[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3294]


[[Page Unknown]]

[Federal Register: February 11, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[DE 10-1-5952; A-1-FRL-4837-2]

 

Approval and Promulgation of Implementation Plans; Delaware; 
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 Delaware's State Air Regulation No. 24, Section 36, 
Stage II Vapor Recovery and Appendix J, as a revision to the Delaware 
State Implementation Plan (SIP) for ozone. On January 11, 1993, 
Delaware submitted this SIP revision request to EPA to satisfy the 
requirements of the Clean Air Act (the Act). The Act 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. In Delaware, this revision applies 
to all three counties: New Castle, Kent, and Sussex.
DATES: Comments must be received by March 14, 1994.

ADDRESSES: Comments should be sent to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107. The State 
submittal and the technical support document (TSD) are available for 
public review at the above address and at the Delaware Department of 
Natural Resources and Environmental Control, 89 Kings Highway, Dover, 
Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 597-
6863, at the EPA Region III office listed above.

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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    New Castle and Kent counties in Delaware are designated 
nonattainment for ozone and classified as severe. See 56 FR 56694 
(November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40 
CFR 81.308. Under section 182(b)(3) of the Act, Delaware was required 
to submit Stage II vapor recovery rules for these areas by November 15, 
1992.
    The entire state of Delaware is located in the northeast Ozone 
Transport Region (OTR). See CAA section 184(a). Section 184(b)(2) of 
the Act requires all areas that are located in an OTR (including 
nonattainment areas not classified as moderate, serious, severe, or 
extreme and areas designated attainment or unclassifiable) to adopt 
Stage II regulations in accordance with section 182(b)(3) or measures 
that EPA has identified as capable of achieving equivalent reductions 
to section 182(b)(3) Stage II controls. These measures must be 
submitted within one year of EPA's completion of its Stage II 
comparability study. EPA is in the process of performing this study.
    Sussex county in Delaware is designated as nonattainment for ozone 
and is classified as marginal. See 40 CFR 81.308. The State's Stage II 
vapor recovery rules also apply in Sussex county, however the State's 
compliance schedule allows facilities in Sussex county to delay 
installation of Stage II vapor recovery equipment for two years. Delay 
of Stage II implementation in Sussex County is allowable because, as 
outlined in the discussion above, the State was not required to submit 
a SIP revision for Sussex County implementing Stage II, or comparable 
measures, until one year following the completion of EPA's 
comparability study.
    On January 11, 1993, the State of Delaware Department of Natural 
Resources & Environmental Control (DNREC) submitted to EPA Stage II 
vapor recovery rules consisting of the addition of Section 36 and 
Appendix J to Regulation No. 24 of the Delaware SIP. The Stage II vapor 
recovery rules apply to all three Delaware counties, and were adopted 
by the State on January 11, 1993. The EPA is proposing to approve this 
submittal as meeting the requirements of sections 182(b)(3) and 
184(b)(2). The EPA has reviewed the State 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 TSD, dated July 15, 
1993, which is available from the EPA Region III Office, listed above.

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. Under section 184(b)(2) of the Act, 
states within the OTR are required to adopt regulations requiring 
owners or operators of gasoline dispensing systems to install and 
operate vapor recovery (Stage II) equipment at their facilities or to 
adopt measures EPA has determined are capable of achieving comparable 
reductions to Stage II controls. Delaware has adopted Stage II measures 
for the entire state, including the marginal area of Sussex county. 
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 (gpm) or, in the case of an independent small 
business marketer (ISBM), any facility that dispenses more than 50,000 
gpm. Section 324 of the Act defines an ISBM. The State has adopted a 
general applicability requirement of 10,000 gpm and has not included a 
separate applicability for ISBMs.
    As discussed in EPA's Enforcement Guidance and the General Preamble 
(57 FR 13514), determination of a facility's throughput is calculated 
as the average volume dispensed per month for the two year period prior 
to State adoption of the regulation. The Delaware regulation's method 
for determining throughput is acceptable to EPA. Additionally, 
Delaware's regulation only exempts gasoline facilities which never 
dispense greater than 10,000 gpm in any single calendar month, and 
gasoline dispensing facilities that are used exclusively for refueling 
marine vehicles, aircraft, farm equipment, and emergency vehicles. 
These exemptions are acceptable to EPA.

II. Implementation of Stage II

    The Act specifies the time by which certain facilities must comply 
with the state regulation. These times, calculated from the time of 
State adoption of the regulation, are: (1) 6 months for facilities for 
which construction began after November 15, 1990, (2) 1 year for 
facilities that dispense greater than 100,000 gallons of gasoline per 
month, and (3) 2 years for all other facilities.
    Delaware's regulations are consistent with these requirements, even 
though Delaware did not adopt its regulations until January 11, 1993. 
Compliance dates are established as specified above, as if the 
regulations were adopted on November 15, 1992. The submitted regulation 
provides that facilities in Kent and New Castle counties must install 
and operate Stage II by: (1) May 15, 1993 for facilities for which 
construction began after November 15, 1990, (2) November 15, 1993 for 
facilities that dispense greater than 100,000 gallons of gasoline per 
month, and (3) November 15, 1994 for all other facilities. The 
installation deadlines for facilities in Sussex county are: (1) May 15, 
1995 for facilities for which construction began after November 15, 
1990, (2) November 15, 1995 for facilities that dispense greater than 
100,000 gallons of gasoline per month, and (3) November 15, 1996 for 
all other facilities.
    In addition, Stage II vapor recovery systems installed prior to 
November 15, 1992, which are designed for dual vapor recovery hoses 
(not coaxial) shall be retrofitted with coaxial hoses no later than 
January 1, 1994, or upon any vapor system modification, whichever is 
first. In addition, remote check valves in balance type systems 
installed prior to November 15, 1992, shall be retrofitted with check 
valves located in the nozzle no later than January 1, 1994, or upon any 
vapor system modification, whichever is first.

III. Additional Program Requirements

    Consistent with EPA's guidance, Delaware requires that Stage II 
systems be tested and certified to meet a 95 percent emission reduction 
efficiency by using a system approved by the California Air Resources 
Board. Delaware requires sources to verify proper installation and 
functioning of Stage II equipment through use of a liquid blockage 
(Wet) test, a vapor space tie test, a pressure decay/leak test and a 
dynamic backpressure (Dry) test prior to system operation. In addition, 
a pressure decay/leak test is required to verify proper installation 
every five years and a dynamic backpressure (Dry) test is required 
annually. Testing to ensure proper functioning of nozzle automatic 
shut-off mechanisms and flow prohibiting mechanisms are also required 
where applicable. These requirements are acceptable to EPA. Delaware's 
regulations also allow DNREC to inspect and test facilities after any 
type of system modification or repair.
    With respect to recordkeeping, Delaware has adopted those items 
recommended in EPA's guidance and specifies that sources subject to 
Stage II must make these 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, (4) training certification files, and (5) inspection and 
compliance records issued by the State. In addition, Delaware requires 
facilities that are not subject to Stage II to maintain files 
containing the gasoline throughput of the facility. DNREC plans to have 
a Department representative present for functional testing of the Stage 
II equipment at least once every three years. In addition, Delaware's 
regulations require facilities to give written notification 10 days 
prior to any test operation at a facility, and the Department also 
reserves the right to perform compliance inspections and testing at any 
time. During the Department's inspection of facilities, the State will 
have ample opportunity to examine testing records from previous years 
and will be able to enforce against non-complying facilities by 
following the paper trail of inspection and compliance records which 
all subject facilities are required to maintain. EPA approval of 
Delaware's provisions, however, should not be interpreted as a revision 
to the policy discussed in EPA's enforcement guidance. DNREC's 
authority for enforcing violations of the Stage II requirements is 
found in state law and not the Stage II regulation. Under the Delaware 
Water And Air Resources Act, 7 Del. C. Chapter 60, Sec. 6005-
Enforcement; civil and administrative penalties; the Secretary has the 
authority to enforce violations and impose civil penalties against any 
party that violates Chapter 60 or any rule or regulation duly 
promulgated thereunder. Delaware's enforcement provisions are 
acceptable to EPA.

Proposed Action

    Because EPA believes that Delaware has adopted a Stage II 
regulation in accordance with sections 182(b)(3) and 184(b)(2) of the 
Act, as interpreted in EPA's guidance, EPA is proposing to approve the 
addition of Section 36, Stage II Vapor Recovery, including Appendix J, 
to Regulation No. 24, Control of Volatile Organic Compound Emissions as 
a revision to the Delaware SIP.
    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 of Delaware's State Air Regulation No. 24, 
Section 36, Stage II Vapor Recovery and Appendix J, has been classified 
as a Table 2 action for signature by the Acting 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 waived Table 2 and Table 3 SIP revisions (54 FR 2222) from 
the requirements of section 3 of Executive Order 12291 for a period of 
two years. EPA has submitted a request for a permanent waiver for Table 
2 and 3 SIP revisions. OMB has agreed to continue the waiver until such 
time as it rules on EPA's request. This request continues in effect 
under Executive Order 12866 which superseded Executive Order 12291 on 
September 30, 1993.

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

    Dated: February 1, 1994.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
[FR Doc. 94-3294 Filed 2-10-94; 8:45 am]
BILLING CODE 6560-50-F