Approval and Promulgation of Implementation PlansKentucky: Approval of Revision To The State Implementation Plan

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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