[Federal Register Volume 68, Number 244 (Friday, December 19, 2003)]
[Rules and Regulations]
[Pages 70960-70966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31235]



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Part IV





Environmental Protection Agency





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40 CFR Parts 60 and 63



Standards of Performance for Bulk Gasoline Terminals and National 
Emission Standards for Gasoline Distribution Facilities (Bulk Gasoline 
Terminals and Pipeline Breakout Stations); Final Rule

  Federal Register / Vol. 68, No. 244 / Friday, December 19, 2003 / 
Rules and Regulations  

[[Page 70960]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 63

[OAR-2002-0029, FRL-7599-9]
RIN 2060-AJ42


Standards of Performance for Bulk Gasoline Terminals and National 
Emission Standards for Gasoline Distribution Facilities (Bulk Gasoline 
Terminals and Pipeline Breakout Stations)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On August 18, 1983, we promulgated Standards of Performance 
for Bulk Gasoline Terminals (48 FR 37590). The 1983 standards of 
performance limit and control emissions of volatile organic compounds 
(VOC) that react with other pollutants to form ozone (or smog) which 
has been linked to respiratory impairment and eye irritation, and 
negatively affects vegetation and ecosystems. On December 14, 1994, we 
promulgated National Emission Standards for Gasoline Distribution 
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (59 
FR 64318). The 1994 national emission standards limit and control 
hazardous air pollutants (HAP) that are known or suspected to cause 
cancer or have other serious health or environmental effects.
    On September 20, 2002, we proposed amendments to the 1983 standards 
of performance and 1994 national emission standards to provide for the 
use of alternative leak test procedures for railcars under the 1994 
national emission standards, a clarification on monitoring flares and 
thermal oxidation systems used to comply with the 1994 national 
emission standards, alternative recordkeeping requirements for tank 
trucks and railcars under the 1983 standards of performance and 1994 
national emission standards, and the use of flare design specifications 
under the 1983 standards of performance by incorporating the allowance 
in the text of that final rule. This document takes final action on 
those proposed amendments. The amendments do not change the level of 
control or compromise the environmental protection achieved by the 1983 
standards of performance and 1994 national emission standards, but 
provide clarification and alternatives that enhance the flexibility of 
the recordkeeping and testing requirements of the two final rules.

DATES: This rule is effective December 19, 2003. The incorporation by 
reference of certain publications listed in today's final amendments is 
approved by the Director of the Federal Register as of December 19, 
2003.

ADDRESSES: Docket Nos. OAR-2002-0029 and A-92-38 contain supporting 
information used in developing the standards. The docket is located at 
the EPA Docket Center (Air Docket), Public Reading Room, Room B102, EPA 
West Building, 1301 Constitution Avenue, NW., Washington, DC, and may 
be inspected from 8:30 a.m. to 4:30 p.m., Monday through Friday, except 
for legal holidays.

FOR FURTHER INFORMATION CONTACT: For further information concerning 
applicability to a facility, contact the appropriate State or local 
agency representative. If no State or local agency representative is 
available, contact the appropriate EPA Regional Office Director listed 
in 40 CFR 63.13. For further information on compliance issues, contact 
Ms. Julie Tankersley, U.S. EPA, Office of Enforcement and Compliance 
Assurance, 2223A, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, telephone (202) 564-7002, electronic mail (e-
mail) address: [email protected]. For further information 
concerning analyses performed in the development of the final 
amendments, contact Mr. Stephen Shedd, U.S. EPA, OAQPS, Emission 
Standards Division, Waste and Chemical Processes Group (C439-03), 
Research Triangle Park, North Carolina 27711, telephone (919) 541-5397, 
facsimile number (919) 685-3195, electronic mail (e-mail) address: 
[email protected].

SUPPLEMENTARY INFORMATION:
    Regulated entities. The regulated categories and entities affected 
by this action include:

------------------------------------------------------------------------
                                                           Examples of
           Category              NAICS\a\     (SIC\b\)      regulated
                                                             entities
------------------------------------------------------------------------
Industry.....................       324110       (2911)  Operations at
                                    493190       (4226)   major sources
                                    486910       (4613)   that transfer
                                    422710       (5171)   and store
                                                          gasoline,
                                                          including
                                                          petroleum
                                                          refineries,
                                                          pipeline
                                                          breakout
                                                          stations, and
                                                          bulk
                                                          terminals.
Federal/State/local/tribal
 governments .
------------------------------------------------------------------------
\a\ North American Industry Classification System.
\b\ Standard Industrial Classification.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility would be regulated by this 
action, you should examine the applicability criteria in 40 CFR 60.500 
and 40 CFR 63.420. If you have any questions regarding the 
applicability of this action to a particular entity, consult either the 
air permit authority for the entity or the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Docket. We have established an official public docket for this 
action under Docket ID Nos. A-92-38 and OAR-2002-0029. The official 
public docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. All items may not be listed under both docket numbers, so 
interested parties should inspect both docket numbers to ensure that 
they have received all materials relevant to the final amendments. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by stature. The official public docket 
is the collection of materials that is available for public viewing at 
the Office of Air and Radiation Docket and Information Center (Air 
Docket) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 
Constitution Avenue NW., Washington, DC. The EPA Docket Center Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744. The telephone number for the Air Docket 
is (202) 566-1742. A reasonable fee may be charged for copying docket 
materials.
    Electronic Access. An electronic version of the public docket 
(Docket ID

[[Page 70961]]

No. OAR-2002-0029) is available through EPA's electronic public docket 
and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing 
of the contents of the official public docket, and to access those 
documents in the public docket that are available electronically. Once 
in the system, select ``search,'' then key in the appropriate docket 
identification number (OAR-2002-0029). Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the docket facility 
identified in the above paragraph entitled ``Docket.''
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's final amendments will also be available 
on the WWW through the Technology Transfer Network (TTN). Following 
signature, a copy of the final amendments will be posted on the TTN's 
policy and guidance page for newly proposed or promulgated rules at the 
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides 
information and technology exchange in various areas of air pollution 
control. If more information regarding the TTN is needed, call the TTN 
HELP line at (919) 541-5384.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the final amendments is available by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit by February 17, 2004. Only those objections to the 
final amendments which were raised with reasonable specificity during 
the period for public comment may be raised during judicial review. 
Under section 307(b)(2) of the CAA, the requirements that are the 
subject of today's final amendments may not be challenged later in 
civil or criminal proceedings brought by EPA to enforce these 
requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. Introduction
II. Summary of Comments and Responses
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Introduction

    We received eight public comment letters on the September 20, 2002 
proposed amendments. Six of the comment letters were from industry 
representatives, one was from a control device manufacturer, and one 
was from a State air pollution control agency. The commenters addressed 
the alternative leak test procedures for railcars, the definitions and 
monitoring requirements for flares and thermal oxidation systems, and 
the alternative recordkeeping requirements for tank trucks. The 
commenters expressed support for certain provisions of the amendments, 
disagreed with one provision, and requested an additional alternative 
to one that was proposed. This preamble summarizes the comments, 
presents our responses to the comments, and identifies changes made to 
the amendments as proposed.

II. Summary of Comments and Responses

    Comment: Several commenters (two trade organizations, three oil 
companies, and one control device manufacturer) objected to the 
proposed amendments concerning thermal oxidation systems, stating that 
the current national emission standards allow three monitoring options 
for devices they referred to as ``enclosed flares,'' which are flare-
like burner systems enclosed by a stack or other enclosure. They stated 
that the proposed amendments amounted to an unnecessary and 
inappropriate narrowing of the monitoring alternatives for enclosed 
flares. They stated that monitoring of the pilot flame provides 
adequate assurance that the enclosed flare is operating in compliance 
with the emission standard, and that the temperature monitoring 
alternative should be applied only to enclosed flares that are not 
meeting the design specification requirements of 40 CFR 63.11(b), 
operated similarly to thermal incinerators, or operated by a facility 
that prefers to use this monitoring method.
    The commenters offered several reasons why continuous temperature 
monitoring would not be appropriate for enclosed flares. They claimed 
that vapor oxidation efficiency does not directly correlate with 
combustion zone temperature in these systems. They said that 
temperature monitoring is most appropriate for thermal incinerators 
where relatively constant flow rates and compositions and, thus, a 
constant temperature, are maintained. They explained that most enclosed 
flares operate on a cyclic, on-off basis and, when designed and 
operated properly, provide for energy conservation and maximum 
emissions reductions. The commenters noted that enclosed flares are 
designed and operated just like other flares, using the same technology 
and installed in the same applications.
    Additionally, the commenters pointed out that enclosed flares may 
have to use additional supplemental fuel to achieve and maintain a 
specific temperature, which would lead to increased emissions of VOC, 
carbon monoxide, nitrogen oxides, and carbon dioxide. The amendments as 
proposed also could inadvertently promote the use of less desirable and 
less efficient open flame flares at facilities wishing to avoid the 
increased testing and monitoring requirements associated with the 
thermal oxidation definition. One commenter recommended that the 
parametric continuous monitoring requirements not be limited 
exclusively to firebox or stack temperature, and that no parametric 
monitoring methods be prohibited on a general basis as long as the 
parameter can be demonstrated to be reliable. Other commenters also 
requested that facilities continue to have the option of applying for 
an alternative operating parameter as provided in 40 CFR 63.427(a)(5).
    Response: As discussed in the proposal preamble, the design and 
operating specifications for flares in the General Provisions of 40 CFR 
part 60 and 40 CFR part 63 were developed out of necessity, due to the 
fact that flares cannot be reasonably tested using the prescribed EPA 
source test methods. Further, it is not feasible to continuously 
monitor either emissions or an operating parameter of this type of 
control system. However, the thermal oxidation systems described by the 
commenters (enclosed flares) do contain an enclosed exhaust space 
(firebox, ductwork, stack, etc.) in which performance testing and 
continuous monitoring can be performed. We would have preferred to 
require continuous emission monitoring systems (CEMS) on all control 
devices since they directly monitor emissions to the atmosphere. 
Because viable CEMS were not identified (except for carbon adsorption 
systems), our intention has always been to apply, wherever possible, 
requirements for testing and for continuous monitoring of a direct 
indicator of compliance. Combustion temperature is a good indicator of

[[Page 70962]]

performance for combustion devices. Since open flares could not be 
directly measured for emissions or firebox temperature, we felt the 
next best indicator of continuing compliance was to require flares to 
meet minimum design specifications and to monitor for the presence of a 
flame. Studies conducted by EPA indicate that open flares meeting the 
design and monitoring requirements perform at a very high level of 
efficiency. However, the flare design requirements and the requirement 
to monitor for the presence of a flame were not intended for other 
thermal oxidation systems since there are more direct means of 
monitoring proper operation and maintenance.
    While it may be possible that the types of devices described by the 
commenters are capable of operating as efficiently as open flares, the 
commenters did not provide any data or other information to demonstrate 
that a presence-of-flame indicator installed in a thermal oxidation 
system would ensure compliance with emission standards. They also did 
not describe alternate ways of ensuring that these systems are designed 
and operated properly if they were allowed to use presence-of-flame 
indicators. For compliance to be assured, the system needs to be 
properly designed, source tested initially to demonstrate compliance 
and to establish operating parameter values, and continuously monitored 
to ensure proper operation and continued compliance with the emission 
standards. We do not, however, mandate that the owner or operator 
adhere to a specific set of operating parameters to ensure continuing 
compliance. In fact, Sec.  63.427(a)(5) of the final rule allows the 
owner or operator the flexibility of monitoring any parameters that can 
be demonstrated to ensure compliance with the emission standards. 
Commenters have stated that alternative parameters (other than 
temperature) for enclosed flares have already been approved by States 
and EPA. Those alternatives are acceptable under the national emission 
standards, as long as they have been properly demonstrated and approved 
as provided under Sec.  63.427(a)(5).
    As to the impacts of maintaining a specific temperature, we do not 
specify any certain temperature, averaging time, or monitoring 
frequency. Thus, if the owner or operator chooses to monitor 
temperature, they would develop and demonstrate (while considering the 
impacts on energy and other operating costs) the most appropriate 
maximum and minimum temperature values, averaging times, and monitoring 
frequency to indicate that the device is continuously achieving the 
emission standards.
    Due to these considerations, we have retained the proposed 
definitions for ``flare'' and ``thermal oxidation system''. Further, 
Sec.  63.427(a)(5) of the final rule still allows the monitoring of 
alternative operating parameters for thermal oxidation systems, flares, 
or any other type of control device upon demonstration that the 
parameter demonstrates continuous compliance with the standards of 
performance or national emission standards.
    Comment: Two trade organizations commented that some of their 
member companies have agreements with local control agencies to 
maintain cargo tank vapor tightness documentation off-site but not 
necessarily have copies instantly available at the site. These 
facilities utilize a centralized computer system to maintain the 
records for each vehicle that would load at the terminal. Prior to 
allowing the vehicle operator to begin loading, the system 
automatically compares the vehicle identification number to the test 
records to ensure that the cargo tank has passed its test and that the 
test results have not expired. The facility maintaining the vapor 
tightness test results is able to provide a paper version to the 
terminal within a matter of minutes to hours (via facsimile), depending 
on the volume of records requested at any given time. The commenters 
said that the proposed requirement for facilities to provide the 
records ``instantly'' may prohibit these companies from continuing to 
operate using their current systems. They provided suggested rule 
language for incorporation into the 1983 standards of performance and 
1994 national emission standards that would account for the 
recordkeeping procedure used by these companies. Their suggested 
provision would allow owners and operators using an automated vehicle 
lock-out system to maintain a record system in which a copy of the test 
documentation could be made available to inspectors either during a 
visit by EPA or at some other mutually agreeable time.
    Response: The intent of the requirement for affected facilities to 
maintain vapor tightness test records is to provide a means of ensuring 
that noncertified gasoline cargo tanks do not load (or at least are not 
reloaded) at the facility. The computerized automation systems in use 
at many facilities could provide this assurance when they have the 
capability of automatically locking noncertified tanks out of the 
loading process, and when records are properly maintained and entered 
into the computerized system. Therefore, we have agreed to add this 
option in addition to what was proposed.
    Comment: Commenters agreed with all of the proposed changes for 
railcar testing. However, two of the commenters clarified a statement 
in the preamble (67 FR 59437, September 20, 2002) that, ``according to 
owners of railcars, (railcar) leases usually run from 3 to 5 years and 
require leak testing at the start or renewal of the lease.'' They 
agreed that most leases range from 3 to 5 years, but pointed out that 
the lessee determines when the leak test will be run according to the 
lessee's pre-loading procedures and/or Department of Transportation 
(DOT) requirements. The commenters stated that ``although determined by 
the lessee, it is normal practice for a leak test to be performed when 
a lessor starts a new lease, but a leak test is traditionally not 
performed when a lease is renewed by the same company until it is time 
to conduct the test during scheduled maintenance.''
    Response: After consideration of the information provided by the 
commenters, we have decided not to make any changes to the amendments 
as proposed. As discussed more fully at proposal, there are several 
factors involved in our decision to consider the DOT leak testing 
procedures as an acceptable alternative to Method 27. The DOT test 
procedures allow for no leaks during the test while Method 27 does 
allow some leakage. The DOT procedures require pre- and post-test 
inspections of the structural integrity of the cargo tank and also 
require a qualifying program for testing personnel. The EPA leak 
testing procedures do not require either of these items. Our procedures 
do, however, require an annual test while the DOT only requires testing 
once every 10 years or whenever the service equipment is reassembled on 
the tank. The difference in testing frequency is not a significant 
issue because the other factors balance the difference. Therefore, 
while we would prefer the lease to require that leak tests be performed 
and that the condition of the cargo tank be checked at the renewal of a 
lease as well as at the start of a new lease, DOT requirements control 
vapor leakage to levels equivalent to those required by the 1994 
national emission standards.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether a regulation is

[[Page 70963]]

``significant'' and, therefore, subject to Office of Management and 
Budget (OMB) review and the requirements of the Executive Order. The 
Executive Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal government communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) raise novel or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    Today's final amendments to the 1983 standards of performance and 
1994 national emission standards will reduce the recordkeeping and 
testing burden for some terminals, but we do not have an estimate of 
the number of terminals affected. Therefore, the cost impacts of the 
subject standards are less than previously estimated, but our estimates 
have not been revised. The OMB evaluated the action and determined it 
to be nonsignificant; therefore, the action did not require OMB review.

B. Paperwork Reduction Act

    The information collection requirements in the subject standards 
have been previously submitted to OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., and were approved by OMB under the 
promulgated 1983 standards of performance (OMB control number 2060-
0006-ICR 0665.06) and 1994 national emission standards (OMB control 
number 2060-0325-ICR 1659.04). A copy of the Information Collection 
Request (ICR) documents may be obtained from Susan Auby by mail at the 
Office of Environmental Information, Collection Strategies Division 
(2822T), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
by e-mail at [email protected], or by calling (202) 566-1672.
    Today's final amendments will reduce the recordkeeping and testing 
burden for some terminals. We do not have an estimate of the number of 
terminals affected by today's final amendments. Therefore, the ICR 
burden is less than previously estimated but the ICR has not been 
revised.

C. Regulatory Flexibility Analysis

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with the final 
amendments. The EPA has also determined that the final amendments will 
not have a significant economic impact on a substantial number of small 
entities.
    For purposes of assessing the impacts of today's final amendments 
on small entities, small entity is defined as: (1) A small business 
whose parent company has fewer than 100 or 1,500 employees, or a 
maximum of $5 million to $18.5 million in revenues, depending on the 
size definition for the affected North American Industry Classification 
System (NAICS) code; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field. It should be noted that the 
small business definition applied to each industry by NAICS code is 
that listed in the Small Business Administration (SBA) size standards 
(13 CFR 121). For more information on size standards for particular 
industries, please refer to the economic impact analysis in the docket.
    When EPA promulgated the 1994 national emission standards, it 
analyzed the potential impacts on small businesses, discussed the 
results of the analysis in the Federal Register, and concluded that the 
promulgated rule would not result in financial impacts that 
significantly or differentially stress affected small companies. The 
1983 standards of performance were analyzed for potential impacts on 
small businesses under the Regulatory Flexibility Act (RFA) of 1980, 
and it was determined that the RFA did not apply. We analyzed and 
considered the impacts, and no significant impacts were expected.
    After considering the economic impacts of today's final amendments 
on small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
Today's final amendments will minimize the impact on small entities by 
adding two alternatives to provide facilities with the flexibility to 
comply in the least costly manner while maintaining a workable and 
enforceable rule. Both alternatives were requested by impacted bulk 
terminal and railcar owners and operators, and we worked with them to 
develop the alternatives.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
aggregate, or by the private sector, of $100 million or more in any 1 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    The EPA has determined that today's final amendments do not contain 
a Federal mandate that may result in expenditures of $100 million or 
more to State, local, and tribal governments in the aggregate, or to 
the private sector in any 1 year. Thus, today's final action is not 
subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism

[[Page 70964]]

implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that 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.''
    Today's final amendments do 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. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to today's amendments.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    Today's final amendments do not have tribal implications. They will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to today's final amendments.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA.
    We interpret Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. Today's final amendments are 
not subject to Executive Order 13045 because they are based on 
technology performance and not on health and safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    Today's final amendments are not subject to Executive Order 13211 
(66 FR 28355, May 22, 2001) because they are not a significant 
regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal 
agencies are required to use voluntary consensus standards (VCS) in 
their regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA requires Federal agencies to provide Congress, through annual 
reports to OMB, with explanations when the agency does not use 
available and applicable VCS.
    The final amendments involve technical standards. The EPA cites DOT 
railcar procedures that reference the AAR Tank Car Manual bubble test. 
Consistent with the NTTAA, EPA conducted searches to identify VCS in 
addition to that method. The search and review results have been 
documented and are placed in the docket for the final amendments, 
Docket Nos. A-92-38 and OAR-2002-0029.
    Two VCS are cited in the final amendments as alternatives to DOT's 
bubble test. The two standards are British Standard (BS) EN-1593:1999, 
``Non-destructive Testing: Leak Testing-Bubble Emission Techniques,'' 
and ASTM E515-95 (Reapproved 2000), ``Standard Test Method for Leaks 
Using Bubble Emission Techniques.'' These two standards are discussed 
below.
    The VCS BS EN-1593 cited in the final amendments is a detailed 
method that contains procedures that are either equivalent to those of 
DOT bubble test specifications or that provide additional quality 
control, including: certification of personnel, creating a pressure 
differential, type of liquids to be used, preparation of the surface, 
dwell time appropriate for the establishment of bubble emissions, 
required surface temperature range, and specifications for direct and 
indirect visual examination procedures.
    The VCS ASTM E515 cited in the final amendments is also an 
acceptable method that contains procedures that are either equivalent 
to those of DOT bubble test specifications or provide additional 
quality control, including: the type of liquids to be used; application 
of fluid; creating a pressure differential; applying pressure before 
liquid is applied; and accuracy, repeatability, and reproducibility of 
locating leaks of 0.0001 standard cubic centimeters per second or 
greater.
    The methods that are included in the final amendments are listed in 
40 CFR 63.425(i)(2). Under 40 CFR 63.7(f) of subpart A (General 
Provisions), a source may apply to EPA for permission to use 
alternative test methods in place of any EPA testing methods.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 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. The EPA will submit a report containing these final 
amendments 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 amendments 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. 804(2). The final amendments become effective on December 19, 
2003.

List of Subjects

40 CFR Part 60

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 63

    Environmental protection, Administrative practice and procedures,

[[Page 70965]]

Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: December 12, 2003.
Michael O. Leavitt,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, parts 60 
and 63 of the Code of Federal Regulations are amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart XX--[Amended]

0
2. Section 60.501 is amended by adding in alphabetical order 
definitions for ``flare'' and ``thermal oxidation system'' to read as 
follows:


Sec.  60.501  Definitions.

* * * * *
    Flare means a thermal oxidation system using an open (without 
enclosure) flame.
* * * * *
    Thermal oxidation system means a combustion device used to mix and 
ignite fuel, air pollutants, and air to provide a flame to heat and 
oxidize hazardous air pollutants. Auxiliary fuel may be used to heat 
air pollutants to combustion temperatures.
* * * * *

0
3. Section 60.503 is amended by adding paragraphs (e) and (f) to read 
as follows:


Sec.  60.503  Test methods and procedures.

* * * * *
    (e) The performance test requirements of paragraph (c) of this 
section do not apply to flares defined in Sec.  60.501 and meeting the 
requirements in Sec.  60.18(b) through (f). The owner or operator shall 
demonstrate that the flare and associated vapor collection system is in 
compliance with the requirements in Sec. Sec.  60.18(b) through (f) and 
60.503(a), (b), and (d).
    (f) The owner or operator shall use alternative test methods and 
procedures in accordance with the alternative test method provisions in 
Sec.  60.8(b) for flares that do not meet the requirements in Sec.  
60.18(b).

0
4. Section 60.505 is amended by adding paragraph (e) to read as 
follows:


Sec.  60.505  Reporting and recordkeeping.

* * * * *
    (e) As an alternative to keeping records at the terminal of each 
gasoline cargo tank test result as required in paragraphs (a), (c), and 
(d) of this section, an owner or operator may comply with the 
requirements in either paragraph (e)(1) or (2) of this section.
    (1) An electronic copy of each record is instantly available at the 
terminal.
    (i) The copy of each record in paragraph (e)(1) of this section is 
an exact duplicate image of the original paper record with certifying 
signatures.
    (ii) The permitting authority is notified in writing that each 
terminal using this alternative is in compliance with paragraph (e)(1) 
of this section.
    (2) For facilities that utilize a terminal automation system to 
prevent gasoline cargo tanks that do not have valid cargo tank vapor 
tightness documentation from loading (e.g., via a card lock-out 
system), a copy of the documentation is made available (e.g., via 
facsimile) for inspection by permitting authority representatives 
during the course of a site visit, or within a mutually agreeable time 
frame.
    (i) The copy of each record in paragraph (e)(2) of this section is 
an exact duplicate image of the original paper record with certifying 
signatures.
    (ii) The permitting authority is notified in writing that each 
terminal using this alternative is in compliance with paragraph (e)(2) 
of this section.
* * * * *

PART 63--[AMENDED]

0
5. The authority citation for part 63 continues to read as follows:

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

0
6. Section 63.14 is amended by adding new paragraphs (b)(30) and (j) to 
read as follows:


Sec.  63.14  Incorporation by reference.

* * * * *
    (b) * * *
    (30) ASTM E 515-95 (Reapproved 2000), Standard Test Method for 
Leaks Using Bubble Emission Techniques, IBR approved for Sec.  
63.425(i)(2).
* * * * *
    (j) The following material is available for purchase from: British 
Standards Institute, 389 Chiswick High Road, London W4 4AL, United 
Kingdom.
    (1) BS EN 1593:1999, Non-destructive Testing: Leak Testing--Bubble 
Emission Techniques, IBR approved for Sec.  63.425(i)(2).
    (2) [Reserved]
* * * * *

Subpart R--[AMENDED]

0
7. Section 63.421 is amended by inserting the following definitions in 
alphabetical order as follows:


Sec.  63.421  Definitions.

* * * * *
    Flare means a thermal oxidation system using an open (without 
enclosure) flame.
* * * * *
    Thermal oxidation system means a combustion device used to mix and 
ignite fuel, air pollutants, and air to provide a flame to heat and 
oxidize hazardous air pollutants. Auxiliary fuel may be used to heat 
air pollutants to combustion temperatures.
* * * * *
0
8. Section 63.422 is amended by revising paragraph (c)(2)(i) and adding 
paragraph (e) to read as follows:


Sec.  63.422  Standards: Loading racks.

* * * * *
    (c) * * *
    (2) * * *
    (i) The tank truck or railcar gasoline cargo tank meets the test 
requirements in Sec.  63.425(e), or the railcar gasoline cargo tank 
meets applicable test requirements in Sec.  63.425(i);
* * * * *
    (e) As an alternative to 40 CFR 60.502(h) and (i) as specified in 
paragraph (a) of this section, the owner or operator may comply with 
paragraphs (e)(1) and (2) of this section.
    (1) The owner or operator shall design and operate the vapor 
processing system, vapor collection system, and liquid loading 
equipment to prevent gauge pressure in the railcar gasoline cargo tank 
from exceeding the applicable test limits in Sec.  63.425(e) and (i) 
during product loading. This level is not to be exceeded when measured 
by the procedures specified in 40 CFR 60.503(d) of this chapter.
    (2) No pressure-vacuum vent in the bulk gasoline terminal's vapor 
processing system or vapor collection system may begin to open at a 
system pressure less than the applicable test limits in Sec.  63.425(e) 
or (i).

0
9. Section 63.425 is amended by revising paragraph (a) and adding 
paragraph (i) to read as follows:


Sec.  63.425  Test methods and procedures.

    (a) Each owner or operator subject to the emission standard in 
Sec.  63.422(b) or 40 CFR 60.112b(a)(3)(ii) shall comply with the 
requirements in paragraphs (a)(1) and (2) of this section.
    (1) Conduct a performance test on the vapor processing and 
collection systems according to either paragraph (a)(1)(i) or (ii) of 
this section.
    (i) Use the test methods and procedures in 40 CFR 60.503 of this 
chapter, except a reading of 500 ppm shall be used to determine the 
level of

[[Page 70966]]

leaks to be repaired under 40 CFR 60.503(b), or
    (ii) Use alternative test methods and procedures in accordance with 
the alternative test method requirements in Sec.  63.7(f).
    (2) The performance test requirements of 40 CFR 60.503(c) do not 
apply to flares defined in Sec.  63.421 and meeting the flare 
requirements in Sec.  63.11(b). The owner or operator shall demonstrate 
that the flare and associated vapor collection system is in compliance 
with the requirements in Sec.  63.11(b) and 40 CFR 60.503(a), (b), and 
(d), respectively.
* * * * *
    (i) Railcar bubble leak test procedures. As an alternative to 
paragraph (e) of this section for annual certification leakage testing 
of gasoline cargo tanks, the owner or operator may comply with 
paragraphs (i)(1) and (2) of this section for railcar gasoline cargo 
tanks, provided the railcar tank meets the requirement in paragraph 
(i)(3) of this section.
    (1) Comply with the requirements of 49 CFR 173.31(d), 179.7, 
180.509, and 180.511 for the testing of railcar gasoline cargo tanks.
    (2) The leakage pressure test procedure required under 49 CFR 
180.509(j) and used to show no indication of leakage under 49 CFR 
180.511(f) shall be ASTM E 515-95 (incorporated by reference, see Sec.  
63.14), BS EN 1593:1999 (incorporated by reference, see Sec.  63.14), 
or another bubble leak test procedure meeting the requirements in 49 
CFR 179.7, 180.505, and 180.509.
    (3) The alternative requirements in this paragraph (i) may not be 
used for any railcar gasoline cargo tank that collects gasoline vapors 
from a vapor balance system permitted under or required by a Federal, 
State, local, or tribal agency. A vapor balance system is a piping and 
collection system designed to collect gasoline vapors displaced from a 
storage vessel, barge, or other container being loaded, and routes the 
displaced gasoline vapors into the railcar gasoline cargo tank from 
which liquid gasoline is being unloaded.
    10. Section 63.427 is amended by revising paragraphs (a)(3) and (4) 
to read as follows:


Sec.  63.427  Continuous monitoring.

    (a) * * *
    (3) Where a thermal oxidation system other than a flare is used, a 
CPMS capable of measuring temperature must be installed in the firebox 
or in the ductwork immediately downstream from the firebox in a 
position before any substantial heat exchange occurs.
    (4) Where a flare meeting the requirements in Sec.  63.11(b) is 
used, a heat-sensing device, such as an ultraviolet beam sensor or a 
thermocouple, must be installed in proximity to the pilot light to 
indicate the presence of a flame.
* * * * *

0
11. Section 63.428 is amended by revising paragraphs (b)(1), (b)(3)(i), 
and (b)(3)(viii), and by adding paragraph (k) to read as follows:


Sec.  63.428  Reporting and recordkeeping.

* * * * *
    (b) * * *
    (1) Annual certification testing performed under Sec.  63.425(e) 
and railcar bubble leak testing performed under Sec.  63.425(k); and
* * * * *
    (3) * * *
    (i) Name of test: Annual Certification Test--Method 27 (Sec.  
63.425(e)(1)); Annual Certification Test--Internal Vapor Valve (Sec.  
63.425(e)(2)); Leak Detection Test (Sec.  63.425(f)); Nitrogen Pressure 
Decay Field Test (Sec.  63.425(g)); Continuous Performance Pressure 
Decay Test (Sec.  63.425(h)); or Railcar Bubble Leak Test Procedure 
(Sec.  63.425(i)).
* * * * *
    (viii) Test results: test pressure; pressure or vacuum change, mm 
of water; time period of test; number of leaks found with instrument; 
and leak definition.
* * * * *
    (k) As an alternative to keeping records at the terminal of each 
gasoline cargo tank test result as required in paragraph (b) of this 
section, an owner or operator may comply with the requirements in 
either paragraph (k)(1) or (2) of this section.
    (1) An electronic copy of each record is instantly available at the 
terminal.
    (i) The copy of each record in paragraph (k)(1) of this section is 
an exact duplicate image of the original paper record with certifying 
signatures.
    (ii) The permitting authority is notified in writing that each 
terminal using this alternative is in compliance with paragraph (k)(1) 
of this section.
    (2) For facilities that utilize a terminal automation system to 
prevent gasoline cargo tanks that do not have valid cargo tank vapor 
tightness documentation from loading (e.g., via a card lock-out 
system), a copy of the documentation is made available (e.g., via 
facsimile) for inspection by permitting authority representatives 
during the course of a site visit, or within a mutually agreeable time 
frame.
    (i) The copy of each record in paragraph (k)(2) of this section is 
an exact duplicate image of the original paper record with certifying 
signatures.
    (ii) The permitting authority is notified in writing that each 
terminal using this alternative is in compliance with paragraph (k)(2) 
of this section.

[FR Doc. 03-31235 Filed 12-18-03; 8:45 am]
BILLING CODE 6560-50-P