[Federal Register Volume 63, Number 182 (Monday, September 21, 1998)]
[Proposed Rules]
[Pages 50180-50183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25195]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH004-01-5814; A-1-FRL-6163-2]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Gasoline Dispensing Facilities and Gasoline Tank Trucks

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of New Hampshire on November 24, 1992. 
This revision consists of regulations to control volatile organic 
compound (VOC) emissions from gasoline dispensing facilities and from 
gasoline tank trucks. The intended effect of this action is to propose 
approval of these regulations. This action is being taken under the 
Clean Air Act.

DATES: Comments must be received on or before October 21, 1998. Public 
comments on this document are requested and will be considered before 
taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection, U.S. Environmental Protection Agency, 
Region I, JFK Federal Bldg., Boston, MA 02203. Copies of the State 
submittal and EPA's technical support document are available for public 
inspection during normal business hours, by appointment at the Office 
of Ecosystem Protection, U.S. Environmental Protection Agency, Region 
I, One Congress Street, 11th floor, Boston, MA and Air Resources 
Division, Department of Environmental Services, 64 North Main Street, 
Caller Box 2033, Concord, NH 03302-2033.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On November 25, 1992, EPA received a formal 
SIP submittal from New Hampshire containing a new regulation Part Env-A 
1205 ``Volatile Organic Compounds (VOC): Gasoline Dispensing Facilities 
and Gasoline Tank Trucks.''

I. Background

    Under the pre-amended Clean Air Act (CAA), ozone nonattainment 
areas were required to adopt reasonably available control technology 
(RACT) rules for sources of VOC emissions. EPA issued three sets of 
control technique guidelines (CTGs) documents, establishing a 
``presumptive norm'' for RACT for various categories of VOC sources. 
The three sets of CTGs were (1) Group I--issued before January 1978 (15 
CTGs); (2) Group II--issued in 1978 (9 CTGs); and (3) Group III--issued 
in the early 1980's (5 CTGs). Those sources not covered by a CTG were 
called non-CTG sources. EPA determined that the area's SIP-approved 
attainment date established which RACT rules the area needed to adopt 
and implement. Under section 172(a)(1), ozone nonattainment areas were 
generally required to attain the ozone standard by December 31, 1982. 
Those areas that submitted an attainment demonstration projecting 
attainment by that date were required to adopt RACT for sources covered 
by the Group I and II CTGs. Those areas that sought an extension of the 
attainment date under section 172(a)(2) to as late as December 31, 1987 
were required to adopt RACT for all CTG sources and for all major 
(i.e., 100 ton per year or more of VOC emissions) non-CTG sources.
    On November 15, 1990, amendments to the 1977 CAA were enacted. Pub. 
L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. Section 
182(b)(2) of the amended Act requires States to adopt RACT rules for 
all areas designated nonattainment for ozone and classified as moderate 
or above. There are three parts to the section 182(b)(2) RACT 
requirement: (1) RACT for sources covered by an existing CTG--i.e., a 
CTG issued prior to the enactment of the CAAA of 1990; (2) RACT for 
sources covered by a post-enactment CTG; and (3) all major sources not 
covered by a CTG. This RACT requirement applies to nonattainment

[[Page 50181]]

areas that previously were exempt from certain RACT requirements to 
``catch up'' to those nonattainment areas that became subject to those 
requirements during an earlier period. In addition, it requires newly 
designated ozone nonattainment areas to adopt RACT rules consistent 
with those for previously designated nonattainment areas.
    Pursuant to the amended CAA, two areas in New Hampshire were 
classified as serious ozone nonattainment areas and one area was 
classified as a marginal ozone nonattainment area. 56 FR 56694 (Nov. 6, 
1991). The serious areas are subject to the section 182(b)(2) RACT 
catch-up requirement. Also, the State of New Hampshire is located in 
the Northeast Ozone Transport Region (OTR). The entire state is, 
therefore, subject to section 184(b) of the amended CAA. Section 184(b) 
requires that RACT be implemented for all VOC sources covered by a CTG 
issued before or after enactment of the CAAA of 1990 and for all major 
VOC sources (defined as 50 tons per year for sources in the OTR). CTGs 
have been issued for several VOC source categories including gasoline 
tank trucks and gasoline dispensing facilities (Stage I vapor recovery) 
which are the source categories addressed in today's action.
    Furthermore, the CAA requires serious and above ozone nonattainment 
areas to adopt regulations which require owners and operators of 
gasoline dispensing facilities to install and operate so called ``Stage 
II'' vapor recovery equipment designed to control vapors emitted when 
vehicles are refueled (section 182(b)(3) as modified by section 
202(a)(6)). Under section 182(b)(3), New Hampshire was required to 
submit Stage II vapor recovery rules for its two serious ozone 
nonattainment areas by November 15, 1992.
    Also, section 184(b)(2) of the amended Act requires that states in 
the OTR adopt Stage II or comparable measures within one year of EPA 
completion of a study identifying control measures capable of achieving 
emissions reductions comparable to those achievable through section 
182(b)(3) Stage II vapor recovery controls. On January 13, 1995, EPA 
completed its study ``Stage II Comparability Study for the Northeast 
Ozone Transport Region'' (EPA-452/R-94-011). Therefore, states in the 
OTR must adopt Stage II or comparable measures and submit them to EPA 
as a SIP revision by January 13, 1996. EPA has recently received New 
Hampshire's Stage II comparability SIP revision. New Hampshire's 
November 24, 1992 SIP submittal which is the subject of today's 
document is not intended to satisfy that requirement.
    In response to sections 182(b)(2), 182(b)(3), and 184(b)(1)(B) of 
the CAA, New Hampshire adopted Part Env-A 1205 ``Volatile Organic 
Compounds (VOC): Gasoline Dispensing Facilities and Gasoline Tank 
Trucks'' and submitted this regulation to EPA as a SIP revision. New 
Hampshire's regulation is briefly summarized below.

New Hampshire's Env-A 1205

    This regulation requires that all gasoline storage tanks with a 
capacity equal to or greater than 250 gallons be equipped with a 
submerged fill pipe and that all storage tanks at facilities with an 
annual throughput of greater than or equal to 120,000 gallons be 
equipped with Stage I vapor recovery controls. These requirements apply 
statewide. In addition, this regulation also requires that gasoline 
tank trucks operating in the State be maintained vapor-tight and be 
tested annually. Furthermore, this rule requires that owners or 
operators of gasoline dispensing facilities, which have an annual 
throughput equal to or greater than 420,000 gallons and are located in 
the counties of Hillsborough, Merrimack, Rockingham, and Strafford, 
install and operate Stage II vapor recovery controls.
    EPA has reviewed this regulation against the applicable statutory 
requirements and for consistency with EPA guidance. New Hampshire's 
regulation and EPA's evaluation are detailed in a memorandum dated 
April 29, 1998, entitled ``Technical Support Document--New Hampshire--
Gasoline Dispensing Facilities and Gasoline Tank Trucks.'' Copies of 
that document are available, upon request, from the EPA Regional Office 
listed in the ADDRESSES section of this document. A summary of EPA's 
evaluation is provided below.

EPA's Evaluation of New Hampshire's Submittal

    In determining the approvability of a VOC RACT rule, EPA must 
evaluate the rule for consistency with the requirements of the Act and 
EPA regulations, as found in section 110 and part D of the Act and 40 
CFR part 51 (Requirements for Preparation, Adoption, and Submittal of 
Implementation Plans). The EPA interpretation of these requirements, 
which forms the basis for today's action, appears in various EPA policy 
guidance documents. For the purpose of assisting State and local 
agencies in developing RACT rules, EPA prepared a series of Control 
Technique Guidelines (CTG) documents. The CTGs are based on the 
underlying requirements of the Act and specify the presumptive norms 
for RACT for specific source categories. EPA has not yet developed CTGs 
to cover all sources of VOC emissions. Further interpretations of EPA 
policy are found in: (1) Those portions of the proposed Post-1987 ozone 
and carbon monoxide policy that concern RACT, 52 FR 45044 (November 24, 
1987); (2) the document entitled ``Issues Relating to VOC Regulation 
Cutpoints, Deficiencies, and Deviations, Clarification to Appendix D of 
November 24, 1987 Federal Register document'' (Blue Book) (notice of 
availability was published in the Federal Register on May 25, 1988); 
(3) the existing CTGs; and (4) the ``Model Volatile Organic Compound 
Rules for Reasonably Available Control Technology'' issued as a staff 
working draft in June 1992. In general, these guidance documents have 
been set forth to ensure that VOC rules are fully enforceable and 
strengthen or maintain the SIP.
    EPA has evaluated the Stage I vapor recovery and gasoline tank 
truck requirements of New Hampshire's Env-A 1205 and has found that 
they are consistent with EPA model regulations and the following EPA 
guidance documents: ``Leaks from Gasoline Tank Trucks and Vapor 
Collection Systems'' (EPA-450/2-78-051); ``Guidance to State and Local 
Agencies in Preparing Regulations to Control Volatile Organic Compounds 
from Ten Stationary Source Categories'' (EPA-450/2-79-004); and 
``Hydrocarbon Control Strategies for Gasoline Marketing Operations'' 
(EPA-450/3-78-017). As such, EPA believes that New Hampshire's 
regulation constitutes RACT for these source categories.
    EPA has also evaluated the Stage II vapor recovery requirements of 
New Hampshire's regulation for consistency with the requirements of the 
Act and EPA guidance. 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.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

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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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    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), as defined in section 324(c) of the Act, any facility 
that dispenses more than 50,000 gallons of gasoline per month. The 
scope of the control requirement in New Hampshire's rule differs from 
the formula specified in the CAA in two respects. First, the rule 
applies to facilities with an annual throughput of 420,000 gallons of 
gasoline, rather than measuring throughput on a monthly basis as 
provided in section 182(b)(3)(A). It is possible that a monthly 
threshold would capture more gas stations in the program by catching 
stations with seasonal variations in their throughput. But EPA and New 
Hampshire have documented that seasonal variation of gasoline sales 
across the state is not great, approximately three percent. Therefore, 
EPA has determined that the annual throughput threshold in New 
Hampshire's rule does not allow gas stations to go uncontrolled that 
might otherwise be captured by a monthly threshold. Moreover, along the 
New Hampshire seacoast, where one might expect to see seasonal 
variation due to summer tourist traffic, the New Hampshire stage II 
regulation covers a higher percentage of gas stations selling gasoline 
to the public than it does in inland communities. Finally, in 1992 New 
Hampshire estimated that its rule would require controls for about 84.3 
percent of gasoline throughput in the program area. Data from 1996 
demonstrate that the program actually controls 88.5 percent of all 
throughput. Second, the rule imposes one threshold for all gasoline 
stations. As noted above, the CAA specifies a lower threshold of 10,000 
gallons per month for regular stations and a higher threshold of 50,000 
gallons for ISBM's. If one assumes that New Hampshire's rule covers 
facilities that on average pump 35,000 gallons of gasoline a month, 
then the rule fails to control emissions from regular stations that 
pump between 10,000 and 35,000 gallons of fuel a month as compared with 
the CAA's minimum requirement. Correspondingly, the rule does control 
emissions from ISBM's that pump between 35,000 and 50,000 gallons a 
month that the State could allow to go uncontrolled under the CAA's 
formula.2
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    \2\ Section 182(b)(3)(A) does not preclude states from 
establishing more stringent applicability thresholds. Under sections 
116 and 324(b) states retain their authority to require Stage II 
controls at facilities in addition to those covered by section 
182(b)(3)(A).
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    Although the applicability cut-off in New Hampshire's rule differs 
from the CAA-required cut-offs, New Hampshire's SIP submittal includes 
a Stage II Equivalency Demonstration which shows that implementation of 
its applicability cut-off in the four county area results in equivalent 
VOC reductions as compared with implementation of the CAA-required 
applicability cut-offs in the four county area. Also, New Hampshire's 
Stage II requirements apply to the Manchester previously classified 
marginal ozone nonattainment area, whereas section 182(b)(3) of the CAA 
only requires that New Hampshire implement Stage II requirements in the 
state's two serious areas. New Hampshire's rule, therefore, results in 
an additional environmental benefit as compared with the section 
182(b)(3) CAA-required program. Thus, this rule creates emission 
reduction credits that are consistent with the principles outlined in 
EPA's Economic Incentive Program (EIP) rules (59 FR 16690).
    Section 182(b)(3)(B) of the Act specifies the time by which certain 
facilities must comply with the State regulation. For facilities that 
are not owned or operated by an ISBM, 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. The Stage 
II compliance schedule in New Hampshire's regulation is consistent with 
this CAA requirement.
    In accordance with EPA's guidance, New Hampshire requires the use 
of Stage II systems that have been tested and certified by the 
California Air Resources Board (CARB) as meeting a 95 percent emission 
reduction efficiency. The State also requires sources to verify proper 
installation and function of Stage II equipment through the use of a 
liquid blockage test and a leak test prior to system operation and upon 
major modification of a facility or upon written notification from the 
State. In addition, New Hampshire's rule contains recordkeeping 
requirements consistent with those recommended in EPA's guidance.
    EPA is proposing to approve the November 24, 1992 New Hampshire SIP 
revision. EPA is soliciting public comments on the issues discussed in 
this proposal or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this action.

II. Proposed Action

    EPA is proposing to approve New Hampshire's Env-A 1205 ``Volatile 
Organic Compounds (VOC): Gasoline Dispensing Facilities and Gasoline 
Tank Trucks'' as meeting the section 182(b)(2) and section 184(b)(1)(B) 
VOC RACT requirements of the CAA for the gasoline dispensing facility 
and gasoline tank truck source categories. EPA is also proposing to 
approve New Hampshire's Env-A 1205 as achieving the emission reductions 
required under section 182(b)(3) for Stage II vapor recovery in serious 
ozone nonattainment areas.

III. Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under Executive Order 12866.
    The proposed rule is not subject to Executive Order 13045, entitled 
``Protection of Children form Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

B. Regulatory Flexibility Act

    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 CAA 
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, the Administrator 
certifies that it does not have a significant impact on any small 
entities affected.

C. Unfunded Mandates

    To reduce the burden of Federal regulations on States and small 
governments, President Clinton issued Executive Order 12875 on October 
26,

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1993, entitled ``Enhancing the Intergovernmental Partnership.'' Under 
Executive Order 12875, EPA may not issue a regulation which is not 
required by statute unless the Federal Government provides the 
necessary funds to pay the direct costs incurred by the State and small 
governments or EPA provides to the Office of Management and Budget a 
description of the prior consultation and communications the agency has 
had with representatives of State and small governments and a statement 
supporting the need to issue the regulation. In addition, Executive 
Order 12875 requires EPA to develop an effective process permitting 
elected and other representatives of State and small governments ``to 
provide meaningful and timely input in the development of regulatory 
proposals containing significant unfunded mandates.''
    The present action satisfies the requirements of Executive Order 
12875 because it does not contain a significant unfunded mandate. This 
rule approves preexisting state requirements and does not impose new 
federal mandates binding on State or small governments. 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 costs to State, local, 
or tribal governments in the aggregate; or to the 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 proposed does not 
include a Federal mandate that may result in estimated 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.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 11, 1998.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 98-25195 Filed 9-18-98; 8:45 am]
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