Approval and Promulgation of Air Quality Implementation Plans; Maine; Gasoline Marketing Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME-23-1-6827a; ME-4-1-6848; A-1-FRL-5214-4]

Approval and Promulgation of Air Quality Implementation Plans;

Maine; Gasoline Marketing Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of Maine on July 6, 1994. This revision consists

of several regulations which require the implementation of reasonably

available control technology (RACT) for controlling volatile organic

compound (VOC) emissions from gasoline marketing operations. The

intended effect of this action is to approve the gasoline marketing

regulations submitted by Maine on July 6, 1994 into the Maine SIP. Some

of these regulations are being approved as a direct final action, while

others are being approved as a final rulemaking action. This action is

being taken in accordance with the Clean Air Act.

DATES: Section 52.1020(c)(35) will become effective July 31, 1995.

Section 52.1020(c)(36) and the amendments to Secs. 52.1022 and 52.1031

will become effective August 28, 1995, unless notice is received by

July 31, 1995 that adverse or critical comments will be submitted. If

the effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Comments on Section 52.1020(c)(36) may be mailed to Susan

Studlien, Acting Director, Air, Pesticides and Toxics Management

Division, U.S. Environmental Protection Agency, Region I, JFK Federal

Building, Boston, MA 02203. Copies of the documents relevant to this

action are available for public inspection during normal business

hours, by appointment at the Air, Pesticides and Toxics Management

Division, U.S. Environmental Protection Agency, Region I, One Congress

Street, 10th floor, Boston, MA; Air and Radiation Docket and

Information Center, U.S. Environmental Protection Agency, 401 M Street,

S.W., (LE-131), Washington, D.C. 20460; and the Bureau of Air Quality

Control, Department of Environmental Protection, 71 Hospital Street,

Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.

SUPPLEMENTARY INFORMATION: On July 11, 1994, EPA received a formal

State Implementation Plan (SIP) submittal from the Maine Department of

Environmental Protection (DEP) containing the following regulations:

Chapter 100 ``Definitions Regulation''

Chapter 112 ``Petroleum Liquids Transfer Vapor Recovery''

Chapter 118 ``Gasoline Dispensing Facilities Vapor Control''

Chapter 120 ``Gasoline Tank Truck Tightness Self-Certification''

Chapter 133 ``Petroleum Liquids Transfer Vapor Recovery at Bulk

Gasoline Plants''

These regulations had been recently adopted (or amended) pursuant

to the requirements of Sections 182(b)(2) and 184(b)(1)(B) of the Clean

Air Act (CAA).

Background

Under the pre-amended Clean Air Act, ozone nonattainment areas were

required to adopt RACT rules for sources of VOC emissions. EPA issued

three sets of control technique guidelines (CTGs) documents,

establishing a ``presumptive norm'' for RACT for various categories of

VOC sources. The three sets of CTGs were (1) Group I--issued before

January 1978 (15 CTGs); (2) Group II--issued in 1978 (9 CTGs); and (3)

Group III--issued in the early 1980's (5 CTGs). Those sources not

covered by a CTG were called non-CTG sources. EPA determined that the

area's SIP-approved attainment date established which RACT rules the

area needed to adopt and implement. Under Section 172(a)(1), ozone

nonattainment areas were generally required to attain the ozone

standard by December 31, 1982. Those areas that submitted an attainment

demonstration projecting attainment by that date were required to adopt

RACT for sources covered by the Group I and II CTGs. Those areas that

sought an extension of the attainment date under Section 172(a)(2) to

as late as December 31, 1987 were required to adopt RACT for all CTG

sources and for all major (i.e., 100 ton per year or more of VOC

emissions) non-CTG sources.

Under the pre-amended Clean Air Act, portions of Maine were

designated as rural nonattainment (i.e., the Metropolitan Portland

Intrastate Air Quality Control Region (AQCR) and the Androscoggin

Valley Interstate AQCR) and, therefore, were required to adopt

[[Page 33731]]

regulations pursuant to the Group I and Group II CTGs for major

sources. Based on monitored ozone exceedances in Maine, EPA notified

the Governor of Maine on May 25, 1988 and November 8, 1988 that

portions of the SIP were inadequate to attain and maintain the ozone

standard and requested that deficiencies in the existing SIP be

corrected (EPA's SIP-Call). On November 15, 1990, amendments to the

1977 CAA were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42

U.S.C. Secs. 7401-7671q. In amended Section 182(a)(2)(A) of the CAA,

Congress statutorily adopted the requirement that pre-enactment ozone

nonattainment areas that retained their designation of nonattainment

and were classified as marginal or above fix their deficient RACT rules

for ozone by May 15, 1991. Pursuant to the amended CAA, two counties in

Maine were classified as marginal (these two counties constitute one

marginal ozone nonattainment area) and seven counties in Maine were

classified as moderate (these seven counties constitute three moderate

ozone nonattainment areas). 56 FR 56694 (Nov. 6, 1991). In response to

the RACT fix-up requirement, Maine submitted revisions to its SIP and

EPA approved these revisions on February 3, 1992 and March 22, 1993 (57

FR 3946 and 58 FR 15281).

In addition, Section 182(b)(2) of the amended Act requires States

to adopt RACT rules for all areas designated nonattainment for ozone

and classified as moderate or above. There are three parts to the

Section 182(b)(2) RACT requirement: (1) RACT for sources covered by an

existing CTG--i.e., a CTG issued prior to the enactment of the CAAA of

1990; (2) RACT for sources covered by a post-enactment CTG; and (3) all

major sources not covered by a CTG, i.e., non-CTG sources. This RACT

requirement requires nonattainment areas that previously were exempt

from certain RACT requirements to ``catch up'' to those nonattainment

areas that became subject to those requirements during an earlier

period. In addition, it requires newly designated ozone nonattainment

areas to adopt RACT rules consistent with those for previously

designated nonattainment areas. As previously mentioned, the State of

Maine contains three moderate ozone nonattainment areas. These areas

are thus subject to the Section 182(b)(2) RACT catch-up requirement.

Also, the State of Maine is located in the Northeast Ozone

Transport Region (OTR). The entire State is, therefore, subject to

Section 184(b) of the amended CAA. Section 184(b) requires that RACT be

implemented in the entire state for all VOC sources covered by a CTG

issued before or after the enactment of the CAAA of 1990 and for all

major VOC sources (defined as 50 tons per year for sources in the OTR).

Since Maine had previously submitted regulations for only bulk

gasoline terminals, fixed roof petroleum tanks, and paper coating

sources pursuant to the RACT fix-up requirement, in order to meet the

RACT catch-up requirement, the State must, therefore, adopt regulations

(or affirm that no sources exist) for the remaining 26 CTG categories

as well as adopt rules for all major non-CTG sources. (Rules for non-

CTG sources are not part of this SIP revision. These rules will

addressed in a separate action and, therefore, will not be further

discussed in this document.)

In response to the RACT catch-up requirement, on May 14, 1992 and

June 12, 1992, Maine submitted negative declarations for 15 CTG

categories. Maine then proceeded with the process of adopting

regulations to control the remaining CTG categories which included

surface coating processes, solvent metal cleaning, graphic arts

operations, the use of cutback asphalt, and gasoline marketing

operations. On January 13, 1993, Maine submitted a SIP submittal

containing regulations for surface coating processes, solvent metal

cleaning, graphic arts operations, and the use of cutback asphalt.

These regulations were approved into the Maine SIP on June 16, 1994 (59

FR 31154). Maine's gasoline marketing RACT catch-up regulations were

not included in the State's January 13, 1993 submittal. On July 6,

1994, Maine submitted a formal SIP revision containing its gasoline

marketing regulations. EPA's evaluation of this SIP submittal is

summarized below.

EPA's Evaluation of Maine's Submittal

In determining the approvability of a VOC rule, EPA must evaluate

the rule for consistency with the requirements of the Act and EPA

regulations, as found in Section 110 and Part D of the Act and 40 CFR

Part 51 (Requirements for Preparation, Adoption, and Submittal of

Implementation Plans). The EPA interpretation of these requirements,

which forms the basis for today's action, appears in various EPA policy

guidance documents. For the purpose of assisting State and local

agencies in developing RACT rules, EPA prepared a series of Control

Technique Guidelines (CTG) documents. The CTGs are based on the

underlying requirements of the Act and specify the presumptive norms

for RACT for specific source categories. EPA has not yet developed CTGs

to cover all sources of VOC emissions. Further interpretations of EPA

policy are found in: (1) Those portions of the proposed Post-1987 ozone

and carbon monoxide policy that concern RACT, 52 FR 45044 (November 24,

1987); (2) the document entitled ``Issues Relating to VOC Regulation

Cutpoints, Deficiencies, and Deviations, Clarification to Appendix D of

November 24, 1987 Federal Register Notice'' (Blue Book) (notice of

availability was published in the Federal Register on May 25, 1988);

(3) the existing CTGs; and (4) the ``Model Volatile Organic Compound

Rules for Reasonably Available Control Technology'' issued as a staff

working draft in June of 1992. In general, these guidance documents

have been set forth to ensure that VOC rules are fully enforceable and

strengthen or maintain the SIP.

The VOC regulations that are included in Maine's July 6, 1994 SIP

submittal are briefly summarized below.

Chapter 100: Definitions Regulation

This regulation was amended by adding or revising definitions of

the following terms: bulk gasoline plant, gasoline, leak, tank truck,

and vapor control system.

Chapter 112: Petroleum Liquids Transfer Vapor Recovery

This regulation requires bulk gasoline terminals which load tank

trucks and have a daily throughput of greater than 20,000 gallons to

install a vapor control system. This regulation also prohibits bulk

terminals from loading gasoline into a tank truck unless the truck has

been certified as vapor-tight pursuant to the requirements in Maine's

Chapter 120. Chapter 112 was amended to no longer exempt tank trucks

with a total capacity of less than or equal to 3500 gallons.

Chapter 118: Gasoline Dispensing Facilities Vapor Control

This regulation requires gasoline dispensing facilities with a

throughput of 10,000 gallons or more per month to install and operate a

Stage I vapor balance system. Also, all gasoline dispensing facilities,

regardless of throughput, must install submerged fill pipes.

Chapter 120: Gasoline Tank Truck Tightness Self-Certification

This regulation requires gasoline tank trucks to undergo annual

vapor tightness testing.

[[Page 33732]]

Chapter 133: Petroleum Liquids Transfer Vapor Recovery at Bulk Gasoline

Plants

This regulation requires bulk gasoline plants with a throughput of

4000 gallons or more per day to install and operate a vapor balance

system.

EPA has evaluated Maine's gasoline marketing regulations and has

found that they are consistent with EPA model regulations and the

following CTG documents: ``Control of Hydrocarbons from Tank Truck

Gasoline Loading Terminals'' (EPA-450/2-77-026); ``Control of Volatile

Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection

Systems'' (EPA-450/2-78-051); ``Control of Volatile Organic Emissions

from Bulk Gasoline Plants'' (EPA-450/2-77-035); and ``Hydrocarbon

Control Strategies for Gasoline Marketing Operations'' (EPA-450/3-78-

017). As such, EPA believes that the submitted rules constitute RACT

for the applicable sources.

Maine's gasoline marketing regulations and EPA's evaluation are

detailed in a memorandum, dated December 29, 1994, entitled ``Technical

Support Document--Maine--Gasoline Marketing Regulations.'' Copies of

that document are available, upon request, from the EPA Regional Office

listed in the ADDRESSES section of this document.

EPA's Previous NPR

Previously, EPA published a notice of proposed rulemaking (NPR) for

Maine's Chapter 120 tank truck regulation (57 FR 12791). EPA's NPR

proposed approval of Chapter 120 on the condition that Maine address

certain outstanding issues prior to final rulemaking. The issues

outlined in EPA's NPR and Maine's response are summarized below.

1. The NPR noted that the term ``vapor control system'' was not

used consistently throughout Chapter 120. Chapter 120(3)(B)

alternatively used the term ``vapor recovery system'' which was not

defined. The NPR stated that the State should change this term to

``vapor control system'' or define the term ``vapor recovery system.''

In response to this issue, Maine has revised Chapter 120 so that the

term ``vapor control system'' is used consistently throughout the

regulation.

2. The NPR noted that Chapter 120(3)(A)(2) stated that the

certification test approval expires June 1 of the year following the

test. In some cases, the June 1 date would allow trucks to go longer

then 12 months without a test. As stated in the NPR, such a provision

is inconsistent with Maine's Chapter 112(3)(A) which requires that the

truck has been certified within the last 12 months. The June 1

expiration date is also inconsistent with Chapter 120(4)(B) which

requires that a certified tank truck must remain leak-tight for the 12

months following the certification test. For these reasons, EPA's NPR

stated that Maine must either amend Chapter 120(3)(A)(2) to read

``expires 12 months after the certification test,'' or the State must

change the above referenced sections which are inconsistent with the

June 1 expiration date. In response to this issue, Maine has amended

Section 3(A)(2) of Chapter 120 to read ``expires 12 months after the

certification test.''

3. Chapter 120(5) requires that the Department be informed at least

24 hours in advance of each certification test. EPA's NPR stated that

DEP should require earlier notification of the intent to test, so that

the State can have the opportunity to monitor the test. The NPR also

noted that EPA's model rules suggest that the State be notified in

writing at least 10 days in advance of the test. Maine did not revise

Chapter 120 to require earlier notification, however, the revised rule

does require that the person conducting the test be registered with the

DEP. The State and industry both report that this arrangement is

working well. EPA, therefore, considers the testing requirements of

Maine's revised Chapter 120 regulation approvable.

4. Finally, EPA's NPR noted that when Maine adopts a bulk gasoline

plant regulation, Chapter 120 must be amended to apply to trucks that

exclusively service bulk plants. Since the publication of EPA's NPR,

Maine has adopted a bulk gasoline plant rule and the State has made the

necessary changes to Chapter 120 so that it also applies to tank trucks

that exclusively service bulk plants.

As outlined above, Maine has satisfactorily addressed the

outstanding issues listed in EPA's previous NPR.

In addition, EPA received two comment letters pursuant to the

publication of the Chapter 120 NPR. A summary of the comments received

and EPA's response are outlined below.

The Maine Oil Dealers Association (MODA) submitted comments

regarding Maine's Chapter 120 certification testing requirements. As

previously noted, EPA's NPR stated that Maine should require earlier

than 24 hour notification of the intent to test, so that the DEP can

have an opportunity to monitor the test. The NPR also noted that EPA's

model rules suggest that the State be notified in writing at least 10

days in advance of the test. MODA commented that the 24 hour notice

required by Maine's Chapter 120 is adequate notice and that, because of

the day to day variations in market demand, it is both unusual and

difficult to schedule tank truck testing 10 days in advance.

As previously mentioned, Maine did not revise Chapter 120 to

require earlier notification, however, the revised rule included in the

State's July 6, 1994 SIP submittal does require that the person

conducting the test be registered with the DEP. The State and industry

both report that this arrangement is working well. EPA is, therefore,

approving the testing requirements of Maine's revised Chapter 120

regulation.

The U.S. Small Business Administration (SBA) also submitted

comments pursuant to EPA's NPR. The SBA commented that in EPA's

proposal of Maine's Chapter 120 compliance with the Regulatory

Flexibility Act was inadequate. SBA noted that, although the NPR stated

the proposed action would not have a significant impact on a

substantial number of small entities, the notice did not provide an

explanation for such a certification. SBA also had expressed similar

concerns with Federal Register notices prepared by other EPA Regional

Offices. In response to SBA's comments, this issue was addressed

nationally by EPA's Regional Operations Branch. EPA's justification is

addressed fully at the end of this notice. However, the central

rationale for the above-mentioned certification is that SIP approvals

under Section 110 and subchapter I, Part D of the CAA 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, it does not have a significant impact on

any small entities affected.

As stated above, Maine has satisfactorily addressed the issues

raised in EPA's NPR and comments received pursuant to the NPR have also

been addressed. EPA is, therefore, approving Maine's Chapter 120 tank

truck tightness regulation as a revision to the Maine SIP.

In addition, as was previously stated, EPA has also evaluated the

other gasoline marketing regulations included in Maine's July 6, 1994

SIP submittal and has found that they are consistent with EPA model

regulations and the applicable CTG documents. EPA is, therefore,

approving Maine's Chapters 100, 112, 118, and 133 without prior

proposal because the Agency views these rules as a noncontroversial

amendment and anticipates no adverse comments. However, in a separate

document in this Federal Register publication, EPA is proposing to

[[Page 33733]]

approve these rules should adverse or critical comments be filed.

Approval of these rules will be effective August 28, 1995 unless by

July 31, 1995 adverse or critical comments are received.

If the EPA receives such comments, approval of Maine's Chapters

100, 112, 118, and 133 will be withdrawn before the effective date by

publishing a subsequent document that will withdraw the final action.

All public comments received will then be addressed in a subsequent

final rule based on this action serving as a proposed rule. The EPA

will not institute a second comment period on this action. Any parties

interested in commenting on this action should do so at this time. If

no such comments are received, the public is advised that this action

will be effective on August 28, 1995.

Final Action

EPA is approving Maine's Chapter 100 ``Definitions Regulation,''

Chapter 112 ``Petroleum Liquids Transfer Vapor Recovery,'' Chapter 118

``Gasoline Dispensing Facilities Vapor Control,'' Chapter 120

``Gasoline Tank Truck Tightness Self-Certification,'' and Chapter 133,

``Petroleum Liquids Transfer Vapor Recovery at Bulk Gasoline Plants''

as meeting the requirements of Sections 182(b)(2) and 184(b) of the CAA

for the following categories of VOC sources: gasoline bulk terminals,

gasoline tank trucks, gasoline bulk plants, and gasoline dispensing

facilities. EPA is also revising a section of the code, Section

52.1022, that is outdated due to the enactment of the CAAA of 1990.

This action 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), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. A future document will inform the general public of

these tables. The Office of Management and Budget has exempted this

regulatory action from Executive Order 12866 review.

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 CAA

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 CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs 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).

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State Implementation Plan. Each request for revision to

the State Implementation Plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Under Section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by August 28, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule 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 may not be challenged later in proceedings

to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, and Ozone.

Note: Incorporation by reference of the State Implementation

Plan for the State of Maine was approved by the Director of the

Federal Register on July 1, 1982.

Dated: May 19, 1995.

John P. DeVillars,

Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the Code of Federal Regulations

is amended as follows:

PART 52--[AMENDED]

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

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

Subpart U--Maine

2. Section 52.1020 is amended by adding paragraphs (c)(35) and

(c)(36) to read as follows:

Sec. 52.1020 Identification of plan.

* * * * *

(c) * * *

(35) Revisions to the State Implementation Plan submitted by the

Maine Department of Environmental Protection on June 3, 1991, November

25, 1991, and July 6, 1994.

(i) Incorporation by reference.

(A) Letters from the Maine Department of Environmental Protection

dated June 3, 1991, November 25, 1991, and July 6, 1994 submitting a

revision to the Maine State Implementation Plan.

(B) Chapter 120 of the Maine Department of Environmental Protection

Regulations, ``Gasoline Tank Truck Tightness Self-Certification,''

effective in the State of Maine on July 11, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

(36) Revisions to the State Implementation Plan submitted by the

Maine Department of Environmental Protection on July 6, 1994.

(i) Incorporation by reference.

(A) Letter from the Maine Department of Environmental Protection

dated July 6, 1994 submitting a revision to the Maine State

Implementation Plan.

(B) Chapter 100 of the Maine Department of Environmental Protection

Regulations, ``Definitions,'' effective in the State of Maine on July

11, 1994, with the exception of the definitions of the following terms:

``curtailment,'' ``federally enforceable,'' ``major modification,'' ``

major source,'' ``nonattainment pollutant,'' ``shutdown,''

``significant emissions,'' and ``significant emissions increase.''

(C) Chapter 112 of the Maine Department of Environmental Protection

Regulations, ``Petroleum Liquids Transfer Vapor Recovery,'' effective

in the State of Maine on July 11, 1994.

(D) Chapter 118 of the Maine Department of Environmental Protection

Regulations, ``Gasoline Dispensing Facilities Vapor Control,''

effective in the State of Maine on July 11, 1994.

(E) Chapter 133 of the Maine Department of Environmental Protection

Regulations, ``Petroleum Liquids Transfer Vapor Recovery at Bulk

Gasoline Plants,'' effective in the State of Maine on July 11, 1994.

(ii) Additional materials.

(A) Nonregulatory portions of the submittal.

[[Page 33734]]

Sec. 52.1022 [Amended]

3. Section 52.1022 is amended by removing all of the text in this

section, with the exception of the first sentence.

4. In Sec. 52.1031, Table 52.1031 is amended by adding new entries

to existing state citations for Chapter 100 and Chapter 112 and by

adding new state citations for Chapter 118, Chapter 120 and Chapter 133

to read as follows:

Sec. 52.1031 EPA-Approved Maine Regulations.

* * * * *

Table 52.1031.--EPA-Approved Rules and Regulations

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Date

State citation Title/Subject adopted by Date approved by Federal Register 52.1020

State EPA citation

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* * * * * *

*

100............. Definitions..... 6/22/94 June 29, 1995... [Insert FR 36 Gasoline

citation from marketing

published date]. definitions

added

* * * * * *

*

112............. Petroleum 6/22/94 June 29, 1995... [Insert FR 36 Deleted

liquids citation from exemption for

transfer published date]. tank trucks

recover. less than 3500

gallons

* * * * * *

*

118............. Gasoline 6/22/94 June 29, 1995... [Insert FR 36 ................

Dispensing citation from

Facilities. published date.

* * * * * *

*

120............. Gasoline Tank 6/22/94 June 29, 1995... [Insert FR 35 ................

Trucks. citation from

published date].

* * * * * *

*

133............. Gasoline Bulk 6/22/94 June 29, 1995... [Insert FR 36 ................

Plants. citation from

published date].

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[FR Doc. 95-15957 Filed 6-28-95; 8:45 am]

BILLING CODE 6560-50-P