Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Gasoline Dispensing Facilities and Gasoline Tank Trucks

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH004-01-5814; A-1-FRL-6163-2]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire; Gasoline Dispensing Facilities and Gasoline Tank Trucks

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)

revision submitted by the State of New Hampshire on November 24, 1992.

This revision consists of regulations to control volatile organic

compound (VOC) emissions from gasoline dispensing facilities and from

gasoline tank trucks. The intended effect of this action is to propose

approval of these regulations. This action is being taken under the

Clean Air Act.

DATES: Comments must be received on or before October 21, 1998. Public

comments on this document are requested and will be considered before

taking final action on this SIP revision.

ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,

Office of Ecosystem Protection, U.S. Environmental Protection Agency,

Region I, JFK Federal Bldg., Boston, MA 02203. Copies of the State

submittal and EPA's technical support document are available for public

inspection during normal business hours, by appointment at the Office

of Ecosystem Protection, U.S. Environmental Protection Agency, Region

I, One Congress Street, 11th floor, Boston, MA and Air Resources

Division, Department of Environmental Services, 64 North Main Street,

Caller Box 2033, Concord, NH 03302-2033.

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

SUPPLEMENTARY INFORMATION: On November 25, 1992, EPA received a formal

SIP submittal from New Hampshire containing a new regulation Part Env-A

1205 ``Volatile Organic Compounds (VOC): Gasoline Dispensing Facilities

and Gasoline Tank Trucks.''

I. Background

Under the pre-amended Clean Air Act (CAA), ozone nonattainment

areas were required to adopt reasonably available control technology

(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.

On November 15, 1990, amendments to the 1977 CAA were enacted. Pub.

L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. 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. This RACT requirement applies to nonattainment

[[Page 50181]]

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.

Pursuant to the amended CAA, two areas in New Hampshire were

classified as serious ozone nonattainment areas and one area was

classified as a marginal ozone nonattainment area. 56 FR 56694 (Nov. 6,

1991). The serious areas are subject to the section 182(b)(2) RACT

catch-up requirement. Also, the State of New Hampshire 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 for all VOC sources covered by a CTG

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

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

have been issued for several VOC source categories including gasoline

tank trucks and gasoline dispensing facilities (Stage I vapor recovery)

which are the source categories addressed in today's action.

Furthermore, the CAA requires serious and above ozone nonattainment

areas to adopt regulations which require owners and operators of

gasoline dispensing facilities to install and operate so called ``Stage

II'' vapor recovery equipment designed to control vapors emitted when

vehicles are refueled (section 182(b)(3) as modified by section

202(a)(6)). Under section 182(b)(3), New Hampshire was required to

submit Stage II vapor recovery rules for its two serious ozone

nonattainment areas by November 15, 1992.

Also, section 184(b)(2) of the amended Act requires that states in

the OTR adopt Stage II or comparable measures within one year of EPA

completion of a study identifying control measures capable of achieving

emissions reductions comparable to those achievable through section

182(b)(3) Stage II vapor recovery controls. On January 13, 1995, EPA

completed its study ``Stage II Comparability Study for the Northeast

Ozone Transport Region'' (EPA-452/R-94-011). Therefore, states in the

OTR must adopt Stage II or comparable measures and submit them to EPA

as a SIP revision by January 13, 1996. EPA has recently received New

Hampshire's Stage II comparability SIP revision. New Hampshire's

November 24, 1992 SIP submittal which is the subject of today's

document is not intended to satisfy that requirement.

In response to sections 182(b)(2), 182(b)(3), and 184(b)(1)(B) of

the CAA, New Hampshire adopted Part Env-A 1205 ``Volatile Organic

Compounds (VOC): Gasoline Dispensing Facilities and Gasoline Tank

Trucks'' and submitted this regulation to EPA as a SIP revision. New

Hampshire's regulation is briefly summarized below.

New Hampshire's Env-A 1205

This regulation requires that all gasoline storage tanks with a

capacity equal to or greater than 250 gallons be equipped with a

submerged fill pipe and that all storage tanks at facilities with an

annual throughput of greater than or equal to 120,000 gallons be

equipped with Stage I vapor recovery controls. These requirements apply

statewide. In addition, this regulation also requires that gasoline

tank trucks operating in the State be maintained vapor-tight and be

tested annually. Furthermore, this rule requires that owners or

operators of gasoline dispensing facilities, which have an annual

throughput equal to or greater than 420,000 gallons and are located in

the counties of Hillsborough, Merrimack, Rockingham, and Strafford,

install and operate Stage II vapor recovery controls.

EPA has reviewed this regulation against the applicable statutory

requirements and for consistency with EPA guidance. New Hampshire's

regulation and EPA's evaluation are detailed in a memorandum dated

April 29, 1998, entitled ``Technical Support Document--New Hampshire--

Gasoline Dispensing Facilities and Gasoline Tank Trucks.'' Copies of

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

listed in the ADDRESSES section of this document. A summary of EPA's

evaluation is provided below.

EPA's Evaluation of New Hampshire's Submittal

In determining the approvability of a VOC RACT 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 document'' (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 1992. In general, these guidance documents have

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

strengthen or maintain the SIP.

EPA has evaluated the Stage I vapor recovery and gasoline tank

truck requirements of New Hampshire's Env-A 1205 and has found that

they are consistent with EPA model regulations and the following EPA

guidance documents: ``Leaks from Gasoline Tank Trucks and Vapor

Collection Systems'' (EPA-450/2-78-051); ``Guidance to State and Local

Agencies in Preparing Regulations to Control Volatile Organic Compounds

from Ten Stationary Source Categories'' (EPA-450/2-79-004); and

``Hydrocarbon Control Strategies for Gasoline Marketing Operations''

(EPA-450/3-78-017). As such, EPA believes that New Hampshire's

regulation constitutes RACT for these source categories.

EPA has also evaluated the Stage II vapor recovery requirements of

New Hampshire's regulation for consistency with the requirements of the

Act and EPA guidance. Under section 182(b)(3), 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

[[Page 50182]]

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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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), as defined in section 324(c) of the Act, any facility

that dispenses more than 50,000 gallons of gasoline per month. The

scope of the control requirement in New Hampshire's rule differs from

the formula specified in the CAA in two respects. First, the rule

applies to facilities with an annual throughput of 420,000 gallons of

gasoline, rather than measuring throughput on a monthly basis as

provided in section 182(b)(3)(A). It is possible that a monthly

threshold would capture more gas stations in the program by catching

stations with seasonal variations in their throughput. But EPA and New

Hampshire have documented that seasonal variation of gasoline sales

across the state is not great, approximately three percent. Therefore,

EPA has determined that the annual throughput threshold in New

Hampshire's rule does not allow gas stations to go uncontrolled that

might otherwise be captured by a monthly threshold. Moreover, along the

New Hampshire seacoast, where one might expect to see seasonal

variation due to summer tourist traffic, the New Hampshire stage II

regulation covers a higher percentage of gas stations selling gasoline

to the public than it does in inland communities. Finally, in 1992 New

Hampshire estimated that its rule would require controls for about 84.3

percent of gasoline throughput in the program area. Data from 1996

demonstrate that the program actually controls 88.5 percent of all

throughput. Second, the rule imposes one threshold for all gasoline

stations. As noted above, the CAA specifies a lower threshold of 10,000

gallons per month for regular stations and a higher threshold of 50,000

gallons for ISBM's. If one assumes that New Hampshire's rule covers

facilities that on average pump 35,000 gallons of gasoline a month,

then the rule fails to control emissions from regular stations that

pump between 10,000 and 35,000 gallons of fuel a month as compared with

the CAA's minimum requirement. Correspondingly, the rule does control

emissions from ISBM's that pump between 35,000 and 50,000 gallons a

month that the State could allow to go uncontrolled under the CAA's

formula.2

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\2\ Section 182(b)(3)(A) does not preclude states from

establishing more stringent applicability thresholds. Under sections

116 and 324(b) states retain their authority to require Stage II

controls at facilities in addition to those covered by section

182(b)(3)(A).

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Although the applicability cut-off in New Hampshire's rule differs

from the CAA-required cut-offs, New Hampshire's SIP submittal includes

a Stage II Equivalency Demonstration which shows that implementation of

its applicability cut-off in the four county area results in equivalent

VOC reductions as compared with implementation of the CAA-required

applicability cut-offs in the four county area. Also, New Hampshire's

Stage II requirements apply to the Manchester previously classified

marginal ozone nonattainment area, whereas section 182(b)(3) of the CAA

only requires that New Hampshire implement Stage II requirements in the

state's two serious areas. New Hampshire's rule, therefore, results in

an additional environmental benefit as compared with the section

182(b)(3) CAA-required program. Thus, this rule creates emission

reduction credits that are consistent with the principles outlined in

EPA's Economic Incentive Program (EIP) rules (59 FR 16690).

Section 182(b)(3)(B) of the Act specifies the time by which certain

facilities must comply with the State regulation. For facilities that

are not owned or operated by an ISBM, 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. The Stage

II compliance schedule in New Hampshire's regulation is consistent with

this CAA requirement.

In accordance with EPA's guidance, New Hampshire requires the use

of Stage II systems that have been tested and certified by the

California Air Resources Board (CARB) as meeting a 95 percent emission

reduction efficiency. The State also requires sources to verify proper

installation and function of Stage II equipment through the use of a

liquid blockage test and a leak test prior to system operation and upon

major modification of a facility or upon written notification from the

State. In addition, New Hampshire's rule contains recordkeeping

requirements consistent with those recommended in EPA's guidance.

EPA is proposing to approve the November 24, 1992 New Hampshire SIP

revision. EPA is soliciting public comments on the issues discussed in

this proposal or on other relevant matters. These comments will be

considered before taking final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the ADDRESSES section of

this action.

II. Proposed Action

EPA is proposing to approve New Hampshire's Env-A 1205 ``Volatile

Organic Compounds (VOC): Gasoline Dispensing Facilities and Gasoline

Tank Trucks'' as meeting the section 182(b)(2) and section 184(b)(1)(B)

VOC RACT requirements of the CAA for the gasoline dispensing facility

and gasoline tank truck source categories. EPA is also proposing to

approve New Hampshire's Env-A 1205 as achieving the emission reductions

required under section 182(b)(3) for Stage II vapor recovery in serious

ozone nonattainment areas.

III. Administrative Requirements

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order 12866.

The proposed rule is not subject to Executive Order 13045, entitled

``Protection of Children form Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

Executive Order 12866.

B. Regulatory Flexibility Act

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, the Administrator

certifies that it does not have a significant impact on any small

entities affected.

C. Unfunded Mandates

To reduce the burden of Federal regulations on States and small

governments, President Clinton issued Executive Order 12875 on October

26,

[[Page 50183]]

1993, entitled ``Enhancing the Intergovernmental Partnership.'' Under

Executive Order 12875, EPA may not issue a regulation which is not

required by statute unless the Federal Government provides the

necessary funds to pay the direct costs incurred by the State and small

governments or EPA provides to the Office of Management and Budget a

description of the prior consultation and communications the agency has

had with representatives of State and small governments and a statement

supporting the need to issue the regulation. In addition, Executive

Order 12875 requires EPA to develop an effective process permitting

elected and other representatives of State and small governments ``to

provide meaningful and timely input in the development of regulatory

proposals containing significant unfunded mandates.''

The present action satisfies the requirements of Executive Order

12875 because it does not contain a significant unfunded mandate. This

rule approves preexisting state requirements and does not impose new

federal mandates binding on State or small governments. Under section

202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates

Act''), signed into law on March 22, 1995, EPA must prepare a budgetary

impact statement to accompany any proposed or final rule that includes

a Federal mandate that may result in estimated costs to State, local,

or tribal governments in the aggregate; or to the private sector, of

$100 million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Ozone, Reporting and recordkeeping requirements.

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

Dated: September 11, 1998.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 98-25195 Filed 9-18-98; 8:45 am]

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