(50,000 gallon per month in the case of an independent small business

marketer) to install and operate gasoline vehicle refueling vapor

recovery systems. Vapor recovery systems control the release of

volatile organic compounds (VOC), benzene, and toxics emitted during

the refueling process. The USEPA is partially approving Ohio's Stage II

rule package, and disapproving Paragraph 3745-21-09(DDD)(5), which

grants the Director of the Ohio Environmental Protection Agency (OEPA)

the discretion to suspend the Stage II vapor recovery program without

prior approval of USEPA.

The USEPA is partially approving the rules since, with the

exception of Paragraph 3745-21-09(DDD)(5), the program satisfies the

criteria for approval of Stage II vapor recovery programs. The USEPA is

disapproving Paragraph 3745-21-09(DDD)(5) since it fails to satisfy the

requirements of Part D of Title I of the CAA by providing the Director

of OEPA the discretion to suspend the Stage II program without first

obtaining Federal approval. Partial approval of the State of Ohio's

Stage II submittal will incorporate the provisions of the program that

satisfy USEPA's approval criteria into the State's Federally approved

SIP.

DATES: This final rule will be effective on December 19, 1994 unless

notice is received by November 21, 1994 that any person wishes to

submit adverse or critical comments. If the effective date is delayed,

timely notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to William L. MacDowell, U.S.

Environmental Protection Agency, Region 5, (AE-17J), 77 West Jackson

Boulevard, Chicago, Illinois 60604-3590. Copies of the documents

relevant to this proposed action are available for public inspection

during normal business hours at the following address: (It is

recommended that you telephone John Paskevicz at (312) 886-6084 before

visiting the Region 5 Office). U.S. Environmental Protection Agency,

Region 5, Air and Radiation Division, 77 West Jackson Boulevard,

Chicago, Illinois 60604; and Air Docket 6102, United States

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Air Enforcement

Branch, Regulation Development Section, (AE-17J), U.S. Environmental

Protection Agency, Region 5, Chicago, Illinois, 60604, (312) 886-6084.

SUPPLEMENTARY INFORMATION:

Background

Under section 182(b)(3) of the CAA, USEPA was required to issue

guidance as to the effectiveness of Stage II systems. In November 1991,

USEPA issued technical and enforcement guidance to meet this

requirement. In addition, on April 16, 1992, USEPA published the

``General Preamble for the Implementation of Title I of the Clean Air

Act Amendments of 1990'' (General Preamble) (57 FR 13498). The guidance

documents and the General Preamble interpret the Stage II statutory

requirement and indicate the elements USEPA believes a State submittal

needs to include to meet that requirement.

On June 7, 1993, the OEPA submitted a package of reasonably

available control technology (RACT) VOC rules to USEPA for approval.

The rules for implementation of the Stage II vapor recovery program

required by section 182(b)(3) of the CAA were included in the VOC RACT

package and apply to three areas in Ohio:

(1) Cincinnati-Hamilton;

(2) Cleveland-Akron-Lorain; and

(3) Dayton-Springfield.

The USEPA is conducting this rulemaking on the Stage II vapor recovery

regulations separately from the VOC RACT rulemaking.

Section 182(b)(3) of the CAA requires States with areas designated

as moderate and above nonattainment areas for ozone to submit a SIP

revision to USEPA by November 15, 1992, requiring owners and operators

of gasoline dispensing facilities to install and operate gasoline

vehicle refueling vapor recovery systems. Section 202(a)(6) of the CAA

states that Stage II vapor recovery programs are no longer required for

moderate ozone nonattainment areas once USEPA promulgates regulations

for on-board vapor recovery systems. The final rule for on-board vapor

recovery systems has been promulgated and was published in the Federal

Register on April 6, 1994 (59 FR 16292). Ohio seeks approval for the

Stage II program for the purposes of achieving creditable VOC emissions

reductions.

The Cincinnati-Hamilton, Cleveland-Akron-Lorain, Dayton-

Springfield, and Toledo areas are designated moderate nonattainment for

ozone (see 56 FR 56694 (November 6, 1991) and 57 FR 56762 (November 30,

1992), codified at 40 CFR 81.336). Under section 182(b)(3) of the CAA,

Ohio was required to submit Stage II vapor recovery rules for these

areas by November 15, 1992. The USEPA has reviewed the State submittal

against the statutory requirements and for consistency with USEPA

guidance and is now partially approving and partially disapproving this

submittal. A summary of EPA's analysis is provided below; in addition,

a more detailed analysis of the State submittal is contained in a

Technical Support Document, dated January 28, 1994, which is available

from the Region 5 Office, listed above.

Review Criteria

USEPA reviewed the submittal against the requirements of section

182(b)(3) of the CAA, as interpreted in the General Preamble for

Implementation of title I of the Clean Air Act Amendments of 1990 (57

FR 13498, 13513 (April 16, 1992)), and two USEPA documents entitled

Technical Guidance--Stage II Vapor Recovery Systems for Control of

Vehicle Refueling Emissions at Gasoline Dispensing Facilities

(Technical Guidance) and the Enforcement Guidance for Stage II Vehicle

Refueling Control Programs (Enforcement Guidance). Specifically the

following seven general criteria need to be met for a Stage II vapor

recovery regulation to be acceptable:

(1) Installation of Stage II Controls and Determination of

Regulated Facilities. Facilities that dispense more than 10,000 gallons

per month must install and operate Stage II controls. For gasoline

dispensing facilities that are owned and operated by independent small

business marketers, the State may establish a cut-point as high as

50,000 gallons per month. In the General Preamble, USEPA indicated that

the suggested method for calculating the gallons per month dispensed by

affected facilities would be determined by calculating the average

volume of products dispensed per month for the 2 year period prior to

adoption of the rule by the State. (See General Preamble, 57 FR at

13514). The Enforcement Guidance suggests that if sufficient data is

not available for a full 2 year period, then the available months of

operation during the 2 year period should be used to calculate the

facility's average gallons per month. (See Enforcement Guidance, Sec.

3.2).

(2) After adoption by the State of the Stage II requirements,

section 182(b)(3)(B) of the CAA establishes three deadlines for the

installation and application of Stage II controls. The phase-in

schedule given in the CAA is as follows:

(a) 6 months after adoption for all facilities commencing

construction after November 15, 1990;

(b) 1 year for all facilities which dispense 100,000 gallons or

more of gasoline per month; and

(c) 2 years for all other facilities required to be regulated.

(3) System Certification. An approved system should be tested and

certified as meeting a minimum requirement of 95 percent emission

reduction efficiency. The USEPA believes that this efficiency rate has

been demonstrated to be feasible. As stated in the General Preamble,

the States may meet the testing and certification requirement by

utilizing one of the following three alternatives:

(a) A method tested and approved by the California Air Resources

Board (CARB);

(b) An equivalent testing program adopted by the State, conducted

by the Program Oversight Agency (POA) or by a third party recognized by

the POA, and submitted and approved by USEPA for incorporation in the

SIP; or

(c) A system approved by CARB. (See Enforcement Guidance, Sec.

4.2).

(4) Facility Verification of the Proper Installation and Function

of Stage II Vapor Control Systems. The General Preamble indicates in

order for the State Stage II requirement to be enforceable, the State

should require the regulated facility to verify proper installation and

function of the Stage II equipment. The Enforcement Guidance specifies

use of a Liquid Blockage Test which determines if there is an

acceptable low point in the piping, and a Leak Test, which measures the

vapor tightness of the Stage II system. The Enforcement Guidance also

states that a facility should recertify the functions of the Stage II

equipment at least every 5 years, or upon major facility modification

(75 percent or more change), whichever comes first. (See 57 FR 13514

(April 16, 1992) and Enforcement Guidance, Sec. 8.2).

(5) Recordkeeping and Reporting. In the Enforcement Guidance, USEPA

identifies various records that the State should require facilities to

keep and to make available upon request. The USEPA believes that these

documents need to be available in order to make the Stage II

requirements enforceable. These documents include:

(a) Licenses/permits to install and operate the Stage II systems;

(b) Verification of passing functional tests after inspection of

the equipment (this includes the Liquid Blockage Test, Leak Test, and

all shutoff/flow prohibiting device testing)

(c) General station file records containing initial station

information such as motor vehicle fuel throughput information;

(d) Equipment maintenance and compliance file logs containing

verification that proper maintenance has been conducted in accordance

with equipment manufacturers's specifications and requirements;

(e) Training certification files (See Enforcement Guidance, Sec.

8.0)

(6) Periodic Inspection of Regulated Facility. The State POA should

conduct a minimum of one compliance inspection per facility per year

with mandatory follow-up at facilities with violations. USEPA believes

such inspections are necessary to ensure that affected facilities are

complying with the Stage II requirements. This would result in bringing

sources that are violating the Stage II requirements into compliance.

The compliance inspection should consist of a visual inspection of the

required paperwork, and Stage II equipment, and a functional inspection

to determine if the facility's Stage II equipment is functioning

properly. (See Enforcement Guidance, Sec. 5.2(d).)

(7) Enforcement and Compliance Mechanisms. Requirement to ensure

regulated facility compliance with program requirements through

enforcement mechanisms, and a penalty schedule that establishes

appropriate penalties for facilities violating the Stage II

requirements. (See Enforcement Guidance, Sec. 5.2(e))

Results of USEPA Review

(1) Installation of Stage II Controls and Determination of Regulated

Facilities

Ohio's SIP submittal requires the installation of Stage II vapor

recovery systems on any gasoline dispensing facility that dispenses a

monthly average volume of 10,000 gallons or more. The submittal

establishes a 50,000 gallon per month cut point for independent small

business marketers of gasoline (ISBM). Ohio's definition of ISBM meets

the definition outlined in section 324 of the CAA. The submittal also

includes a requirement that affected facilities be identified by

calculating the average volume of product dispensed per month for the

two year period prior to adoption of the rule by the State. The USEPA

believes this is acceptable since it is in full compliance with the

Federal requirements.

(2) A Time Schedule for Installation of Stage II Control Equipment

The time schedule in the Ohio submittal mandates installation of

the Stage II Control equipment by:

(1) September 30, 1993, for facilities that started construction

after November 15, 1990;

(2) March 31, 1994 for facilities which started construction before

November 1, 1990, and dispense more than 100,000 gallons of motor fuel

per month; and

(3) March 31, 1995, for facilities which started construction

before November 1, 1990 and dispense less than 100,000 gallons of motor

fuel per month.

The State of Ohio's Stage II rules became effective on March 31, 1993.

Therefore, USEPA believes this time schedule for implementation is

acceptable since it is in compliance with the Federal requirements.

(3) System Certification

The Ohio rules mandate that all Stage II vapor control systems used

be certified by CARB to meet 95 percent emission reduction efficiency,

by weight. The USEPA has specified in its guidance documents that it

believes that CARB approved Stage II systems meet the CAA requirement

with no additional efficiency testing required. USEPA believes the

specified system certification in the Ohio submittal is acceptable.

(4) Verification of Proper Installation and Function of Stage II Vapor

Control Systems

The Ohio rules require that, following the installation of a Stage

II vapor control system, tests be performed to verify proper

installation and function of the systems and requires systems to be

retested after major facility modification. These tests are a leak

test, a dynamic pressure drop test, and a liquid blockage test. The

tests the State has adopted to verify proper installation and function

of the systems are not the same tests that are included in USEPA's

Technical Guidance--Stage II Vapor Recovery Systems for Control of

Vehicle Refueling at Gasoline Dispensing Facilities. The test

procedures vary significantly from those included in EPA's Guidance

and, at the time of this rulemaking, have not been adopted by the

California Air Resources Board (CARB). USEPA anticipates that the tests

Ohio EPA has included will be approved by CARB in the near future and

will serve to accurately determine proper installation and function of

the systems because these tests are actually updated versions of the

tests included in USEPA's Technical Guidance Document. However, if

these tests are not approved by CARB, then Ohio would be required to

revise its SIP so that it does not rely on these tests. USEPA finds

this to be acceptable.

(5) Recordkeeping and Reporting

Ohio has adopted the recordkeeping items recommended in USEPA's

guidance and specifies that sources subject to Stage II must make the

following documents available upon request:

(1) The quantity of gasoline delivered by the facility each

calendar month;

(2) The results of any verification tests;

(3) A log of the date and description of all repair and maintenance

work performed, or any other modifications to the vapor control system;

(4) A copy of the most recent permit to operate application

submitted to OEPA;

(5) A copy of the most recent permit to operate issued by OEPA; and

(6) Proof of attendance and completion of the training required by

OEPA. The USEPA finds these recordkeeping requirements acceptable since

they are in compliance with the Federal requirements.

(6) Periodic Inspection Requirements

The Ohio submittal contains a requirement for annual inspections of

facilities subject to the Stage II program, with mandatory follow-up

inspections at noncomplying facilities. The inspection will cover

inspection records, facility equipment, and functional testing of

equipment. The USEPA believes these inspection requirements are in

compliance with the Federal requirements.

(7) Enforcement Compliance Mechanisms

The Ohio submittal describes the measures that the State will

implement to ensure facility compliance with the program requirements.

Training and public education programs are among the enforcement

activities that OEPA will undertake. If a facility is found to be in

violation of any of the program requirements, the facility will be

issued a warning letter and provided an opportunity to develop an

acceptable compliance schedule that describes how compliance will be

achieved within a 30 day time frame. Failure to develop an acceptable

compliance schedule will result in either Findings and Orders or a

consent decree/order being issued to the facility. The Findings and

Orders or consent decree/order will include appropriate civil

penalties.

USEPA recommends that the OEPA develop a penalty schedule that

applies specifically to the Stage II Vapor Recovery Program. This

schedule should include fines and other penalties that apply specific

penalties for specific violations at facilities failing to comply with

the program requirements or to maintain the vapor recovery system.

These penalties would be in addition to any civil penalties resulting

from a Finding and Order or consent decree/order. Otherwise, a facility

could avoid maintaining its equipment, without consequence, until an

inspector has identified a violation, issued a warning letter with a 30

day compliance time frame, and failed to comply with the terms of the

decree or order.

Director's Discretion Provision

USEPA was provided several opportunities to comment on the State's

draft rules while OEPA was developing the regulations for

implementation of the Stage II vapor recovery program. On December 7,

1992, the OEPA Division of Air Pollution Control requested Region 5's

comments on draft language of Paragraph 3745-21-09(DDD)(5). OEPA

explained that the paragraph was developed after the public comment

period in response to concerns expressed by Ohio's Joint Committee on

Administrative Rules and Regulations (JCARR). On December 12, 1992,

Region 5 informed OEPA that the new section 09(DDD)(5) was

unapprovable, and presented OEPA with an alternative version of the

section which provided that the OEPA Director may exercise discretion

to suspend the Stage II program only in the event that:

(1) A redesignation request is approved by USEPA; or

(2) The Director (a) provides a demonstration to USEPA that the

Stage II program in each affected area is not necessary to ensure the

attainment and/or maintenance of the National Ambient Air Quality

Standards (NAAQS) for ozone, and (b) USEPA approves such demonstration

through a SIP revision.

The final Stage II rules package submitted by Ohio for approval on

June 7, 1993, did not incorporate the language suggested by Region 5,

but retained the unapprovable discretionary suspension provision from

the December 7, 1992, draft.

The SIP revision submitted by OEPA satisfies all of the criteria

outlined in USEPA guidance regarding the oversight and enforcement of

the Stage II program. However, Paragraphs 3745-21-09(DDD)(5)(a) and

3745-21-09(DDD)(5)(b) jeopardize the enforceability of the Stage II

vapor recovery program by granting the Director of OEPA the discretion

to suspend the program without first seeking and obtaining a SIP

revision (i.e., Federal approval). The discretionary suspension

provision poses an unacceptable threat to continuous Federal

enforceability of the requirements of the Stage II program. Therefore,

Paragraph 3745-21-09(DDD)(5), the paragraph must be disapproved.

A memorandum from John Calcagni, then Director of the Air Quality

Management Division, Office of Air Quality Planning and Standards

(OAQPS), dated July 9, 1992, provides guidance on SIP submittals that

are determined to be complete, but contain some provisions that do meet

the requirements of the CAA and other provisions that do not. In those

cases where the provisions in question are separable, the guidance

recommends partial approval of the SIP submittal.

Ohio has informed the USEPA, in a letter dated December 9, 1993,

that the State assents to partial approval of its Stage II program with

disapproval of its director's discretion provision.

Final Action

USEPA is partially approving and partially disapproving the State

of Ohio's Stage II vapor recovery program. The USEPA is only

disapproving Paragraph 3745-21-09(DDD)(5). The remainder of the program

is being approved under section 110(k)(3) of the CAA. Partial approval

of the Stage II program will result in the approved portions of the

State of Ohio's rules being incorporated into the State's Federally

approved SIP. The USEPA is disapproving Paragraph 3745-21-09(DDD)(5) of

the Ohio rules since the provision poses an unacceptable threat to

continuous Federal enforceability of the requirements of the Stage II

vapor recovery program. Disapproval of Paragraph 2745-21-09(DDD)(5) is

intended to ensure that OEPA follows the established procedures

required by title I of the CAA for suspending the program requirements.

Before suspending the Stage II program in an affected area, OEPA must

demonstrate to USEPA that the program is not necessary in the area to

ensure maintenance of the NAAQS for ozone.

Procedural Background

This action is being taken without prior proposal because the

changes are believed to be noncontroversial and USEPA anticipates no

significant comments on them. The public is advised that this action

will be effective December 19, 1994, unless notice is received by

November 21, 1994, that someone wishes to submit adverse or critical

comments. If the USEPA receives adverse comment, the direct final rule

will be withdrawn and all public comments received will be addressed in

a subsequent final rule based on a proposed rule which is published in

the proposed rule section of this Federal Register. If the effective

date is delayed, timely notice will be published in the Federal

Register.

Nothing in this action should be construed as permitting, allowing,

or establishing a precedent for any future request for revision to any

SIP. The USEPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors, and

in relation to relevant statutory and regulatory requirements.

Executive Order 12866

This action has been classified as a Table 2 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 Shapiro, Acting Assistant Administrator for Air

and Radiation. The OMB has exempted this regulatory action from

Executive Order 12866 review.

Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq.,

USEPA should 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 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.

This partial approval/partial disapproval does not create any new

requirements. Therefore, I certify that this action 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

the regulatory flexibility analysis would constitute Federal inquiry

into the economic reasonableness of the State action. The CAA forbids

USEPA to base its final partial approval/partial disapproval of Ohio's

Stage II vapor recovery program on such grounds. Union Electric Co. v.

USEPA, 427 U.S. 246, 256-66 (1976).

List of Subjects in 40 CFR Part 52

Air pollution control, Incorporation by reference,

Intergovernmental relations, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: September 16, 1994.

Michelle D. Jordan,

Acting Regional Administrator.

Part 52, chapter 1, 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.

2. Section 52.1870 is amended by adding paragraph (c)(104) to read

as follows:

Sec. 52.1870 Identification of plan.

* * * * *

(c) * * *

(104) On June 7, 1993, the Ohio Environmental Protection Agency

submitted a revision request to Ohio's ozone SIP for approval of the

State's Stage II vapor recovery program. The Stage II program

requirements apply to sources in the following areas: Cincinnati-

Hamilton; Cleveland-Akron-Lorain; and Dayton-Springfield.

(i) Incorporation by reference.

(A) Ohio Administrative Code rules 3745-21-09(DDD)(1)-(4),

effective date March 31, 1993.

[FR Doc. 94-25970 Filed 10-19-94; 8:45 am]

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