Approval and Promulgation of Implementation Plans; Commonwealth of Virginia; Stage II Vapor Recovery Regulations for Gasoline Dispensing Facilities

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[VA 23-1-5884; A-1-FRL-4834-1]

Approval and Promulgation of Implementation Plans; Commonwealth

of Virginia; Stage II Vapor Recovery Regulations for Gasoline

Dispensing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking action to

propose approval of Title 120-01 of the Commonwealth of Virginia's

Regulations for the Control and Abatement of Air Pollution, Part IV,

Rule 4-37 (Petroleum Liquid Storage and Transfer Operations),

Secs. 120-04-3701 to 120-04-3715 and Appendices P and S, as a revision

to the Virginia State Implementation Plan (SIP) for ozone. The

effective date for Virginia's State regulation is January 1, 1993.

On November 5, 1992, the Commonwealth of Virginia submitted a SIP

revision request to EPA to satisfy the Clean Air Act as amended in 1990

(the Act), which requires all ozone nonattainment areas classified as

moderate or worse to require owners and operators of gasoline

dispensing facilities to install and operate Stage II vapor recovery

equipment. This revision applies to the Virginia portion of the

Washington, DC ozone nonattainment area and the Richmond ozone

nonattainment area. This revision also contains several other minor

amendments to Virginia's Rule 4-37. Although these changes do not

necessarily pertain to the Stage II program, they will affect the non-

Stage II requirements previously established by this proposed rule.

DATES: Comments must be received by March 7, 1994.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of

the documents relevant to this action are available for public

inspection during normal business hours at the Air, Radiation, and

Toxics Division, U.S. Environmental Protection Agency, Region III, 841

Chestnut Building, Philadelphia, PA 19107; and the Virginia Department

of Environmental Quality, P.O. Box 10089, Richmond Virginia, 23240.

FOR FURTHER INFORMATION CONTACT: Brian K. Rehn, at (215) 597-4554.

SUPPLEMENTARY INFORMATION: Under section 182(b)(3) of the Act, EPA was

required to issue guidance as to the effectiveness of Stage II systems.

In November 1991, EPA issued technical and enforcement guidance to meet

this requirement.1 In addition, on April 16, 1992, EPA published

the ``General Preamble for the Implementation of Title I of the Clean

Air Act Amendments of 1990'' (General Preamble) (57 FR 13498). The

guidance documents and the General Preamble interpret the Stage II

statutory requirement and indicate what EPA believes a State submittal

needs to include to meet that requirement.

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\1\These two documents are entitled ``Technical Guidance-Stage

II Vapor Recovery Systems for Control of Vehicle Refueling Emissions

at Gasoline Dispensing Facilities'' (EPA-450/3-91-022) and

``Enforcement Guidance for Stage II Vehicle Refueling Control

Programs.''

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The Virginia portion of the Washington, DC metropolitan statistical

area (MSA) is designated nonattainment for ozone and classified as

serious. The Richmond MSA is also designated nonattainment for ozone,

and is classified as moderate. See 56 FR 56694 (November 6, 1991) and

57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.347. Under section

182(b)(3) of the Act, Virginia was required to submit Stage II vapor

recovery rules for these areas by November 15, 1992.

On November 5, 1992, the Virginia Department of Air Pollution

Control, now known as the Department of Environmental Quality (DEQ),

submitted to EPA Stage II vapor recovery rules for the Northern

Virginia and Richmond areas that were adopted by the Commonwealth on

October 5, 1992. By today's action, EPA is proposing to approve this

submittal as meeting the requirements of section 182(b)(3) of the Act.

EPA has reviewed the Commonwealth's submittal against the statutory

requirements and for consistency with EPA guidance. A summary of EPA's

analysis is provided below; in addition, a more detailed analysis of

the State submittal is contained in a technical support document for

this action, dated September 15, 1993, which is available from the

Region III Office, at the address listed in the ADDRESSES section

above.

Regulatory Evaluation

I. Applicability

Under section 182(b)(3) of the Act, states were required by

November 15, 1992 to adopt regulations requiring owners or operators of

gasoline dispensing systems to install and operate vapor recovery

equipment at their facilities. Virginia has adopted Stage II measures

for the Northern Virginia (Virginia portion of the Washington DC MSA)

and the Richmond areas, as required by the Act.

Section 182(b)(3)(A) of the Act specifies that Stage II controls

must apply to any facility that dispenses more than 10,000 gallons of

gasoline per month or, in the case of an independent small business

marketer (ISBM), any facility that dispenses more than 50,000 gallons

of gasoline per month. The Commonwealth has adopted a general

applicability requirement for those gasoline dispensing facilities

having an average monthly throughput (as described below) of over

10,000 gallons per month and those independent small business marketers

dispensing over 50,000 gallons per month.

In accordance with EPA's Enforcement Guidance and the General

Preamble (57 FR 13514), the Commonwealth has provided that the gallons

of gasoline dispensed per month will be the ``average monthly

throughput''. The Commonwealth has defined this term in Sec. 120-04-

3702 of Rule 4-37 as the volume dispensed per month for the two most

recent consecutive calendar years, or some other two year period that

is more representative of normal operations. Downtime shall not be

included when determining average monthly throughput. The board of the

DEQ may allow the use of an alternative time period for calculation of

average monthly throughput if it determines that such a period is more

representative of normal operations at that facility.

The Commonwealth has specified that the Stage II requirements set

forth in Rule 4-37 apply to all gasoline dispensing facilities with an

average monthly throughput of over 10,000 gallons (and ISBMs with

average monthly throughput of 50,000 gallons or more), including retail

outlets and fleet fueling facilities. Gasoline dispensing devices that

exclusively refuel marine vessels, aircraft, farm equipment, and

emergency vehicles are exempted under Virginia's Stage II regulation.

The Commonwealth has determined that these exempted facilities will

generally fall below the applicability threshold of 10,000 gallons per

month. Additionally, many of the facilities that otherwise fall within

these exempted categories are ineligible for exemption because they do

not exclusively refuel vehicles within these categories.

Section 324(c) of the Act establishes a statutory definition of an

ISBM, which is fully set forth in the technical support document for

this action. The Commonwealth has adopted the statutory definition of

an ISBM in Sec. 120-04-3702 of its regulations. For clarity on the

definition of an ISBM, the public may refer to the technical support

document for this action or the Clean Air Act.

II. Implementation of Stage II

Virginia adopted its regulations on October 5, 1992, and submitted

them to EPA as a SIP revision on November 5, 1992. The Act specifies

the times by which certain facilities must comply with a State's Stage

II regulation, calculated from the time of State adoption of the

regulation. For facilities that are not owned or operated by an ISBM,

the statutory deadlines are: (1) 6 months from the time of State

adoption (i.e. April 5, 1993 for Virginia) of the regulation for

facilities for which construction began after November 15, 1990, (2) 1

year from the time of State adoption of the regulation (i.e. October 5,

1993 for Virginia) for facilities that dispense over 100,000 gallons of

gasoline per month; and (3) 2 years from the time of State adoption

(i.e. October 5, 1994 for Virginia) for all other facilities.

The Commonwealth's regulation provides that subject facilities must

install and operate Stage II: (1) Upon start-up, for facilities that

began construction after January 1, 1993; (2) by May 15, 1993, for

existing facilities that began construction after November 15, 1990 and

before January 1, 1993; (3) by November 15, 1993, for existing

facilities that began construction before November 15, 1990 and have an

average monthly throughput of over 100,000 gallons per month; and (4)

by November 15, 1994, for all other subject existing facilities which

began actual construction before November 15, 1990.

Section 182(b)(3) of the Act provides that a State's timetable for

implementation must begin with the date of adoption of the Stage II

rules, and then defines adoption to mean the date the State adopts the

requirements for installation and operation of Stage II equipment.

Although Virginia adopted its Stage II regulations on October 5, 1992,

EPA believes that it can approve Virginia's treatment of the adoption

date as being November 15, 1992 under the limited circumstances

presented in this submittal, as explained below.

EPA is proposing to approve Virginia's implementation schedule

which began on November 15, 1992 for several reasons. First, EPA

recognizes that the date by which the Commonwealth was required to

adopt Stage II regulations matches the date by which the Commonwealth

was required to submit the regulations to EPA. Thus, Virginia could

have waited to adopt the Stage II regulations on November 15, 1992 and

still have met the required submittal date. Second, the implementation

date established by the Commonwealth, November 15, 1992, began shortly

after the adoption date of the regulation. Third, the Commonwealth

would have a limited ability to remedy this deficiency. If Virginia

chose to withdraw it SIP revision and readopt this Stage II

requirement, the time table could be based upon a date that is later

than November 15, 1992. Finally, EPA believes the Virginia rule

otherwise fulfills the Stage II requirements and will provide

substantial air quality benefits to the regulated areas. Therefore, EPA

believes it is in the public interest to approve and make federally

enforceable Virginia's Stage II regulation at the earliest time

feasible.

III. Additional Program Requirements

Consistent with EPA's guidance, the Commonwealth requires that

Stage II systems be tested and certified to meet a 95 percent emission

reduction efficiency by using a system certified by the California Air

Resources Board. Additionally, Virginia requires that Stage II systems

employed to comply with this program utilize coaxial vapor recovery

hose check valves that do not impede the performance of Stage II

functional tests. The Commonwealth requires subject facilities to

verify proper installation and function of Stage II equipment through

use of a liquid blockage test, a vapor space tie test and a pressure

decay/leak test prior to system operation. Additionally, every five

years, or upon major modification of a facility (i.e. 75 percent or

more equipment change), or if requested after an inspection by the

Commonwealth that shows evidence of a system malfunction, the source

must conduct a liquid blockage test and a pressure decay/leak test.

With respect to recordkeeping, the Commonwealth has adopted those

items recommended in EPA's guidance and specifies that sources subject

to Stage II must make the following documents available upon request:

(1) A license or permit to install and operate a Stage II system; (2)

results of verification tests; (3) equipment maintenance and compliance

file logs indicating compliance with manufacturer's specifications and

requirements; and (4) training certification files. In addition,

Virginia requires facilities that are not subject to Stage II to

maintain files containing the gasoline throughput of the facility and

make them available upon request by the DEQ.

Virginia has indicated that it plans to conduct a compliance

inspection for each subject facility at least one time per year with

follow-up inspections at noncomplying facilities. These inspections

will include both visual and functional equipment inspections. For a

detailed listing of the tests to be conducted at the annual

inspections, see the technical support document for this action. The

Commonwealth has authority to enforce violations of the Stage II

requirements, as set forth in Rule 4-37 and Virginia's policies and

procedures document entitled, ``Procedures for Implementation of

Regulations Covering Stage II Vapor Recovery Systems for Gasoline

Dispensing Facilities'' (AQP-9). This enforcement authority is found in

Sec. 10.1-1307.3 of the Code of Virginia. For further information on

Virginia's enforcement authority and penalty limits for this program,

please refer to the technical support document for this action.

IV. Regulatory Changes Affecting Other Petroleum Storage and Transfer

Operations

On October 5, 1992, Virginia's State Air Pollution Control Board

adopted an amended version of its regulations entitled ``Regulations

for the Control and Abatement of Air Pollution''; VR 120-01, Rule 4 37,

Secs. 120-04-3701 to 120-04-3715 (effective date--January 1, 1993).

Virginia submitted this revised rule to EPA on November 5, 1992 for the

purposes of satisfying the Stage II requirements set forth in the Act.

However, Virginia's Rule 4-37 consolidates Stage II vapor recovery

requirements for gasoline dispensing facilities with existing

regulations that establish Reasonably Available Control Technology

(RACT) related to petroleum liquid storage and transfer categories,

including: Stage I vapor recovery, floating and fixed roof petroleum

storage tanks, and gasoline bulk plants.

Several changes made to Rule 4-37 for the purposes of incorporating

Stage II requirements directly affect the other petroleum transfer and

storage requirements covered by Rule 4-37. Section 120-04-3701(D) of

Rule 4-37 places, for the first time, the burden of proof for

eligibility for exemption from any portion of the rule on the owner.

Facilities seeking compliance exemptions (based upon throughput

thresholds) for any petroleum storage and transfer operation covered by

Rule 4-37 are now required to retain records to prove their exempt

status.

Section 120-04-3703(D)(3) of Rule 4-37 has been revised to change

the applicability requirement for vapor recovery controls at gasoline

loading bulk plants. The applicability exemption for facilities with

average daily throughput of less than 4,000 gallons is now based upon a

thirty day rolling average, instead of total average throughput.

Average daily throughput must now be calculated for the two most recent

years, for which time if this value exceeds 4,000 gallons per day, the

facility is subject to the vapor recovery requirements for bulk plants.

V. Regulatory Changes Affecting VOC Control Areas

The Commonwealth has revised Appendix P of Rule 4-37 to separately

list nitrogen oxides (NOx) emissions control areas, in addition to

listing VOC emissions control areas. The list of VOC emissions control

areas submitted in this November 5, 1992 revision is unchanged from

that of the May 10, 1991 SIP revision submitted to satisfy the

requirements of section 182(a)(2)(A) of the Act--otherwise known as

``RACT fix-ups''. Additionally, a list of NOx emission control areas

identical to the VOC emission control areas list has been added.

Proposed Action

Because EPA believes that the State has adopted a Stage II

regulation in accordance with section 182(b)(3) of the Act, as

interpreted in EPA's guidance, EPA is proposing to approve Title 120-01

of the Commonwealth of Virginia's Regulations for the Control and

Abatement of Air Pollution, part IV, Rule 4-37 (Petroleum Liquid

Storage and Transfer Operations), Secs. 120-04-3701 to 120-04-3715 and

Appendices P and S, as a revision to the Virginia State Implementation

Plan (SIP) for ozone as meeting the requirements of sections 182(b)(3).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the Act

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the federal SIP

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the Act,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of State action. The

Act forbids EPA to base its actions concerning SIP's on such grounds.

Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (s.Ct. 1976);

42 U.S.C. 7410(a)(2).

This proposed approval action for Stage II gasoline vapor recovery

for Virginia has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of

Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions

from the requirements of section 3 of Executive Order 12291 for a

period of 2 years (54 FR 2222). The EPA has submitted a request for a

permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has

agreed to continue the waiver until such time as it rules on EPA's

request. This request is still applicable under Executive Order 12866

which superseded Executive Order 12291 on September 30, 1993.

The Administrator's decision to approve or disapprove Virginia's

Stage II gasoline vapor recovery SIP revision will be based on whether

it meets the requirements of section 110(a)(2)(A)-(K), 110(a)(3), and

part D of the Clean Air Act, as amended, and EPA regulations in 40 CFR

part 51.

List of Subjects in 40 CFR Part 52

Air pollution control; Hydrocarbons; Incorporation by reference;

Intergovernmental relations; Nitrogen oxides; Ozone; Reporting and

recordkeeping requirements; Volatile Organic Compounds.

Authority: 42 U.S.C. 7401-7671q.

Dated: November 5, 1993.

Stanley L. Laskowski,

Acting Regional Administrator.

[FR Doc. 94-2591 Filed 2-3-94; 8:45 am]

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