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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[DE 10-1-5952; A-1-FRL-4837-2]

Approval and Promulgation of Implementation Plans; Delaware;

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 Delaware's State Air Regulation No. 24, Section 36,

Stage II Vapor Recovery and Appendix J, as a revision to the Delaware

State Implementation Plan (SIP) for ozone. On January 11, 1993,

Delaware submitted this SIP revision request to EPA to satisfy the

requirements of the Clean Air Act (the Act). The Act 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. In Delaware, this revision applies

to all three counties: New Castle, Kent, and Sussex.

DATES: Comments must be received by March 14, 1994.

ADDRESSES: Comments should be sent to Thomas J. Maslany, Director, Air,

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

Region III, 841 Chestnut Building, Philadelphia, PA 19107. The State

submittal and the technical support document (TSD) are available for

public review at the above address and at the Delaware Department of

Natural Resources and Environmental Control, 89 Kings Highway, Dover,

Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 597-

6863, at the EPA Region III office listed above.

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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New Castle and Kent counties in Delaware are designated

nonattainment for ozone and classified as severe. See 56 FR 56694

(November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40

CFR 81.308. Under section 182(b)(3) of the Act, Delaware was required

to submit Stage II vapor recovery rules for these areas by November 15,

1992.

The entire state of Delaware is located in the northeast Ozone

Transport Region (OTR). See CAA section 184(a). Section 184(b)(2) of

the Act requires all areas that are located in an OTR (including

nonattainment areas not classified as moderate, serious, severe, or

extreme and areas designated attainment or unclassifiable) to adopt

Stage II regulations in accordance with section 182(b)(3) or measures

that EPA has identified as capable of achieving equivalent reductions

to section 182(b)(3) Stage II controls. These measures must be

submitted within one year of EPA's completion of its Stage II

comparability study. EPA is in the process of performing this study.

Sussex county in Delaware is designated as nonattainment for ozone

and is classified as marginal. See 40 CFR 81.308. The State's Stage II

vapor recovery rules also apply in Sussex county, however the State's

compliance schedule allows facilities in Sussex county to delay

installation of Stage II vapor recovery equipment for two years. Delay

of Stage II implementation in Sussex County is allowable because, as

outlined in the discussion above, the State was not required to submit

a SIP revision for Sussex County implementing Stage II, or comparable

measures, until one year following the completion of EPA's

comparability study.

On January 11, 1993, the State of Delaware Department of Natural

Resources & Environmental Control (DNREC) submitted to EPA Stage II

vapor recovery rules consisting of the addition of Section 36 and

Appendix J to Regulation No. 24 of the Delaware SIP. The Stage II vapor

recovery rules apply to all three Delaware counties, and were adopted

by the State on January 11, 1993. The EPA is proposing to approve this

submittal as meeting the requirements of sections 182(b)(3) and

184(b)(2). The EPA has reviewed the State 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 TSD, dated July 15,

1993, which is available from the EPA Region III Office, listed above.

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. Under section 184(b)(2) of the Act,

states within the OTR are required to adopt regulations requiring

owners or operators of gasoline dispensing systems to install and

operate vapor recovery (Stage II) equipment at their facilities or to

adopt measures EPA has determined are capable of achieving comparable

reductions to Stage II controls. Delaware has adopted Stage II measures

for the entire state, including the marginal area of Sussex county.

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 (gpm) or, in the case of an independent small

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

gpm. Section 324 of the Act defines an ISBM. The State has adopted a

general applicability requirement of 10,000 gpm and has not included a

separate applicability for ISBMs.

As discussed in EPA's Enforcement Guidance and the General Preamble

(57 FR 13514), determination of a facility's throughput is calculated

as the average volume dispensed per month for the two year period prior

to State adoption of the regulation. The Delaware regulation's method

for determining throughput is acceptable to EPA. Additionally,

Delaware's regulation only exempts gasoline facilities which never

dispense greater than 10,000 gpm in any single calendar month, and

gasoline dispensing facilities that are used exclusively for refueling

marine vehicles, aircraft, farm equipment, and emergency vehicles.

These exemptions are acceptable to EPA.

II. Implementation of Stage II

The Act specifies the time by which certain facilities must comply

with the state regulation. These times, calculated from the time of

State adoption of the regulation, are: (1) 6 months for facilities for

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

facilities that dispense greater than 100,000 gallons of gasoline per

month, and (3) 2 years for all other facilities.

Delaware's regulations are consistent with these requirements, even

though Delaware did not adopt its regulations until January 11, 1993.

Compliance dates are established as specified above, as if the

regulations were adopted on November 15, 1992. The submitted regulation

provides that facilities in Kent and New Castle counties must install

and operate Stage II by: (1) May 15, 1993 for facilities for which

construction began after November 15, 1990, (2) November 15, 1993 for

facilities that dispense greater than 100,000 gallons of gasoline per

month, and (3) November 15, 1994 for all other facilities. The

installation deadlines for facilities in Sussex county are: (1) May 15,

1995 for facilities for which construction began after November 15,

1990, (2) November 15, 1995 for facilities that dispense greater than

100,000 gallons of gasoline per month, and (3) November 15, 1996 for

all other facilities.

In addition, Stage II vapor recovery systems installed prior to

November 15, 1992, which are designed for dual vapor recovery hoses

(not coaxial) shall be retrofitted with coaxial hoses no later than

January 1, 1994, or upon any vapor system modification, whichever is

first. In addition, remote check valves in balance type systems

installed prior to November 15, 1992, shall be retrofitted with check

valves located in the nozzle no later than January 1, 1994, or upon any

vapor system modification, whichever is first.

III. Additional Program Requirements

Consistent with EPA's guidance, Delaware requires that Stage II

systems be tested and certified to meet a 95 percent emission reduction

efficiency by using a system approved by the California Air Resources

Board. Delaware requires sources to verify proper installation and

functioning of Stage II equipment through use of a liquid blockage

(Wet) test, a vapor space tie test, a pressure decay/leak test and a

dynamic backpressure (Dry) test prior to system operation. In addition,

a pressure decay/leak test is required to verify proper installation

every five years and a dynamic backpressure (Dry) test is required

annually. Testing to ensure proper functioning of nozzle automatic

shut-off mechanisms and flow prohibiting mechanisms are also required

where applicable. These requirements are acceptable to EPA. Delaware's

regulations also allow DNREC to inspect and test facilities after any

type of system modification or repair.

With respect to recordkeeping, Delaware has adopted those items

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

Stage II must make these 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, (4) training certification files, and (5) inspection and

compliance records issued by the State. In addition, Delaware requires

facilities that are not subject to Stage II to maintain files

containing the gasoline throughput of the facility. DNREC plans to have

a Department representative present for functional testing of the Stage

II equipment at least once every three years. In addition, Delaware's

regulations require facilities to give written notification 10 days

prior to any test operation at a facility, and the Department also

reserves the right to perform compliance inspections and testing at any

time. During the Department's inspection of facilities, the State will

have ample opportunity to examine testing records from previous years

and will be able to enforce against non-complying facilities by

following the paper trail of inspection and compliance records which

all subject facilities are required to maintain. EPA approval of

Delaware's provisions, however, should not be interpreted as a revision

to the policy discussed in EPA's enforcement guidance. DNREC's

authority for enforcing violations of the Stage II requirements is

found in state law and not the Stage II regulation. Under the Delaware

Water And Air Resources Act, 7 Del. C. Chapter 60, Sec. 6005-

Enforcement; civil and administrative penalties; the Secretary has the

authority to enforce violations and impose civil penalties against any

party that violates Chapter 60 or any rule or regulation duly

promulgated thereunder. Delaware's enforcement provisions are

acceptable to EPA.

Proposed Action

Because EPA believes that Delaware has adopted a Stage II

regulation in accordance with sections 182(b)(3) and 184(b)(2) of the

Act, as interpreted in EPA's guidance, EPA is proposing to approve the

addition of Section 36, Stage II Vapor Recovery, including Appendix J,

to Regulation No. 24, Control of Volatile Organic Compound Emissions as

a revision to the Delaware SIP.

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 of Delaware's State Air Regulation No. 24,

Section 36, Stage II Vapor Recovery and Appendix J, has been classified

as a Table 2 action for signature by the Acting 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 waived Table 2 and Table 3 SIP revisions (54 FR 2222) from

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

two years. EPA has submitted a request for a permanent waiver for Table

2 and 3 SIP revisions. OMB has agreed to continue the waiver until such

time as it rules on EPA's request. This request continues in effect

under Executive Order 12866 which superseded Executive Order 12291 on

September 30, 1993.

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

Dated: February 1, 1994.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

[FR Doc. 94-3294 Filed 2-10-94; 8:45 am]

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