[Federal Register Volume 65, Number 162 (Monday, August 21, 2000)]
[Proposed Rules]
[Pages 50669-50672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA078-01-7211a; A-1-FRL-6854-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Massachusetts; Revisions to Stage II Vapor Recovery Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a State Implementation Plan 
(SIP) revision submitted by the Commonwealth of Massachusetts. This 
submittal contains a revised Stage II vapor recovery regulation. The 
intended effect of this action is to propose approval of Massachusetts' 
revised

[[Page 50670]]

Stage II rule. This action is being taken under the Clean Air Act 
(CAA).

DATES: Written comments must be received on or before September 20, 
2000. 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 David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, Region I, One Congress Street, Suite 
1100, Boston, MA 02114-2023. Copies of the State submittal 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 the Business Compliance Division, Bureau of Waste Prevention, 
Department of Environmental Protection, One Winter Street, 7th Floor, 
Boston, MA.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 918-1047.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

    What action is EPA taking?
    What are the CAA requirements for Stage II programs?
    What revisions did Massachusetts make to its Stage II rule?
    Why is EPA approving Massachusetts' revised Stage II rule?
    What is the process for EPA's approval of this SIP revision?

What Action is EPA Taking?

    EPA is proposing to approve Massachusetts' revised 310 CMR 7.24(6) 
``Dispensing of Vehicle Fuel'' and incorporate this rule into the 
Massachusetts SIP. The revised rule was proposed by the Massachusetts 
Department of Environmental Protection (DEP) in January 2000 and was 
submitted to EPA for parallel processing on August 9, 2000.

What Are the CAA Requirements for Stage II Programs?

    Section 182(b)(3) of the Clean Air Act (as modified by EPA's 
rulemaking under section 202(a)(6)) requires that States with serious 
or above ozone nonattainment areas adopt Stage II vapor recovery rules 
for gasoline dispensing facilities. In addition, section 184(b)(2) of 
the Clean Air Act (CAA) requires that states in the Ozone Transport 
Region adopt Stage II or comparable measures. EPA approved an early 
version of Massachusetts' Stage II rule 310 CMR 7.24(6) as 
strengthening the SIP. See 57 FR 58993 (December 14, 1992). EPA later 
approved a revised version of 310 CMR 7.24(6) as meeting the 
requirements of section 182(b)(3) and section 184(b)(2) of the CAA. See 
58 FR 48315 (September 15, 1993).

What Revisions Did Massachusetts Make to its Stage II Rule?

    In order to justify the level of emission reductions claimed in its 
SIP, Massachusetts is currently adding the following new provisions to 
its Stage II rule: (1) A provision explicitly requiring the 
installation of CARB (California Air Resources Board) approved Stage II 
systems; (2) a provision requiring annual Stage II system compliance 
testing and certification; and (3) a provision explicitly requiring 
weekly visual inspections of the Stage II system components. In 
addition, a provision addressing the direct refueling of a motor 
vehicle from a tank truck is included in Massachusetts' revised Stage 
II rule. This provision was adopted by DEP and submitted to EPA as a 
SIP revision in 1995 but has not yet been approved into the 
Massachusetts SIP. Each of the four new provisions is discussed below 
in more detail.

(1) Installation of CARB Approved Stage II Systems

    The version of 310 CMR 7.24(6) which is currently in the SIP 
requires that subject facilities install and operate a vapor collection 
and control system that recovers at least 95 percent of the vapors 
generated during the refueling of a motor vehicle. Although this 
version of the rule does not explicitly reference CARB approved Stage 
II systems, requiring CARB approved systems is the method used by the 
DEP to implement the 95 percent control requirement. See 57 FR 58993 
(December 14, 1992). The revised rule submitted on August 9, 2000 
explicitly requires CARB approved Stage II systems. In addition, 
revised 310 CMR 7.24(6)(g) contains a list of the DEP approved CARB 
Stage II Executive Orders. Also, the revised rule states that 
facilities must comply with the conditions of any new or modified 
Executive Order upon DEP revision to 310 CMR 7.24(6)(g) to incorporate 
such new or modified Executive Order. When the DEP revises the 310 CMR 
7.24(6)(g) listing of Executive Orders, the DEP will need to submit 
those revisions to EPA in order for those new orders to be compliance 
methods under the federal SIP.

(2) Annual Stage II System Compliance Testing and Certification

    The revised rule requires installation testing and compliance 
certification, as well as annual in-use compliance testing and 
certification, for all Stage II systems. The revised rule also requires 
120 day in-use compliance testing and certification for vacuum assist 
systems. In addition, the revised rule allows facilities the choice of 
submitting an alternative annual in-use compliance certification if the 
facility has passed its tests on the first try for two consecutive 
years. In this case, an annual certification attesting that the system 
is correctly operated and maintained is required but compliance tests 
may be conducted on an every other year schedule. The specific 
compliance tests to be conducted are outlined in the table below.

                   Stage II System Compliance Testing
------------------------------------------------------------------------
                              Vapor balance system  Vacuum assist system
------------------------------------------------------------------------
Installation................  Pressure Decay Test   Pressure Decay Test;
                               and Dynamic           Dynamic Pressure/
                               Pressure/Liquid       Liquid Blockage
                               Blockage Test.        Test; and Air-to-
                                                     Liquid Ratio Test.
120-day in-use..............  Not applicable......  Pressure Decay Test
                                                     and Air-to-Liquid
                                                     Ratio Test.
Annual in-use...............  Pressure Decay Test   Pressure Decay Test
                               annually and          and Air-to-Liquid
                               Dynamic Pressure/     Ratio test annually
                               Liquid Blockage       and Dynamic
                               Test every third      Pressure/Liquid
                               year.                 Blockage Test every
                                                     third year.
Alternative Annual in-use...  Pressure Decay Test   Pressure Decay Test;
                               and Dynamic           Dynamic Pressure/
                               Pressure/Liquid       Liquid Blockage
                               Blockage Test.        Test; and Air-to-
                                                     Liquid Ratio Test.
------------------------------------------------------------------------


[[Page 50671]]

    Furthermore, the revised rule also includes requirements regarding 
the Stage II compliance testing company. On or after November 15, 2000, 
any person who owns, leases, operates or controls a company that 
performs Stage II compliance tests must submit to the DEP a Stage II 
compliance testing company notification prior to performing any Stage 
II compliance tests. The revised rule requires that the testing company 
submit, at least once every two weeks, a written list to the DEP 
identifying the dates and addresses of scheduled tests to be performed 
over the next 14 day period. The revised rule also requires that 
persons conducting the tests be trained in accordance with the 
applicable testing protocols and procedures. In addition, the revised 
rule cites the specific CARB test procedures to be followed. The 
testing company must certify that each compliance test performed was 
conducted in accordance with these test procedures and must maintain 
records of compliance test results for a minimum of five years.

(3) Weekly Visual Inspections of the Stage II System Components

    The version of 310 CMR 7.24(6) that is currently in the SIP 
contains several provisions regarding maintenance of the Stage II 
system. Specifically, the rule requires that the system be maintained 
such that it recovers at least 95 percent by weight of the vapors 
displaced during the dispensing of motor vehicle fuel and requires 
``Out of Order'' signs to be placed on above ground parts of the Stage 
II system which are not fully operative until the system has been 
repaired. In addition, the rule requires that records of any failure or 
malfunction of the system, as well as records of any maintenance 
performed, be kept. The revised rule submitted on August 9, 2000 
includes similar provisions but also explicitly requires weekly visual 
inspections of a specific list of Stage II system components to be 
conducted by a person who is trained to operate and maintain the system 
in accordance with the conditions of the applicable CARB Executive 
Order. In addition, the revised rule requires that malfunctioning 
equipment that has been taken out of service be repaired or replaced 
within 14 days.

(4) Direct Refueling of a Motor Vehicle From a Tank Truck

    The revised rule requires that a tank truck engaged in the direct 
dispensing of motor vehicle fuel to a motor vehicle or a portable 
container install a CARB approved Stage II system. Tank trucks 
dispensing motor vehicle fuel to emergency motor vehicles or portable 
containers during fire fighting activities or a declared emergency 
situation are exempt from this requirement. This provision was adopted 
by DEP and submitted to EPA as a SIP revision in 1995 but has not yet 
been approved into the Massachusetts SIP.

Why is EPA Approving Massachusetts' Revised Stage II Rule?

    EPA is approving Massachusetts' revised Stage II rule because the 
revisions will significantly improve the enforceability and emission 
reductions associated with the rule. Previously, the resources DEP 
devoted to Stage II enforcement and the wording of the existing rule 
called into question the Stage II reductions assumed in the 
Massachusetts SIP. In its attainment demonstration SIP submittal, DEP 
committed to submit a revised Stage II rule. EPA's proposed rulemaking 
on the western Massachusetts attainment demonstration noted that the 
Stage II SIP submittal was one of two outstanding SIP elements that 
must be approved into the Massachusetts SIP in order for EPA to be able 
to fully approve the western Massachusetts attainment demonstration. 
See 64 FR 70319 (December 16, 1999). With the revised Stage II rule, 
along with the resources DEP is currently devoting to Stage II 
enforcement, EPA believes that the assumed level of SIP credit will be 
achieved.

What is the Process for EPA's Approval of This SIP Revision?

    EPA is soliciting public comments on the issues discussed in this 
document 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 document.
    Furthermore, EPA's proposal is based on the submittal received by 
EPA on August 9, 2000 that contains Massachusetts' preliminary final 
amendments to its Stage II rule. DEP must submit to EPA the final 
adopted version of this rule before EPA can take final action. This 
administrative procedure, known as ``parallel processing,'' is 
permitted under EPA's rules for processing SIPs in Appendix V to 40 CFR 
part 51.

Proposed Action

    EPA is proposing to approve Massachusetts' revised 310 CMR 7.24(6) 
``Dispensing of Motor Vehicle Fuel'' and incorporate this rule into the 
Massachusetts SIP.
    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.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission

[[Page 50672]]

that otherwise satisfies the provisions of the Clean Air Act.
    Thus, the requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings'' issued under the executive 
order. This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Ozone.

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

    Dated: August 11, 2000.
Mindy Lubber,
Regional Administrator, EPA New England.
[FR Doc. 00-21196 Filed 8-18-00; 8:45 am]
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