[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Proposed Rules]
[Pages 1479-1482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00161]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 89, No. 7 / Wednesday, January 10, 2024 / 
Proposed Rules  

[[Page 1479]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2022-0790; FRL-9915-01-R3]


Air Plan Approval; District of Columbia; Removal of Stage II 
Gasoline Vapor Recovery Program Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
Department of Energy and Environment (DOEE) of the District of Columbia 
(the District). This revision removes requirements for gasoline vapor 
recovery systems (VRS) installed on gasoline dispensers, the purpose of 
which are to capture emissions from vehicle refueling operations, 
otherwise known as vacuum-assist Stage II vapor recovery. Specifically, 
this action would remove from the approved SIP prior-approved Stage II 
requirements applicable to new and existing gasoline dispensing 
facilities (GDFs). The District of Columbia SIP revision includes a 
demonstration that removal of Stage II requirements is consistent with 
the Clean Air Act (CAA) and meets all relevant EPA guidance.

DATES: Written comments must be received on or before February 9, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0790 at www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Adam Lewis, Planning & Implementation 
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1600 John F. Kennedy Boulevard, Philadelphia, PA 
19103. The telephone number is (215) 814-2026. Mr. Adam Lewis can also 
be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Purpose
II. Summary of the District of Columbia's Stage II Vapor Recovery 
Program and SIP Revision
III. EPA's Evaluation of the District of Columbia's SIP Revision
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background and Purpose

    On May 18, 2022, the DOEE submitted a revision to its SIP. That SIP 
submittal consisted of the District's revised Stage II vapor recovery 
regulations at Title 20 of the District of Columbia Municipal 
Regulations (DCMR) Chapter 7 Section 705 Stage II Vapor Recovery. DOEE 
revised its regulations so new GDFs would no longer be required to 
install and operate Stage II VRS. Additionally, DOEE's revisions allow 
existing GDFs to decommission existing vacuum-assist Stage II VRS on or 
after January 1, 2022. The SIP submittal includes a demonstration that 
removal of Stage II VRS in the District will not interfere with any 
requirements concerning attainment or reasonable progress of any 
national ambient air quality standard (NAAQS), or any other applicable 
requirement of the CAA.
    Stage II vapor recovery is an emission control system that is 
installed on gasoline dispensing equipment at GDFs for the purpose of 
capturing fuel vapor that would otherwise be released from vehicle gas 
tanks into the atmosphere during vehicle refueling. Stage II VRS 
installed on dispensing equipment capture these refueling emissions at 
the dispenser and route the refueling vapors back to the GDF's 
underground storage tank, preventing volatile organic compounds (VOCs) 
in the vapors from escaping to the atmosphere. Beginning in 1998, newly 
manufactured gasoline-burning cars and trucks have been equipped with 
on-board refueling vapor recovery (ORVR) systems that utilize carbon 
canisters installed directly on the vehicle to capture refueling vapors 
in the vehicle to be later routed to the vehicle's engine for 
combustion during engine operation.
    The 1990 CAA amendments initially required implementation of both 
Stage II VRS and ORVR systems. Section 182(b)(3) of the CAA required 
areas classified as moderate and above ozone nonattainment to implement 
Stage II vapor recovery programs, while CAA section 184(b)(2) required 
states in the Northeast Ozone Transport Region (OTR) to implement Stage 
II vapor recovery or comparable measures. CAA section 202(a)(6) 
required EPA to promulgate regulations for ORVR for light-duty cars and 
trucks (passenger vehicles); EPA adopted these requirements in a final 
action published in the Federal Register (April 6, 1994, 59 FR 16262), 
(hereafter referred to as the ORVR rule). Upon the effective date of 
that final rule, moderate ozone nonattainment areas were no longer 
subject to CAA section 182(b)(3) Stage II vapor recovery requirements. 
Under the ORVR rule, new passenger cars built in model year 1998 and 
later were required to be equipped with ORVR systems, followed by model 
year 2001 and later light-duty trucks. ORVR equipment has been 
installed on nearly all new gasoline-powered light-duty cars, light-
duty trucks, and heavy-duty vehicles manufactured since 2006.\1\
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    \1\ EPA Guidance on Removing Stage II Gasoline Vapor Control 
Programs from State Implementation Plans and Assessing Comparable 
Measures, (August 7, 2012), hereafter referred to as EPA's Stage II 
Removal Guidance www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20120807_page_stage2_removal_guidance.pdf.

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[[Page 1480]]

    During the phase-in of ORVR controls, Stage II vapor recovery has 
provided VOC emission reductions in ozone nonattainment areas and in 
certain areas of the OTR. Congress recognized that ORVR systems and 
Stage II VRS would over time become largely redundant technologies 
acting to capture the same pollutants; Congress therefore provided 
authority in the 1990 CAA amendments for EPA to allow states to remove 
Stage II vapor recovery programs from their SIPs upon EPA making a 
finding that ORVR is in ``widespread use.'' \2\ EPA issued a widespread 
use finding in a final rule published in the Federal Register (May 16, 
2012, 77 FR 28772), in which EPA determined that ORVR was in widespread 
use on a nationwide basis. EPA estimated that by the end of 2016, more 
than 88 percent of gasoline refueling nationwide would occur with ORVR-
equipped vehicles. As noted in EPA's Stage II Removal Guidance, Stage 
II vapor recovery programs have become largely redundant control 
systems for ORVR-equipped vehicles and, as a result, Stage II VRS 
achieve ever-declining emissions benefits as more ORVR-equipped 
vehicles continue to enter the on-road motor vehicle fleet. In areas 
where certain types of vacuum-assist Stage II VRS are used, such as the 
District, the incompatibility between ORVR systems and certain 
configurations of Stage II vapor recovery systems results in the 
reduction of overall control system efficiency in capturing VOC 
refueling emissions, compared to what would otherwise be achieved by 
ORVR or Stage II VRS acting in the absence of the other. In its May 16, 
2012 (77 FR 28772) widespread use rulemaking, EPA also exercised its 
authority under CAA section 202(a)(6) to waive certain Federal 
statutory requirements for Stage II VRS at GDFs, which among other 
things, exempted all new ozone nonattainment areas classified serious 
or above from the requirement to adopt Stage II vapor recovery 
programs. Finally, EPA's May 16, 2012 (77 FR 28772) rulemaking also 
noted that any state currently implementing a Stage II vapor recovery 
program may submit SIP revisions that would allow for the phase-out of 
Stage II VRS.
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    \2\ See CAA Section 202(a)(6).
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II. Summary of the District of Columbia's Stage II Vapor Recovery 
Program and SIP Revision

    The District of Columbia was classified as Serious nonattainment 
for the 1-hour 1979 ozone NAAQS in the Federal Register at 56 FR 56694 
(November 6, 1991), this standard has since been revoked. The District 
was found to be in attainment of ground-level 2008 ozone NAAQS on July 
16, 2019 and subsequently found to be in Moderate nonattainment for the 
2015 ozone NAAQS on November 7, 2022 (40 CFR 81.309). Because gasoline 
vapors contain mainly VOCs and contribute to the formation of ground-
level ozone, Section 182(b)(3) of the CAA Amendments of 1990 required 
states with moderate and higher ozone nonattainment areas to revise 
their SIPs to require ``owners or operators of gasoline dispensing 
systems to install and operate . . . a system for gasoline vapor 
recovery of emissions from the fueling of motor vehicles.'' \3\ As a 
result, in 1993 the District of Columbia adopted Stage II vapor 
recovery requirements at Title 20 DCMR Environment, Chapter 7 Air 
Quality--Volatile Organic Compounds and Hazardous Air Pollutants, 
Section 705 Stage II Vapor Recovery. These changes were subsequently 
incorporated into the District's SIP (October 27, 1999, 64 FR 57777). 
In October 2021, due to the widespread use of ORVR and its 
incompatibility with the Stage II vacuum-assist VRS in use at GDFs in 
the District, DOEE proposed revisions to its vapor recovery 
regulations. These revisions proposed to allow existing GDFs within the 
District the option to decommission their Stage II VRS, and for new 
GDFs to forgo them entirely.\4\ DOEE subsequently finalized these 
revisions in April 2022.\5\
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    \3\ CAA Section 182(b)(3).
    \4\ 68 DCR 11457, Proposed Rulemaking, Amend 20 DCMR 
(Environment), Ch. 7 (Air Quality--Volatile Organic Compounds and 
Hazardous Air Pollutants), Sec. 705 (Stage II Vapor Recovery), 
Removal of Stage II Vapor Recovery from Gasoline Dispensing 
Facilities in the District; issued October 29, 2021.
    \5\ 69 DCR 3128, Final Rulemaking, Amend 20 DCMR (Environment), 
Ch. 7 (Air Quality--Volatile Organic Compounds and Hazardous Air 
Pollutants), Sec. 705 (Stage II Vapor Recovery), Removal of Stage II 
Vapor Recovery from Gasoline Dispensing Facilities in the District; 
issued April 8, 2022 and effective same day.
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    On May 18, 2022, DOEE submitted a SIP revision to EPA consisting of 
these state regulatory revisions adopted by DOEE, along with a 
demonstration of the emission impacts of the changes to Stage II 
requirements on affected areas in the District. This SIP revision 
includes DOEE's revised rules that allow new GDFs that commence 
construction on or after January 1, 2022, to do so without installing 
and operating a Stage II VRS and allow existing GDFs to commence the 
decommissioning of vacuum-assist Stage II VRS on or after January 1, 
2022. DOEE's revised rules incorporate by reference requirements and 
procedures for decommissioning Stage II VRS based on Chapter 14 of the 
Petroleum Equipment Institute's ``Recommended Practices for 
Installation and Testing of Vapor-Recovery Systems at Vehicle-Fueling 
Sites,'' 2009 edition, PEI/RP300-09. The revised rules also incorporate 
by reference requirements and procedures for the maintenance and 
periodic testing of Stage II VRS for GDFs that opt to continue 
operating them.
    The October 28, 2021, SIP revision also includes a demonstration 
supporting the discontinuation of the Stage II vapor recovery program 
in the District. This demonstration, discussed in greater detail below, 
shows that by 2019 the overall emissions benefits associated with the 
Stage II vapor recovery program, operated in conjunction with ORVR, are 
overwhelmed by an emissions disbenefit caused by ORVR incompatibility 
with the vacuum-assist type Stage II VRS equipment in use at GDFs. 
DOEE's analysis followed the EPA's ``Guidance on Removing Stage II 
Gasoline Vapor Control Programs from State Implementation Plan and 
Assessing Comparable Measures'' (EPA-457/B-12-001; August 7, 2012), 
hereafter referred to as EPA's Stage II Removal Guidance. The DOEE 
analysis demonstrates that within the District the increasing 
prevalence of ORVR-equipped vehicles and the continued operation of the 
Stage II vapor recovery program results in increased VOC emissions due 
to the incompatibility between the vacuum-assist type Stage II VRS 
equipment and ORVR. The DOEE further demonstrates that allowing the 
decommissioning of all Stage II VRS equipment on or after January 1, 
2022, will result in additional emissions decreases, especially when 
combined with the increasing prevalence of ORVR-equipped vehicles.

III. EPA's Evaluation of the District of Columbia's SIP Revision

    EPA has reviewed the District's revised 20 DCMR 705, Stage II Vapor 
Recovery, and accompanying SIP narrative, and has concluded that DOEE's 
October 28, 2021 SIP revision is consistent with EPA's widespread use 
rule (77 FR 28772, May 16, 2012) and with EPA's Stage II Removal 
Guidance.

[[Page 1481]]

    In reviewing the proposed SIP revision, the EPA must ensure that: 
(1) in accordance with CAA section 110(l)'s non-interference 
requirement, DOEE has demonstrated that the proposed action would not 
interfere with attainment of the National Ambient Air Quality Standards 
or reasonable further progress towards attainment of any NAAQS; (2) in 
accordance with CAA section 184(b)(2)'s ``comparable measures'' 
requirement, that the proposed action would achieve comparable or 
greater emission reductions than the gasoline vapor recovery 
requirements contained in CAA section 182(b)(3); and (3) that the 
proposed action satisfies the anti-backsliding requirements of CAA 
section 193. As discussed below, the EPA finds that DOEE has 
demonstrated widespread use of ORVR systems throughout the motor 
vehicle fleet and that implementation of the rule in the proposed SIP 
revision would comply with CAA sections 110(l), 184(b)(2), and 193.
    CAA section 110(l) specifies that the EPA cannot approve a SIP 
revision if it would interfere with attainment of NAAQS or reasonable 
further progress towards attainment, or any other applicable 
requirement of the CAA; this is commonly referred to as ``anti-
backsliding.'' DOEE's SIP revision submittal includes a CAA section 
110(l) anti-backsliding demonstration (based on equations provided in 
the EPA's Stage II Removal Guidance) \6\ demonstrating there would be a 
negative increment value for the potential loss of emission reductions 
from removing Stage II vapor recovery systems in 2019. If the 
calculated increment value is zero or negative, this would indicate 
that removing Stage II systems would not increase refueling emissions. 
Thus, the SIP revision will not interfere with attainment of NAAQS, 
reasonable further progress towards attainment, or any other applicable 
requirement of the CAA.
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    \6\ EPA Guidance on Removing Stage II Gasoline Vapor Control 
Programs from State Implementation Plans and Assessing Comparable 
Measures, (August 7, 2012), pages 13-14.
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    Because the District is located in the northeast OTR, under CAA 
section 184(b)(2)'s ``comparable measures'' requirement, the State must 
show that its SIP revisions include control measures capable of 
achieving emission reductions comparable to those achievable through 
Stage II Systems under CAA section 182(b)(3). As stated in the EPA's 
Stage II Removal Guidance, ``the comparable measures requirement is 
satisfied if phasing out a Stage II control program in a particular 
area is estimated to have no, or a de minimis, incremental loss of 
area-wide emission control.'' DOEE conducted a comparable measure 
analysis in accordance with the EPA's Stage II Removal Guidance that 
shows that phasing out the Stage II program would result in zero or de 
minimis incremental loss of area wide emission control satisfying the 
comparable measures requirement of CAA section 184(b)(2).
    DOEE's analysis indicates there would be a negative increment value 
for the potential loss of emission reductions from removing Stage II 
vapor recovery systems starting in 2019 at a range of at least -0.0425 
and at most -0.0348. The EPA's Stage II Removal Guidance explains that 
a zero or negative increment value indicates that removing Stage II, 
``would not increase the refueling emissions inventory because the 
higher efficiency from ORVR and the incompatibility emissions offset 
the increment due to non-ORVR vehicles being refueled at Stage II 
GDFs.'' \7\ Thus, compliance with CAA section 184(b)(2) is demonstrated 
and the revision to the SIP satisfies the comparable measures 
requirement. EPA has reviewed the DOEE analysis and agrees with its 
conclusions that within the District the overall emissions benefits 
associated with the Stage II vapor recovery program, operated in 
conjunction with widespread use of ORVR, are shown to be overwhelmed by 
an emissions disbenefit caused by ORVR incompatibility.
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    \7\ EPA Guidance on Removing Stage II Gasoline Vapor Control 
Programs from State Implementation Plans and Assessing Comparable 
Measures, (August 7, 2012), page 13.
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IV. Proposed Action

    EPA is proposing to approve the District's October 28, 2021 SIP 
revision for districtwide removal of Stage II vapor recovery 
requirements, which removes requirements for gasoline vapor recovery 
systems installed on gasoline dispensers, the purpose of which are to 
capture emissions from vehicle refueling operations, otherwise known as 
vacuum-assist Stage II vapor recovery. Specifically, EPA is proposing 
to approve Title 20 of the District of Columbia Municipal Regulations 
(DCMR) Chapter 7 Section 705 Stage II Vapor Recovery, and incorporate 
it into the District's SIP. EPA is proposing to approve this SIP 
revision because it meets all applicable requirements of the Clean Air 
Act and relevant EPA guidance and because approval of this SIP revision 
will not interfere with attainment or maintenance of the ozone NAAQS. 
EPA is soliciting public comments on the issues discussed in this 
action or other relevant matters. These comments will be considered 
before taking final action.

V. Incorporation by Reference

    In this document, EPA proposes to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the District of Columbia's revisions to 20 DCMR 705, Removal 
of Stage II Vapor Recovery from Gasoline Dispensing Facilities in the 
District; (effective date April 8, 2022), as explained in Section II of 
this preamble. EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 
III Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or

[[Page 1482]]

safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act;
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The DOEE did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA did 
not perform an EJ analysis and did not consider EJ in this proposed 
rulemaking. Due to the nature of the proposed action being taken here, 
this proposed rulemaking is expected to have a neutral to positive 
impact on the air quality of the affected area. Consideration of EJ is 
not required as part of this action, and there is no information in the 
record inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
    In addition, this proposed rulemaking, to remove the District's 
Stage II vapor recovery requirements from the SIP does not have tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the District, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2024-00161 Filed 1-9-24; 8:45 am]
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