[Federal Register Volume 65, Number 243 (Monday, December 18, 2000)]
[Rules and Regulations]
[Pages 78974-78977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32024]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MA078-01-7211b; A-1-FRL-6914-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving 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 approve Massachusetts' revised Stage II 
rule. This action is being taken in accordance with the Clean Air Act 
(CAA).

EFFECTIVE DATE: This rule will become effective on January 17, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA-New England, One Congress Street, 11th floor, 
Boston, MA; Air and Radiation Docket and Information Center, U.S. 
Environmental Protection Agency, Room M-1500, 401 M Street, (Mail Code 
6102), SW., Washington, DC; and Division of Air Quality Control, 
Department of Environmental Protection, One Winter Street, 8th Floor, 
Boston, MA 02108.

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

SUPPLEMENTARY INFORMATION: This section is organized as follows:

What action is EPA taking?
What revisions did Massachusetts make to its Stage II rule?
Why is EPA approving Massachusetts' revised Stage II rule?
What comments did EPA receive on its proposed approval of this rule 
and what is EPA's response to these comments?

What Action Is EPA Taking?

    EPA is approving Massachusetts' revised 310 CMR 7.24(6) 
``Dispensing of

[[Page 78975]]

Vehicle Fuel'' and incorporating this rule into the Massachusetts SIP. 
The Massachusetts Department of Environmental Protection (DEP) 
submitted the revised rule to EPA for parallel processing on August 9, 
2000 and submitted the final version of the rule on September 11, 2000. 
EPA published a notice of proposed rulemaking (NPR) for Massachusetts' 
revised Stage II rule on August 21, 2000 (65 FR 50669).

What Revisions Did Massachusetts Make to its Stage II Rule?

    In order to justify the level of emission reductions claimed in its 
SIP, Massachusetts added 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 are discussed in more detail in EPA's NPR.

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. 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 Comments Did EPA Receive on its Proposed Approval of This Rule 
and What Is EPA's Response to These Comments?

    EPA received two comment letters pursuant to the publication of its 
proposed approval of Massachusetts' revised Stage II rule. Comments 
were submitted by ExxonMobil Refining and Supply Company and by the 
Massachusetts Petroleum Council. A summary of the comments received and 
EPA's response is presented below.
    Comment #1: ExxonMobil commented that the requirements for facility 
compliance certification should be more specific in outlining who 
should certify the various operating and testing requirements, noting 
that their company owns, and directly operates with company employees, 
certain retail stores but also leases certain stores to independent 
dealer/operators who directly operate these stores with their own 
employees.
    Response: The revised 310 CMR 7.24(6)(c)(8) states, ``Any 
certification submitted *  *  * shall be signed by an individual who is 
a responsible official regarding the Stage II system *  *  *. '' The 
rule, however, is silent as to who is the appropriate responsible 
official. As stated in the response to comments document \1\ prepared 
by the DEP, the DEP intends to leave the identification of the 
responsible official to be worked out between each facility's owner, 
operator, lessee, or controller on a case-by-case basis. The DEP 
document also notes that the responsible official's compliance 
certification may rely, as necessary, on the inquiry of other parties 
who may have responsibility for various aspects of a facility's 
compliance program. Specifically, 310 CMR 7.24(c)(8)(a) requires the 
responsible official to certify that ``I personally examined the 
foregoing and am familiar with the information contained in this 
document and all the attachments and that, based on my inquiry of those 
persons immediately responsible for obtaining the information, I 
believe that the information is true, accurate and complete.'' 
(Emphasis added.) Furthermore, in response to industry's concerns, DEP 
added a provision to the final rule regarding the person immediately 
responsible for obtaining certification information. Specifically, 310 
CMR 7.24(c)(9) states, ``Any person immediately responsible for 
obtaining information referenced in 310 CMR 7.24(6)(c)(8)(a) who 
knowingly and willfully makes false, inaccurate, incomplete, or 
misleading statements pursuant to any certification or notification 
required under 310 CMR 7.24(6), may be in violation of 310 CMR 
7.24(6).'' These provisions should address the concern that, in some 
cases, the person providing the certification may not be the person 
immediately responsible for obtaining all of the information.
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    \1\ ``Response to Comments Document: Proposed Amendments to 
Stage II Vapor Recovery Program,'' September 2000.
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    Comment #2: Both commenters called into question the DEP's basis 
for adopting revisions to its Stage II vapor recovery regulation.
    Response: EPA believes there was a justifiable basis for DEP 
proceeding with revisions to its Stage II rule. Previously, EPA raised 
concerns regarding the lack of Stage II enforcement oversight by the 
DEP and the high rate of non-compliance by facilities. Specifically, 
the DEP was not conducting annual inspections of each Stage II subject 
facility as recommended in EPA's Stage II enforcement guidance.\2\ 
Also, as indicated in DEP's background document,\3\ DEP conducted 
inspections of 122 facilities in 1997 and found that only 54% of the 
inspected facilities were correctly operated and maintained. Clearly 
the DEP needed to take action to ensure that the anticipated Stage II 
emissions reductions would be achieved. Additionally, it is not 
disputed that the measures in this rule, taken as a whole, will reduce 
emissions associated with activities covered by the rule, and that the 
amended rule will be more enforceable. Disputes about the adequacy of 
the state's substantive basis for adopting these rules are matters for 
the state. Procedurally, the rule submission appears sound. Therefore, 
the comment does not provide EPA with suitable justification for 
rejecting a state submission that enhances the SIP's stringency.
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    \2\ ``Enforcement Guidance for Stage II Vehicle Refueling 
Control Programs,'' Office of Mobile Sources, October 1991.
    \3\ ``Background Document for Proposed Revisions to 310 CMR 
7.24(6) dispensing of Motor Vehicle Fuel (The State II Vapor 
Recovery Program),'' December 1999.
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    EPA is approving Massachusetts' revised Stage II rule because the 
revisions will significantly improve the enforceability and emission 
reductions associated with the rule. 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.

Final Action

    EPA is approving Massachusetts' revised 310 CMR 7.24(6) 
``Dispensing of Motor Vehicle Fuel'' and incorporating 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.

[[Page 78976]]

III. 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 (Pub.L. 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 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.).
    The Congressional Review Act, 5 U.S.C. section 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 action is not a ``major rule'' as defined by 5 U.S.C.
    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 February 16, 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, Intergovernmental relations, Ozone.

    Dated: November 28, 2000.
Mindy S. Lubber,
Regional Administrator, EPA-New England.
    Part 52 of 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 W--Massachusetts

    2. Section 52.1120 is amended by adding paragraph (c)(116) to read 
as follows:


Sec. 52.1120  Identification of plan

* * * * *
    (c) * * *
    (116) Revisions to the State Implementation Plan submitted by the 
Massachusetts Department of Environmental Protection on August 9, 2000, 
September 11, 2000 and July 25, 1995.
    (i) Incorporation by reference.
    (A) 310 CMR 7.24(6) ``Dispensing of Motor Vehicle Fuel,'' effective 
in the Commonwealth of Massachusetts on September 29, 2000.
    (B) 310 CMR 7.00 definitions of the following terms associated with 
310 CMR 7.24(6) and effective in the Commonwealth of Massachusetts on 
September 29, 2000: ``commence operation''; ``emergency situation''; 
``executive order''; ``Stage II system''; ``substantial modification''; 
``vacuum assist system''; and ``vapor balance system.''
    (C) 310 CMR 7.00 definitions of the following terms associated with 
310 CMR 7.24(6) and effective in the Commonwealth of Massachusetts on 
June 30, 1995: ``emergency motor vehicle;'' and ``tank truck.''
    (ii) Additional materials.
    (A) Nonregulatory portions of the submittal.

    3. In Sec. 52.1167, Table 52.1167 is amended by adding new entries 
to existing state citations 310 CMR 7.00 and 310 CMR 7.24(6) to read as 
follows:


Sec. 52.1167  EPA-approved Massachusetts State regulations

* * * * *

[[Page 78977]]



                                                    Table 52.1167--EPA-Approved Rules and Regulations
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                                                                     Date         Date
            State citation                   Title/subject        submitted   approved by      Federal Register      52.1120(c)    Comments/unapproved
                                                                   by State       EPA              citation                              sections
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                   *                  *                  *                  *                  *                  *                  *
310 CMR 7.00.........................  Definitions.............  07/25/95 08/    12/18/00  [Insert FR citation              116  Definitions associated
                                                                 09/00 9/11/                from published date].                 with State II vapor
                                                                          00                                                      recovery rule.
 
                   *                  *                  *                  *                  *                  *                  *
310 CMR 7.24(6)......................  Dispensing Motor Vehicle  08/09/00 09/    12/18/00  [Insert FR citation              116  Rule revised to include
                                        Fuel.                          11/00                from published date].                 annual compliance
                                                                                                                                  testing and
                                                                                                                                  certification.
 
                   *                  *                  *                  *                  *                  *                  *
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[FR Doc. 00-32024 Filed 12-15-00; 8:45 am]
BILLING CODE 6560-50-P