[Federal Register Volume 59, Number 24 (Friday, February 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2591]


[[Page Unknown]]

[Federal Register: February 4, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81

[VA 23-1-5884; A-1-FRL-4834-1]

 

Approval and Promulgation of Implementation Plans; Commonwealth 
of Virginia; Stage II Vapor Recovery Regulations for Gasoline 
Dispensing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking action to 
propose approval of Title 120-01 of the Commonwealth of Virginia's 
Regulations for the Control and Abatement of Air Pollution, Part IV, 
Rule 4-37 (Petroleum Liquid Storage and Transfer Operations), 
Secs. 120-04-3701 to 120-04-3715 and Appendices P and S, as a revision 
to the Virginia State Implementation Plan (SIP) for ozone. The 
effective date for Virginia's State regulation is January 1, 1993.
    On November 5, 1992, the Commonwealth of Virginia submitted a SIP 
revision request to EPA to satisfy the Clean Air Act as amended in 1990 
(the Act), which requires all ozone nonattainment areas classified as 
moderate or worse to require owners and operators of gasoline 
dispensing facilities to install and operate Stage II vapor recovery 
equipment. This revision applies to the Virginia portion of the 
Washington, DC ozone nonattainment area and the Richmond ozone 
nonattainment area. This revision also contains several other minor 
amendments to Virginia's Rule 4-37. Although these changes do not 
necessarily pertain to the Stage II program, they will affect the non-
Stage II requirements previously established by this proposed rule.

DATES: Comments must be received by March 7, 1994.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107. 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, PA 19107; and the Virginia Department 
of Environmental Quality, P.O. Box 10089, Richmond Virginia, 23240.

FOR FURTHER INFORMATION CONTACT: Brian K. Rehn, at (215) 597-4554.

SUPPLEMENTARY INFORMATION: Under section 182(b)(3) of the Act, 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.1 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'' (General Preamble) (57 FR 13498). The 
guidance documents and the General Preamble interpret the Stage II 
statutory requirement and indicate what EPA believes a State submittal 
needs to include to meet that requirement.
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    \1\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.''
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    The Virginia portion of the Washington, DC metropolitan statistical 
area (MSA) is designated nonattainment for ozone and classified as 
serious. The Richmond MSA is also designated nonattainment for ozone, 
and is classified as moderate. See 56 FR 56694 (November 6, 1991) and 
57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.347. Under section 
182(b)(3) of the Act, Virginia was required to submit Stage II vapor 
recovery rules for these areas by November 15, 1992.
    On November 5, 1992, the Virginia Department of Air Pollution 
Control, now known as the Department of Environmental Quality (DEQ), 
submitted to EPA Stage II vapor recovery rules for the Northern 
Virginia and Richmond areas that were adopted by the Commonwealth on 
October 5, 1992. By today's action, EPA is proposing to approve this 
submittal as meeting the requirements of section 182(b)(3) of the Act. 
EPA has reviewed the Commonwealth's submittal against the statutory 
requirements and for consistency with EPA guidance. 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 for 
this action, dated September 15, 1993, which is available from the 
Region III Office, at the address listed in the ADDRESSES section 
above.

Regulatory Evaluation

I. Applicability

    Under section 182(b)(3) of the Act, states were required by 
November 15, 1992 to adopt regulations requiring owners or operators of 
gasoline dispensing systems to install and operate vapor recovery 
equipment at their facilities. Virginia has adopted Stage II measures 
for the Northern Virginia (Virginia portion of the Washington DC MSA) 
and the Richmond areas, as required by the Act.
    Section 182(b)(3)(A) of the Act specifies that Stage II controls 
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. The Commonwealth has adopted a general 
applicability requirement for those gasoline dispensing facilities 
having an average monthly throughput (as described below) of over 
10,000 gallons per month and those independent small business marketers 
dispensing over 50,000 gallons per month.
    In accordance with EPA's Enforcement Guidance and the General 
Preamble (57 FR 13514), the Commonwealth has provided that the gallons 
of gasoline dispensed per month will be the ``average monthly 
throughput''. The Commonwealth has defined this term in Sec. 120-04-
3702 of Rule 4-37 as the volume dispensed per month for the two most 
recent consecutive calendar years, or some other two year period that 
is more representative of normal operations. Downtime shall not be 
included when determining average monthly throughput. The board of the 
DEQ may allow the use of an alternative time period for calculation of 
average monthly throughput if it determines that such a period is more 
representative of normal operations at that facility.
    The Commonwealth has specified that the Stage II requirements set 
forth in Rule 4-37 apply to all gasoline dispensing facilities with an 
average monthly throughput of over 10,000 gallons (and ISBMs with 
average monthly throughput of 50,000 gallons or more), including retail 
outlets and fleet fueling facilities. Gasoline dispensing devices that 
exclusively refuel marine vessels, aircraft, farm equipment, and 
emergency vehicles are exempted under Virginia's Stage II regulation. 
The Commonwealth has determined that these exempted facilities will 
generally fall below the applicability threshold of 10,000 gallons per 
month. Additionally, many of the facilities that otherwise fall within 
these exempted categories are ineligible for exemption because they do 
not exclusively refuel vehicles within these categories.
    Section 324(c) of the Act establishes a statutory definition of an 
ISBM, which is fully set forth in the technical support document for 
this action. The Commonwealth has adopted the statutory definition of 
an ISBM in Sec. 120-04-3702 of its regulations. For clarity on the 
definition of an ISBM, the public may refer to the technical support 
document for this action or the Clean Air Act.

II. Implementation of Stage II

    Virginia adopted its regulations on October 5, 1992, and submitted 
them to EPA as a SIP revision on November 5, 1992. The Act specifies 
the times by which certain facilities must comply with a State's Stage 
II regulation, calculated from the time of State adoption of the 
regulation. For facilities that are not owned or operated by an ISBM, 
the statutory deadlines are: (1) 6 months from the time of State 
adoption (i.e. April 5, 1993 for Virginia) of the regulation for 
facilities for which construction began after November 15, 1990, (2) 1 
year from the time of State adoption of the regulation (i.e. October 5, 
1993 for Virginia) for facilities that dispense over 100,000 gallons of 
gasoline per month; and (3) 2 years from the time of State adoption 
(i.e. October 5, 1994 for Virginia) for all other facilities.
    The Commonwealth's regulation provides that subject facilities must 
install and operate Stage II: (1) Upon start-up, for facilities that 
began construction after January 1, 1993; (2) by May 15, 1993, for 
existing facilities that began construction after November 15, 1990 and 
before January 1, 1993; (3) by November 15, 1993, for existing 
facilities that began construction before November 15, 1990 and have an 
average monthly throughput of over 100,000 gallons per month; and (4) 
by November 15, 1994, for all other subject existing facilities which 
began actual construction before November 15, 1990.
    Section 182(b)(3) of the Act provides that a State's timetable for 
implementation must begin with the date of adoption of the Stage II 
rules, and then defines adoption to mean the date the State adopts the 
requirements for installation and operation of Stage II equipment. 
Although Virginia adopted its Stage II regulations on October 5, 1992, 
EPA believes that it can approve Virginia's treatment of the adoption 
date as being November 15, 1992 under the limited circumstances 
presented in this submittal, as explained below.
    EPA is proposing to approve Virginia's implementation schedule 
which began on November 15, 1992 for several reasons. First, EPA 
recognizes that the date by which the Commonwealth was required to 
adopt Stage II regulations matches the date by which the Commonwealth 
was required to submit the regulations to EPA. Thus, Virginia could 
have waited to adopt the Stage II regulations on November 15, 1992 and 
still have met the required submittal date. Second, the implementation 
date established by the Commonwealth, November 15, 1992, began shortly 
after the adoption date of the regulation. Third, the Commonwealth 
would have a limited ability to remedy this deficiency. If Virginia 
chose to withdraw it SIP revision and readopt this Stage II 
requirement, the time table could be based upon a date that is later 
than November 15, 1992. Finally, EPA believes the Virginia rule 
otherwise fulfills the Stage II requirements and will provide 
substantial air quality benefits to the regulated areas. Therefore, EPA 
believes it is in the public interest to approve and make federally 
enforceable Virginia's Stage II regulation at the earliest time 
feasible.

III. Additional Program Requirements

    Consistent with EPA's guidance, the Commonwealth requires that 
Stage II systems be tested and certified to meet a 95 percent emission 
reduction efficiency by using a system certified by the California Air 
Resources Board. Additionally, Virginia requires that Stage II systems 
employed to comply with this program utilize coaxial vapor recovery 
hose check valves that do not impede the performance of Stage II 
functional tests. The Commonwealth requires subject facilities to 
verify proper installation and function of Stage II equipment through 
use of a liquid blockage test, a vapor space tie test and a pressure 
decay/leak test prior to system operation. Additionally, every five 
years, or upon major modification of a facility (i.e. 75 percent or 
more equipment change), or if requested after an inspection by the 
Commonwealth that shows evidence of a system malfunction, the source 
must conduct a liquid blockage test and a pressure decay/leak test.
    With respect to recordkeeping, the Commonwealth has adopted those 
items recommended in EPA's guidance and specifies that sources subject 
to Stage II must make the following documents available upon request: 
(1) A license or permit to install and operate a Stage II system; (2) 
results of verification tests; (3) equipment maintenance and compliance 
file logs indicating compliance with manufacturer's specifications and 
requirements; and (4) training certification files. In addition, 
Virginia requires facilities that are not subject to Stage II to 
maintain files containing the gasoline throughput of the facility and 
make them available upon request by the DEQ.
    Virginia has indicated that it plans to conduct a compliance 
inspection for each subject facility at least one time per year with 
follow-up inspections at noncomplying facilities. These inspections 
will include both visual and functional equipment inspections. For a 
detailed listing of the tests to be conducted at the annual 
inspections, see the technical support document for this action. The 
Commonwealth has authority to enforce violations of the Stage II 
requirements, as set forth in Rule 4-37 and Virginia's policies and 
procedures document entitled, ``Procedures for Implementation of 
Regulations Covering Stage II Vapor Recovery Systems for Gasoline 
Dispensing Facilities'' (AQP-9). This enforcement authority is found in 
Sec. 10.1-1307.3 of the Code of Virginia. For further information on 
Virginia's enforcement authority and penalty limits for this program, 
please refer to the technical support document for this action.

IV. Regulatory Changes Affecting Other Petroleum Storage and Transfer 
Operations

    On October 5, 1992, Virginia's State Air Pollution Control Board 
adopted an amended version of its regulations entitled ``Regulations 
for the Control and Abatement of Air Pollution''; VR 120-01, Rule 4 37, 
Secs. 120-04-3701 to 120-04-3715 (effective date--January 1, 1993). 
Virginia submitted this revised rule to EPA on November 5, 1992 for the 
purposes of satisfying the Stage II requirements set forth in the Act. 
However, Virginia's Rule 4-37 consolidates Stage II vapor recovery 
requirements for gasoline dispensing facilities with existing 
regulations that establish Reasonably Available Control Technology 
(RACT) related to petroleum liquid storage and transfer categories, 
including: Stage I vapor recovery, floating and fixed roof petroleum 
storage tanks, and gasoline bulk plants.
    Several changes made to Rule 4-37 for the purposes of incorporating 
Stage II requirements directly affect the other petroleum transfer and 
storage requirements covered by Rule 4-37. Section 120-04-3701(D) of 
Rule 4-37 places, for the first time, the burden of proof for 
eligibility for exemption from any portion of the rule on the owner. 
Facilities seeking compliance exemptions (based upon throughput 
thresholds) for any petroleum storage and transfer operation covered by 
Rule 4-37 are now required to retain records to prove their exempt 
status.
    Section 120-04-3703(D)(3) of Rule 4-37 has been revised to change 
the applicability requirement for vapor recovery controls at gasoline 
loading bulk plants. The applicability exemption for facilities with 
average daily throughput of less than 4,000 gallons is now based upon a 
thirty day rolling average, instead of total average throughput. 
Average daily throughput must now be calculated for the two most recent 
years, for which time if this value exceeds 4,000 gallons per day, the 
facility is subject to the vapor recovery requirements for bulk plants.

V. Regulatory Changes Affecting VOC Control Areas

    The Commonwealth has revised Appendix P of Rule 4-37 to separately 
list nitrogen oxides (NOx) emissions control areas, in addition to 
listing VOC emissions control areas. The list of VOC emissions control 
areas submitted in this November 5, 1992 revision is unchanged from 
that of the May 10, 1991 SIP revision submitted to satisfy the 
requirements of section 182(a)(2)(A) of the Act--otherwise known as 
``RACT fix-ups''. Additionally, a list of NOx emission control areas 
identical to the VOC emission control areas list has been added.

Proposed Action

    Because EPA believes that the State has adopted a Stage II 
regulation in accordance with section 182(b)(3) of the Act, as 
interpreted in EPA's guidance, EPA is proposing to approve Title 120-01 
of the Commonwealth of Virginia's Regulations for the Control and 
Abatement of Air Pollution, part IV, Rule 4-37 (Petroleum Liquid 
Storage and Transfer Operations), Secs. 120-04-3701 to 120-04-3715 and 
Appendices P and S, as a revision to the Virginia State Implementation 
Plan (SIP) for ozone as meeting the requirements of sections 182(b)(3).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered 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. 600 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 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, 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 Act, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of State action. The 
Act forbids EPA to base its actions concerning SIP's 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. 7410(a)(2).
    This proposed approval action for Stage II gasoline vapor recovery 
for Virginia 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). 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 2 years (54 FR 2222). The EPA has submitted a request for a 
permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has 
agreed to continue the waiver until such time as it rules on EPA's 
request. This request is still applicable under Executive Order 12866 
which superseded Executive Order 12291 on September 30, 1993.
    The Administrator's decision to approve or disapprove Virginia's 
Stage II gasoline vapor recovery SIP revision will be based on whether 
it meets the requirements of section 110(a)(2)(A)-(K), 110(a)(3), and 
part D of the Clean Air Act, as amended, and EPA regulations in 40 CFR 
part 51.

List of Subjects in 40 CFR Part 52

    Air pollution control; Hydrocarbons; Incorporation by reference; 
Intergovernmental relations; Nitrogen oxides; Ozone; Reporting and 
recordkeeping requirements; Volatile Organic Compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: November 5, 1993.
Stanley L. Laskowski,
Acting Regional Administrator.
[FR Doc. 94-2591 Filed 2-3-94; 8:45 am]
BILLING CODE 6560-50-P