[Federal Register Volume 70, Number 153 (Wednesday, August 10, 2005)]
[Proposed Rules]
[Pages 46452-46459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15825]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2004-0019, FRL-7950-9]
RIN 2060-AK10


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed decision; request for public comment.

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SUMMARY: On December 14, 1994, we promulgated National Emission 
Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals 
and Pipeline Breakout Stations) (59 FR 64318). The 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.
    Section 112(f)(2) of the Clean Air Act (CAA) directs EPA to assess 
the risk remaining (residual risk) after the application of national 
emission standards controls. Also, CAA section 112(d)(6) requires us to 
review and revise the national emission standards as necessary by 
taking into account developments in practices, processes, and control 
technologies. The proposal announces a decision and requests public 
comments on the residual risk assessment and technology review for the 
national emission standards. We are proposing no further action at this 
time to revise the national emission standards.

DATES: Comments. Submit comments on or before October 11, 2005.
    Public Hearing. If anyone contacts the EPA requesting to speak at a 
public hearing by August 30, 2005, a public hearing will be held on 
September 7, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0019, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-1741.
     Mail: Air Docket, EPA, Mailcode: 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Please include a total of two copies.
     Hand Delivery: EPA, 1301 Constitution Ave., NW., Room 
B102, Washington, DC 20460. Such deliveries are only accepted during 
the Docket's normal hours of operation, and special arrangements should 
be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0019. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal

[[Page 46453]]

regulations.gov websites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The 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, and the telephone number for the Air and Radiation Docket is 
(202) 566-1742.
    Public Hearing. If a public hearing is held, it will begin at 10 
a.m. and will be held at the EPA facility complex in Research Triangle 
Park, North Carolina, or at an alternate facility nearby. Persons 
interested in presenting oral testimony or inquiring as to whether a 
public hearing is to be held must contact Mr. Stephen Shedd, listed in 
the FOR FURTHER INFORMATION CONTACT section at least 2 days in advance 
of the hearing. The public hearing will provide interested parties the 
opportunity to present data, views, or arguments concerning the 
proposed action.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proposed decision, review the reports listed in the SUPPLEMENTARY 
INFORMATION section.
    General and technical information. Mr. Stephen Shedd, U.S. EPA, 
Office of Air Quality Planning and Standards, 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].
    Residual risk assessment information. Mr. Ted Palma, U.S. EPA, 
Office of Air Quality Planning and Standards, Emission Standards 
Division, Risk and Exposure Assessment Group (C404-01), Research 
Triangle Park, North Carolina 27711, telephone (919) 541-5470, 
facsimile number (919) 541-0840, electronic mail (e-mail) address: 
[email protected].

SUPPLEMENTARY INFORMATION:
    Regulated entities. The regulated categories and entities affected 
by the national emission standards include:

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                   Category                        NAICS \a\       (SIC \b\)     Examples of regulated entities
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Industry......................................          324110          (2911)  Operations at major sources that
                                                        493190          (4226)   transfer and store gasoline,
                                                        486910          (4613)   including petroleum refineries,
                                                        424710          (5171)   pipeline breakout stations, and
                                                                                 bulk terminals.
Federal/State/local/tribal governments........  ..............  ..............  ................................
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\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 affected by the 
national emission standards. To determine whether your facility would 
be affected by the national emission standards, you should examine the 
applicability criteria in 40 CFR 63.420. If you have any questions 
regarding the applicability of the national emission standards to a 
particular entity, consult either the air permit authority for the 
entity or your EPA regional representative as listed in 40 CFR 63.13.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's proposed decision will also be available 
on the WWW through the Technology Transfer Network (TTN). Following 
signature, a copy of the proposed decision 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.
    Reports for Public Comment. We have prepared two summary documents 
covering the development of, and the rationale for, the proposed 
decision and the residual risk analyses. These documents are entitled: 
``Technology Review and Residual Risk Data Development for the Gasoline 
Distribution NESHAP,'' and ``Residual Risk Assessment for the Gasoline 
Distribution (Stage I) Source Category.'' Both documents are available 
in Docket ID Number OAR-2004-0019. See the preceding Docket section for 
docket information and availability.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
    A. What is the statutory authority for these actions?
    B. What is our approach for developing residual risk standards?
    C. What are the current standards?
II. Analyses and Results
    A. Residual risk review
    B. Technology review
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    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

[[Page 46454]]

I. Background

A. What is the statutory authority for these actions?

    Section 112 of the CAA establishes a comprehensive regulatory 
process to address emissions of HAP from stationary sources. In 
implementing this process, EPA has identified categories of sources 
emitting one or more of the HAP listed in the CAA, and gasoline 
distribution facilities were identified as one such source category. 
Section 112(d) requires us to promulgate national technology-based 
emission standards for sources within those categories that emit or 
have the potential to emit any single HAP at a rate of 10 tons or more 
per year or any combination of HAP at a rate of 25 tons or more per 
year (known as ``major sources''), as well as for certain ``area 
sources'' emitting less than those amounts. These technology-based 
national emission standards for hazardous air pollutants (NESHAP) must 
reflect the maximum reductions of HAP achievable (after considering 
cost, energy requirements, and non-air health and environmental 
impacts) and are commonly referred to as maximum achievable control 
technology (MACT) standards. EPA completed the NESHAP for gasoline 
distribution in 1994 (59 FR 64318).
    In what is referred to as the ``technology review,'' the EPA is 
required to review these technology-based standards and to revise them 
``as necessary (taking into account developments in practices, 
processes, and control technologies)'' no less frequently than every 8 
years.
    The ``residual risk'' review is described in section 112(f) of the 
CAA. Section 112(f)(2) requires us to determine for each section 112(d) 
source category whether the NESHAP protect public health with an ample 
margin of safety. If the NESHAP for HAP ``classified as a known, 
probable, or possible human carcinogen do not reduce lifetime excess 
cancer risks to the individual most exposed to emissions from a source 
in the category or subcategory to less than one in one million,'' EPA 
must promulgate residual risk standards for the source category (or 
subcategory) which provide an ample margin of safety. EPA must also 
adopt more stringent standards to prevent an adverse environmental 
effect (defined in section 112(a)(7) as ``any significant and 
widespread adverse effect * * * to wildlife, aquatic life, or natural 
resources * * *.''), but must consider cost, energy, safety, and other 
relevant factors in doing so.

B. What is our approach for developing residual risk standards?

    Following an initial determination that the risk to the individual 
most exposed to emissions from sources in the category exceeds a 1-in-1 
million lifetime excess individual cancer risk, our approach to 
developing residual risk standards is based on a two-step determination 
of acceptable risk and ample margin of safety.
    The terms ``individual most exposed,'' ``acceptable level,'' and 
``ample margin of safety'' are not specifically defined in the CAA. 
However, section 112(f)(2)(B) retains EPA's interpretation of the terms 
``acceptable level'' and ``ample margin of safety'' provided in our 
1989 rulemaking (54 FR 38044, September 14, 1989), ``National Emission 
Standards for Hazardous Air Pollutants (NESHAP): Benzene Emissions from 
Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage 
Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery 
Plants,'' (Benzene NESHAP). We read CAA section 112(f)(2)(B) as 
essentially directing EPA to use the interpretation set out in that 
notice \1\ or to utilize approaches affording at least the same level 
of protection.\2\ The EPA likewise notified Congress in its ``Residual 
Risk Report to Congress'' that EPA intended to use the Benzene NESHAP 
approach in making section 112(f) residual risk determinations.\3\
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    \1\ This reading is confirmed by the Legislative History to 
section 112(f); see, e.g., ``A Legislative History of the Clean Air 
Act Amendments of 1990,'' vol. 1, page 877 (Senate Debate on 
Conference Report).
    \2\ Legislative History, vol. 1, p. 877, stating, ``[T]he 
managers intend that the Administrator shall interpret this 
requirement [to establish standards reflecting an ample margin of 
safety] in a manner no less protective of the most exposed 
individual than the policy set forth in the Administrator's benzene 
regulations * * *.''
    \3\ ``Residual Risk Report to Congress'' at page ES-11, EPA-453/
R-99-001 (March 1999). EPA prepared this Report to Congress in 
accordance with CAA section 112(f)(1). The Report discusses (among 
other things) methods of calculating risk posed (or potentially 
posed) by sources after implementation of the NESHAP, the public 
health significance of those risks, the means and costs of 
controlling them, actual health effects to persons in proximity to 
emitting sources, and recommendations as to legislation regarding 
such remaining risk.
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    In the Benzene NESHAP (54FR 38044-45), we stated as an overall 
objective:

    [I]n protecting public health with an ample margin of safety, we 
strive to provide maximum feasible protection against risks to 
health from hazardous air pollutants by (1) protecting the greatest 
number of persons possible to an individual lifetime risk level no 
higher than approximately 1-in-1 million; and (2) limiting to no 
higher than approximately 1-in-10 thousand [i.e., 100 in a million] 
the estimated risk that a person living near a facility would have 
if he or she were exposed to the maximum pollutant concentrations 
for 70 years.

    As explained more fully in our Residual Risk Report to Congress, 
these goals are not ``rigid line[s] for acceptability,'' but rather 
broad objectives to be weighed ``with a series of other health measures 
and factors.'' \4\
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    \4\ Id. at B-4.
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    Our decisions regarding residual risk in the gasoline distribution 
source category followed the two-step framework established in the 
Benzene NESHAP and applied in the April 15, 2005 (70 FR 19992) National 
Emission Standards for Coke Oven Batteries; Final Rule (Coke Oven 
Batteries NESHAP) analysis. In the Benzene NESHAP, EPA interpreted and 
applied the two-step test drawn from the D.C. Circuit Court's Vinyl 
Chloride opinion. The first step involves determining which risks are 
``acceptable.'' In the second step, EPA must decide whether additional 
reductions are necessary to provide ``an ample margin of safety'' (54 
FR 38049). As part of this second decision, EPA may consider costs, 
technological feasibility, uncertainties, or other relevant factors.
    Further clarifying how the two steps would be conducted, EPA 
emphasized the distinction between facilitywide emissions and source 
category emissions in the Coke Oven Batteries NESHAP. In the first step 
(``acceptable risk'') and the second step (``ample margin of safety''), 
HAP emissions from the source category are considered. In the second 
step, facilitywide emissions may be considered, as discussed in the 
next paragraph. For the first step, ``* * * EPA has concluded that, in 
its assessment of `acceptable risk' for purposes of section 112(f), the 
agency will only consider the risk from emissions from that source 
category. This was the approach in the Benzene NESHAP, wherein EPA 
limited consideration of acceptability of risk to the specific sources 
under consideration * * * rather than to the accumulation of these and 
other sources of benzene emissions that may occur at an entire 
facility.'' (70 FR 19997)
    Again following the framework used in the Benzene NESHAP, in the 
second step of our decision making, we consider setting standards at a 
level which may be equal to or lower than the acceptable risk level and 
which protect public health with an ample margin of safety. In making 
this determination, we considered the estimate of health risk and other 
health information along with

[[Page 46455]]

additional factors relating to the appropriate level of control, 
including costs and economic impacts of controls, technological 
feasibility, uncertainties, and other relevant factors. As stated in 
the Coke Oven Batteries NESHAP, ``EPA believes one of the `other 
relevant factors' that may be considered in this second step is co-
location of other emission sources that augment the identified risks 
from the source category'' (70 FR 19998). In examining facilities with 
gasoline distribution sources, we did evaluate facilitywide emissions, 
but they were not considered in this ``ample margin of safety'' 
determination.

C. What are the current standards?

    The National Emission Standards for Gasoline Distribution 
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) 
(Gasoline Distribution NESHAP) were promulgated on December 14, 1994 
(59 FR 64318).
    The Gasoline Distribution NESHAP cover HAP emissions resulting from 
gasoline liquid storage and transfer operations at facilities with bulk 
gasoline terminals and pipeline breakout stations. The gasoline 
emission sources regulated by the Gasoline Distribution NESHAP are 
storage tanks, loading racks, tank truck vapor leakage, and equipment 
leaks.
    The Gasoline Distribution NESHAP regulates only those sources 
located at major sources. During the development of the NESHAP, we 
estimated that there were approximately 1,290 facilities nationwide 
(1,020 terminals and 270 pipeline stations), of which about 260 (240 
terminals and 20 pipeline stations) would be considered major and, 
therefore, subject to the NESHAP.
    Usually, these gasoline operations are located at facilities with 
other types of HAP-emitting sources (e.g., terminals, refineries, 
chemical plants, pipeline facilities). These other collocated sources 
are regulated under separate NESHAP (e.g., Refinery NESHAP, 40 CFR part 
63, subpart CC), and today's proposed decision does not purport to 
satisfy the statutory review requirements for these other sources under 
CAA section 112(f) or 112(d)(6).
    The HAP content of the gasoline vapors that escape to the 
atmosphere from gasoline distribution sources is generally from 5 to 16 
percent by weight and is dependent on the type of gasoline used (normal 
or gasoline oxygenated with methyl tert butyl ether).
    We estimated that the NESHAP would reduce emissions of nine key air 
toxics, including benzene and toluene, that are found in gasoline vapor 
by 2,300 tons annually. We also estimated that the NESHAP would reduce 
emissions of volatile organic compounds (VOC) by over 38,000 tons 
annually and result in energy savings of 10 million gallons of gasoline 
per year from collecting or preventing gasoline evaporation.

II. Analyses and Results

A. Residual Risk Review

    As required by CAA section 112(f)(2), we have prepared a risk 
assessment to determine the residual risk posed by gasoline 
distribution sources after implementation of the Gasoline Distribution 
NESHAP. As with the NESHAP, we focused on nine HAP typically found in 
gasoline vapor (referred to here as ``gasoline HAP'') and collected 
data on the emissions of these. Based on information collected from 
EPA's Regional Offices and from industry associations, we compiled a 
list of 102 facilities covered by the Gasoline Distribution NESHAP.\5\ 
Using our National Emissions Inventory (NEI) database, we were able to 
collect detailed emissions data for 69 of these facilities. Even though 
we do not have emissions information for every facility in the 
category, it is unlikely that the risk would be significantly higher 
for the other facilities in the category because the facilities we 
assessed are believed to be a representative subset of this industry.
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    \5\ This is a smaller number of facilities than we originally 
predicted would be covered by the NESHAP. During the development of 
the NESHAP, we used model facility analyses to estimate that as many 
as 260 facilities would be subject to the NESHAP. The lower number 
compiled for our risk analysis may be the result of facilities 
reducing emissions and accepting permit limits or otherwise 
demonstrating that their emissions remain below applicability 
cutoffs.
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    Because the gasoline HAP are VOC, the inhalation pathway was 
expected to be the primary route of exposure for humans, and the 
assessment of human health risk via inhalation was the focus of this 
analysis. Using the collected information, we estimated emissions, 
modeled exposure concentrations surrounding these facilities, 
calculated the risk of possible chronic cancer and noncancer health 
effects, and evaluated whether acute exposures might exceed relevant 
health thresholds.
    We considered risks attributable to the gasoline distribution 
source category in the ``acceptable risk'' and ``ample margin of 
safety'' determinations. However, HAP emissions reported in the 
available inventory databases are generally based on total, 
facilitywide emissions, and some of the HAP emissions reported for 
these facilities are from emission sources that are not in the gasoline 
distribution source category. We estimate that the contribution from 
gasoline distribution sources at the modeled facilities ranges from as 
low as 10 percent up to 100 percent of the total facilitywide emissions 
of the nine gasoline HAP.
    The modeled facility with the highest calculated maximum individual 
lifetime risk (MIR) attributable to gasoline distribution sources was 
co-located at a petroleum refinery and the MIR was estimated to be 
about 5-in-1 million. The MIR attributable to gasoline distribution 
sources at each of the other modeled facilities was estimated to be 
less than 3-in-1 million.
    Even when facilitywide emissions are included, only 20 percent of 
the facilities modeled pose greater than 1-in-1 million cancer risk. Of 
those, only four are facilities where it was determined that all of the 
reported emissions came from gasoline distribution sources, and the 
facilitywide MIR values for these four facilities were all less than 2-
in-1 million.
    The highest calculated MIR was 26-in-1 million at one facility (the 
petroleum refinery mentioned earlier) when we included all of the 
facility's reported emissions of the examined HAP without limiting the 
analysis to the gasoline distribution source category.
    Estimated annual cancer incidence was also calculated, based on 
predicted individual cancer risk and the number of people reported to 
reside in the U.S. census blocks within the modeled area around each 
facility (i.e., out to 50 kilometers). When examining emissions from 
the entire facility, without regard to source category, we found that 
for the 13 facilities for which estimated maximum individual cancer 
risk is greater than 1-in-1 million for the whole facility, the summed 
estimated cancer incidence is 0.003 cases per year. Across all 69 
facilities, the total estimated incidence is 0.004 cases per year. 
Incidence attributable to gasoline distribution sources would be about 
20 percent of those cases per year. Note that values presented here are 
estimated incremental rates based on modeled concentrations and 2000 
U.S. Census data, and they should not be interpreted as actual cancer 
incidence rates derived from observations of disease occurrence over 
time (such as cancer incidence rates that may be reported based on 
epidemiological studies).
    When examining noncancer impacts, we found that the highest 
calculated chronic noncancer hazard index was 0.2 for one of the 
facilities modeled, and that no other facilities included in the 
assessment had a chronic noncancer

[[Page 46456]]

hazard index greater than 0.2. This means that the total lifetime 
exposures to the HAP emitted by these facilities only exceeded 20 
percent of the noncancer reference concentration at one facility.
    Finally, we found that acute exposures, which were calculated by 
assuming the maximum hourly emissions rate would be twice the average 
rate of emissions, did not exceed the relevant health thresholds for 
acute effects for these HAP, even when total facility emissions were 
estimated rather than just emissions from within the gasoline 
distribution source category.
    All of this analysis can be found in our ``Technology Review and 
Residual Risk Data Development for the Gasoline Distribution NESHAP'' 
and ``Residual Risk Assessment for the Gasoline Distribution (Stage I) 
Source Category.'' See ``Reports for Public Comment'' in the 
SUPPLEMENTARY INFORMATION section above for information on obtaining 
these reports.
    In the Benzene NESHAP, we explained, ``The EPA will generally 
presume that if the risk to that individual [the MIR] is no higher than 
approximately 1 in 10 thousand, that risk level is considered 
acceptable and EPA then considers the other health and risk factors to 
complete an overall judgment on acceptability.'' Based on the risk 
estimates calculated for the gasoline distribution source category 
emissions at these 69 facilities, we have concluded that the residual 
risk for this source category is acceptable.
    Because our conservative risk estimates suggest risks exceeding 1-
in-1 million after the application of MACT, we considered the 
feasibility and costs of additional controls to reduce emissions and 
associated risks. We considered options for adding controls, increasing 
inspections, and tightening standards for each of the emissions points 
in the gasoline distribution source category. We collected information 
on whether new methods of controlling emissions existed and whether 
other States or local air agencies had adopted more stringent 
requirements. We identified options for each emission point and 
evaluated the costs and emission reduction benefits of these options. 
This analysis can be found in our ``Technology Review and Residual Risk 
Data Development for the Gasoline Distribution NESHAP.''
    Because the data for the facilities analyzed in our risk assessment 
were not sufficient to analyze the existing level of control and the 
potential for emission reductions, we examined the potential maximum 
impacts for a model bulk gasoline terminal with HAP emissions just from 
the gasoline distribution source category. We estimated that the 
maximum HAP reduction that could be expected from the model terminal 
was about 0.8 tons per year (about a 30 percent reduction). This 
emission reduction would reduce the source category's highest 
calculated MIR cancer risk from the nine HAP from a MIR of 5-in-1 
million to about 3-in-1 million.
    We estimated that achieving these reductions would involve a 
capital cost of about $700,000 and a total annualized cost of about 
$265,000. For comparison, the impacts for an average facility complying 
with the current NESHAP are estimated to be HAP reduction of nearly 9 
tons per year, a capital cost of about $450,000, and a total annualized 
cost of about $60,000. We request comments specifically addressing the 
adequacy of the model terminal analysis of potential emission 
reductions and costs, and comparing emissions from the model terminal 
to terminals analyzed in this risk analysis.\6\
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    \6\ The model gasoline bulk terminal operating parameters were 
based on information gathered during the development of the NESHAP. 
Based on the gasoline throughput, number and size of gasoline 
storage tanks, and number of loading racks, the model terminal has 
an annual emission rate (after implementation of NESHAP controls) of 
about 2.5 tons of HAP when handling only normal gasoline. According 
to the NEI database, several of the actual facilities that were 
analyzed for residual risk emit HAP at a much higher rate. We 
determined that the percentage of HAP emission reductions (and the 
estimated costs per ton of HAP emissions reduced) for additional 
controls on the model terminal would also be representative of 
larger facilities.
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    The maximum individual cancer risk for this source category is 
already below the level we presumptively consider acceptable, and 
additional control requirements would achieve minimal risk reduction at 
a very high cost. Further, the analysis has shown that both the 
noncancer and acute risks from this source category are below their 
relevant health thresholds. As a result, we concluded that no 
additional control should be required because an ample margin of safety 
(considering cost, technical feasibility, and other factors) has been 
achieved by the NESHAP for the gasoline distribution source category. 
In this conclusion, we did not consider facilitywide risk. Although we 
believe we can consider facilitywide risk as a relevant factor in 
determining an ample margin of safety, we do not have cost, technical 
feasibility and other data to analyze emission sources at the facility 
that are outside the gasoline distribution source category.
    We are also required to consider adverse impacts to the environment 
(e.g., ecological risks) as a part of a residual risk assessment. As 
previously noted, because gasoline HAP are VOC, the inhalation pathway 
was expected to be the primary route of exposure. Regarding the 
inhalation exposure pathway for terrestrial mammals, we contend that 
human toxicity values for the inhalation pathway are generally 
protective of terrestrial mammals. Because the maximum cancer and 
noncancer hazards to humans from inhalation exposure are relatively 
low, we expect there to be no significant and widespread adverse effect 
to terrestrial mammals from inhalation exposure to HAP emitted from the 
gasoline distribution source category. To ensure that the potential for 
adverse effect to wildlife (including birds) resulting from emissions 
of HAP for this source category is low, we have carried out a 
screening-level assessment of ecological effect via inhalation 
toxicity. No such adverse effect was identified. Since our results 
showed no screening-level ecological effect, we do not believe that 
there is an effect on threatened or endangered species or on their 
critical habitat within the meaning of 50 CFR 402.14(a). Because of 
these results, EPA concluded that a consultation with the Fish and 
Wildlife Service was not necessary. Thus, we have concluded that the 
level of risk resulting from the limits in the NESHAP is acceptable for 
this source category, and that changes to the NESHAP are not required 
to satisfy section 112(f) of the CAA.

B. Technology Review

    In addition to the requirements in CAA section 112(f)(2) to review 
the residual risk, section 112(d)(6) requires us to review and revise 
as necessary (taking into account developments in practices, processes, 
and control technologies) emission standards promulgated under section 
112(d) no less often than every 8 years.
    As described above, we investigated emission control levels and the 
potential for additional emission reductions from existing affected 
facilities within the gasoline distribution source category. Additional 
controls would achieve at best, minimal emission and risk reductions at 
a very high cost. We also did not identify any significant developments 
in practices, processes, or control technologies since promulgation of 
the original standards in 1994.
    For new affected facilities, we found that the best controlled 
storage tanks use the new source performance standards seal types 
already required by the NESHAP. We also found the NESHAP's 10 
milligrams standard for tank truck

[[Page 46457]]

and rail car loading to be the best control in practice. We also 
concluded that the NESHAP requirement for monthly inspections for 
equipment leaks is the best control level in practice.
    In the assessment of leak standards for tank trucks at new 
facilities, we found that California uses the same annual test method 
as the NESHAP, but the California regulations allow a maximum pressure 
change of a half inch over the five minute test for all tank trucks in 
California compared to the one inch allowed by the NESHAP. We concluded 
that the change to a lower allowable leakage rate is impractical for a 
national program. From our model facility assessment discussed earlier, 
these controls achieve small HAP reductions and have a poor HAP cost 
effectiveness. Adjusting the standards for existing sources could not 
be justified under section 112(d)(6). As a result, any revised limits 
in the NESHAP under section 112(d)(6) would only apply to affected new 
sources, and existing sources would still be subject to the current 
limits. We also concluded that potentially having different leak 
testing requirements at facilities within the same geographical area 
would be hard to implement because it would require tank truck owners 
and operators to track and understand which terminals have the 
different requirements. Thus, because there are expected to be very 
few, if any, affected new sources across the U.S. in the next 5 to 10 
years, a revised testing requirement would not apply at most terminals. 
The annual pressure testing requirement of the NESHAP is also 
considered to be the best control nationally. We concluded that the new 
source standard for leakage rates should be kept the same as that for 
existing sources and that no further revisions to the Gasoline 
Distribution NESHAP are needed. Because the NESHAP continue to 
represent the best controls that can be implemented nationally, we are 
proposing to not revise the Gasoline Distribution NESHAP under CAA 
section 112(d)(6).

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 ``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.
    It has been determined that today's proposed decision is a 
``significant regulatory action'' under the terms of Executive Order 
12866. Therefore, today's proposed decision was submitted to OMB for 
review. However, today's proposed decision will result in no additional 
cost impacts beyond those estimated for the current national emission 
standards. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements for the national 
emissions standards under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0325, EPA ICR number 1659. A copy of the OMB approved Information 
Collection Request (ICR) may be obtained from Susan Auby, Collection 
Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    EPA has established a public docket for this action, which includes 
the ICR, under Docket ID number OAR-2004-0019, which can be found in 
http://www.epa.gov/edocket. Today's proposed decision will not change 
the burden estimates from those developed and approved in 1994 for the 
national emission standards.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed decision 
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 part 121).
    After considering the economic impacts of today's proposed decision 
on small entities, I certify that the decision will not have a 
significant economic impact on a substantial number of small entities. 
The proposed decision will not impose any requirements on small 
entities. Today's proposal announces a decision and requests public 
comments on the residual risk assessment and technology review for the 
national

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emission standards and imposes no additional burden on facilities 
impacted by the national emission standards. We are proposing no 
further action at this time to revise the national emission standards. 
We continue to be interested in the potential impacts of the proposed 
decision on small entities and welcome comments on issues related to 
such impacts.

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 proposed decision does 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. Therefore, today's 
proposed decision is not subject to the requirements of sections 202 
and 205 of the UMRA. In addition, today's proposed decision does not 
significantly or uniquely affect small governments because it contains 
no requirements that apply to such governments or impose obligations 
upon them. Therefore, today's proposed decision is not subject to 
section 203 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 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 proposed decision does 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 the Executive Order do not apply to 
today's proposed decision.

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 proposed decision does not have tribal implications. It 
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 proposed 
decision.

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, the 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 the Agency.
    Today's proposed decision is not subject to the Executive Order 
because it is not economically significant as defined in Executive 
Order 12866, and because the Agency does not have reason to believe the 
environmental health or safety risk addressed by this action present a 
disproportionate risk to children. The public is invited to submit or 
identify peer-reviewed studies and data, of which the Agency may not be 
aware, that assessed results of early life exposure to gasoline 
distribution facility emissions.

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

    Today's proposed decision is not a ``significant energy action'' as 
defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that today's 
proposed decision is not likely to have any adverse energy impacts.

I. National Technology Transfer Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law No. 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

[[Page 46459]]

explanations when the agency does not use available and applicable VCS.
    Today's proposed decision does not involve technical standards. 
Therefore, the requirements of the NTTAA are not applicable.

List of Subjects for 40 CFR Part 63

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

    Dated: August 4, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-15825 Filed 8-9-05; 8:45 am]
BILLING CODE 6560-50-P