[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24389-24392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07349]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2022-0790; FRL-9915-02-R3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the District of 
Columbia. This SIP 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 the 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: This final rule is effective on May 8, 2024.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2022-0790. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (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 through 
www.regulations.gov, or please contact the person identified in the For 
Further Information Contact section for additional availability 
information.

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

    On January 10, 2024 (89 FR 1479), EPA published a notice of 
proposed rulemaking (NPRM) for the District of Columbia (the District). 
In the NPRM, EPA proposed approval of the District's request to revise 
its requirements for Stage II vapor recovery for new and existing GDFs 
located within the District. The formal SIP revision was submitted by 
the Department of Energy and Environment (DOEE) of the District of 
Columbia on May 18, 2022.

II. Summary of SIP Revision and EPA Analysis

    The details of the District's May 18, 2022, SIP submittal and the 
rationale for EPA's proposed action are explained in the NPRM and will 
not be restated in this final rule. For this detailed information, the 
reader is referred to the EPA's January 10, 2024, proposed rulemaking 
(89 FR 1479). The NPRM also contained a detailed analysis showing that 
the District's removal of the Stage II requirements would not interfere 
with any of the District's ability to attain or maintain any national 
ambient air quality standard (NAAQS), or any other applicable 
requirement of the CAA. The public comment period for the NPRM closed 
on February 9, 2024.

III. EPA's Response to Comments Received

    EPA received two comments from private citizen commentors which can 
be found in the docket. Both comments, which were adverse, are 
discussed below.
    Comments: Both private citizen commenters disagree with the 
proposed approval to allow the District to remove from the currently 
approved SIP the prior-approved Stage II requirements applicable to new 
and existing GDFs. The commentors' similarly stated reason for 
disagreeing with the proposed approval is that the removal of Stage II 
VRS may be cost effective but would lead to poorer air quality and 
adversely impact public health. One commenter asserted that the 
``proposal states that this removal of requirements is necessary due to 
conflicts with other systems, but did not explicitly explain how these 
other systems will be regulated to make up for it.'' \1\
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    \1\ Comment On EPA-R03-OAR-2022-0790-0001 Air Quality State 
Implementation Plans; Approvals and Promulgations: District of 
Columbia; Removal of Stage II Gasoline Vapor Recovery Program 
Requirements, www.regulations.gov/comment/EPA-R03-OAR-2022-0790-0009.
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    Response: Both commenters misunderstand the latest science that EPA 
has relied on in its decision. Based on DOEE's analysis, on-board 
refueling vapor recovery (ORVR) alone is more effective at reducing 
volatile organic compound (VOC) emissions in the District, than the use 
of ORVR in conjunction with vacuum-assist Stage II VRS. In other words, 
since the use of ORVR alone (which is in widespread use) in the 
District achieves more VOC emissions control and reduction than does 
using ORVR plus vacuum-assist

[[Page 24390]]

Stage II VRS, in removing the Stage II VRS requirement there is no loss 
of emissions control to be made up for. Furthermore, EPA's approval 
does not consider the relative cost effectiveness of ORVR versus Stage 
II VRS, but was rather based in large part on the DOEE study that 
showed that continued use of the two incompatible systems would lead to 
less reduction in VOC than the use of ORVR alone.
    Specifically, EPA acknowledges that one of the commenters 
referenced an article,\2\ indicating that Stage II VRS was an effective 
tool in reducing VOCs of the time that article was published. However, 
the article's estimate of ``81% and 93% relative to a conventional 
station'' for the efficiency of Stage II VRS is no longer accurate due 
to the widespread adoption of ORVR technology, which captures gasoline 
vapor when gasoline-powered vehicles are refueled. EPA adopted the ORVR 
regulations for passenger vehicles in 1994, and 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. ORVR systems have been considered to be in 
widespread use since 2012 (see the proposed approval for a full 
discussion of the 2012 widespread use finding). Per the 2012 EPA 
guidance on removing Stage II VRS, the in-use control efficiency for 
ORVR systems is estimated to be 98%.\3\
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    \2\ David L. MacIntosh, Dee A. Hull, Howard S. Brightman, Yukio 
Yanagisawa, P. Barry Ryan, A method for determining in-use 
efficiency of stage II vapor recovery systems, Environment 
International, Volume 20, Issue 2, 1994, Pages 201-207, ISSN 0160-
4120, doi.org/10.1016/0160-4120(94)90137-6.
    \3\ EPA Guidance on Removing Stage II Gasoline Vapor Control 
Programs from State Implementation Plans and Assessing Comparable 
Measures (August 7, 2012).
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    The DOEE analysis discussed in the proposed approval demonstrates 
that within the District the continued operation of the vacuum-assist 
Stage II VRS when coupled with the prevalence of ORVR-equipped vehicles 
results in increased, not decreased, VOC emissions, due to the 
incompatibility between the vacuum-assist type Stage II VRS equipment 
and ORVR. The DOEE analysis further demonstrates that allowing the 
decommissioning of 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. The 
associated costs or cost effectiveness of either retaining or 
decommissioning existing Stage II VRS was not a factor in EPA's 
proposed approval.
    As indicated in the NPRM, EPA ensured that: (1) in accordance with 
CAA section 110(l)'s non-interference requirement, this SIP revision 
demonstrated that the proposed action would not interfere with 
attainment of the NAAQS or reasonable further progress towards 
attainment of any NAAQS; (2) in accordance with CAA section 184(b)(2)'s 
``comparable measures'' requirement, that this SIP revision would 
achieve comparable or greater emission reductions than the gasoline 
vapor recovery requirements contained in CAA section 182(b)(3); and (3) 
that this SIP revision satisfies the anti-backsliding requirements of 
CAA section 193. EPA also found that in its submittal, DOEE 
demonstrated that there is widespread use of ORVR systems throughout 
the motor vehicle fleet in the District, and that implementation of the 
rule in the proposed SIP revision would comply with CAA sections 
110(l), 184(b)(2), and 193. The submittal sufficiently demonstrates 
that the District followed current EPA guidance and demonstrated that 
the removal of Stage II VRS will not interfere with any requirements 
concerning attainment or reasonable progress of any NAAQS, or any other 
applicable requirement of the CAA.

IV. Final Action

    EPA is approving the District's May 18, 2022, SIP revision that 
incorporates revisions to Title 20 of the District of Columbia 
Municipal Regulations (DCMR) Chapter 7 Section 705 Stage II Vapor 
Recovery, with an effective date of April 8, 2022. The approved changes 
to Section 705 Stage II Vapor Recovery consist of revisions to 
subsections 705.1 through 705.14 as well as the addition of subsections 
705.15 through 705.17. EPA is approving this SIP revision because it 
meets all applicable requirements of the Clean Air Act and EPA 
guidance, and it will not interfere with attainment or maintenance of 
the ozone NAAQS or any other CAA applicable requirement.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of District of 
Columbia's revised Title 20 DCMR Chapter 7 Section 705 Stage II Vapor 
Recovery regulation described in 40 CFR part 52 as described in 
Sections I, II and IV. 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). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

A. General Requirements

    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 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 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

[[Page 24391]]

     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;
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 action. Due 
to the nature of the action being taken here, this action 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.

B. Submission to Congress and the Comptroller General

    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. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 7, 2024. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action to remove Stage II requirements for the District of 
Columbia may not be challenged later in proceedings to enforce its 
requirements. (See CAA section 307(b)(2).)

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.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart J--District of Columbia

0
2. Amend Sec.  52.470, paragraph (c) by:
0
a. Revising the entries ``Section 705.1 through 705.3'' and ``Section 
705.4 through 705.14''; and
0
b. Adding the entry ``Section 705.15 through 705.17'' immediately after 
the entry ``Section 705.4 through 705.14''.
    The revisions and addition read as follows:


Sec.  52.470   Identification of plan.

* * * * *
    (c) * * *

                      EPA-Approved Regulations and Statutes in the District of Columbia SIP
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                                                             State
          State citation              Title/subject        effective     EPA approval date        Additional
                                                             date                                explanation
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                                                  * * * * * * *
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                                      Chapter 7 Volatile Organic Compounds
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                                                  * * * * * * *
Section 705.1 through 705.3......  Stage II Vapor           04/08/2022  04/08/2024, [Insert  Includes revisions
                                    Recovery.                            Federal Register     removing
                                                                         citation].           requirements for
                                                                                              gasoline vapor
                                                                                              recovery systems
                                                                                              installed on
                                                                                              gasoline
                                                                                              dispensers.
Section 705.4 through 705.14.....  Stage II Vapor           04/08/2022  04/08/2024, [Insert  Includes revisions
                                    Recovery.                            Federal Register     removing
                                                                         citation].           requirements for
                                                                                              gasoline vapor
                                                                                              recovery systems
                                                                                              installed on
                                                                                              gasoline
                                                                                              dispensers.
Section 705.15 through 705.17....  Stage II Vapor           04/08/2022  04/08/2024, [Insert  Includes additions
                                    Recovery.                            Federal Register     removing
                                                                         citation].           requirements for
                                                                                              gasoline vapor
                                                                                              recovery systems
                                                                                              installed on
                                                                                              gasoline
                                                                                              dispensers.

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[FR Doc. 2024-07349 Filed 4-5-24; 8:45 am]
BILLING CODE 6560-50-P