Approval and Promulgation of Implementation Plan; Indiana

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IN106-1a; FRL-6446-5]

Approval and Promulgation of Implementation Plan; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving an Indiana request to amend the Stage II

Vapor Recovery rule as a revision to the State Implementation Plan

(SIP). Indiana submitted the SIP revision request on April 6, 1999. The

revision affects gasoline dispensing facilities in Clark, Floyd, Lake,

and Porter Counties. Stage II Vapor Recovery systems lower Volatile

Organic Compound (VOC) emissions from vehicle refueling operations. VOC

emissions are a precursor of ground-level ozone, commonly known as

smog.

DATES: This rule is effective on January 3, 2000, unless EPA receives

adverse written comments by December 3, 1999. If adverse written

comment is received, EPA will publish a timely withdrawal of the rule

in the Federal Register and inform the public that the rule will not

take effect.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air Programs Branch (AR-18J), U.S.

Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604. Copies of the revision request for this rulemaking

action are available for inspection at the following address: U.S.

Environmental Protection Agency, Region 5, Air and Radiation Division,

77 West Jackson Boulevard, Chicago, Illinois 60604. (It is recommended

that you telephone Francisco J. Acevedo at (312) 886-6061 before

visiting the Region 5 Office).

FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental

Protection Specialist, at (312) 886-6061.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''

``us,'', or ``our'' are used we mean EPA.

Table of Contents

I. What action is EPA proposing in this rulemaking?

II. Why is the Stage II Vapor Recovery rule approvable?

III. Where are the SIP revision rules codified?

IV. What public hearing opportunities were provided for this SIP

revision?

V. Final Rulemaking Action.

VI. Administrative Requirements.

A. Executive Order 12866

B. Executive Order 12875

C. Executive Order 13045

D. Executive Order 13084

E. Regulatory Flexibility Act

F. Unfunded Mandates

G. Submission to Congress and the Comptroller

H. National Technology Transfer and Advancement Act

I. Petitions for Judicial Review

I. What Action Is EPA Proposing in This Rulemaking?

We are approving Indiana's April 6, 1999, SIP revision request to

amend the Stage II Vapor Recovery rules promulgated by Indiana in 1993

and approved by us on April 28, 1994. The amendments we are approving

clarify the applicability of definitions pertaining to gasoline

dispensing facilities.

II. Why Are the Amendments to the Stage II Vapor Recovery Rule

Approvable?

This SIP revision does not impact the stringency of the SIP. The

definitions specific to the Stage II Vapor Recovery rules promulgated

by Indiana in 1993 and approved by us on April 28, 1994 were

incorrectly incorporated into the general provisions for all of the

volatile organic compound rules contained in Indiana rule 326 IAC

Article 8. To rectify this error and avoid future confusion, Indiana

amended the Stage II rules and relocated the definitions specific to

gasoline dispensing facilities from 326 IAC 8-1-0.5 to 326 IAC 8-4-6.

Indiana did not make any other substantive changes to the Stage II

rule; and this revision does not change the requirements of the Stage

II program originally approved. For these reasons, the amendments to

the Stage II Vapor Recovery rule are approvable.

III. Where Are the Rules for This SIP Revision Codified?

The Stage II Vapor Recovery rule amendments are codified under 326

IAC 8-1-0.5: Definitions, and 326 IAC 8-4-6: Gasoline dispensing

facilities.

The rules were published in the Indiana Register on November 1,

1995 (19 In. Reg. 202). The effective date of the rules is October 18,

1995.

IV. What Public Hearing Opportunities Were Provided for This SIP

Revision?

Indiana held public hearings on March 1, 1995, and on May 3, 1995,

in Indianapolis, Indiana.

V. Final Rulemaking Action

In this rulemaking action, we are approving the April 6, 1999, SIP

revision request, which includes technical amendments to the Stage II

Vapor recovery rule affecting gasoline dispensing facilities.

The EPA is publishing this action without prior proposal because

EPA views this as a noncontroversial revision 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 written comments be received. This action will be

effective without further notice unless EPA receives relevant adverse

written comment by December 3, 1999. Should the Agency receive such

comments, it will publish a timely withdrawal informing the public that

this action will not take effect. Any parties interested in commenting

on this action should do so at this time. If no

[[Page 59643]]

such comments are received, the public is advised that this action will

be effective on January 3, 2000.

VI. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.'' Today's rule does not

significantly or uniquely affect the communities of Indian tribal

governments. Accordingly, the requirements of section 3(b) of Executive

Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

[[Page 59644]]

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by January 3, 2000. 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, Ozone, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: September 17, 1999.

Francis X. Lyons,

Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, 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 et seq.

Subpart P--Indiana

2. Section 52.770 is amended by adding paragraph (c)(125) to read

as follows:

Sec. 52.770 Identification of Plan.

* * * * *

(c) * * *

(125) On April 6, 1999, Indiana submitted amended rules for the

control of volatile organic compound emissions from vehicle refueling

in Clark, Floyd, Lake, and Porter Counties as a revision to the State

Implementation Plan.

(i) Incorporation by reference.

326 Indiana Administrative Code 8-1: General Provisions, Section

0.5: Definitions and 326 Indiana Administrative Code 8-4: Petroleum

Sources, Section 6: Gasoline Dispensing Facilities. Adopted by the

Indiana Air Pollution Control Board May 3, 1995. Filed with the

Secretary of State September 18, 1995. Published at Indiana Register,

Volume 19, Number 2, November 1, 1995. Effective October 18, 1995.

[FR Doc. 99-28039 Filed 11-2-99; 8:45 am]

BILLING CODE 6560-50-P