Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compound From Sources That Store and Handle JP-4 Jet Fuel

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD068-3037; FRL-6202-6]

Approval and Promulgation of Air Quality Implementation Plans;

Maryland; Control of Volatile Organic Compound From Sources That Store

and Handle JP-4 Jet Fuel

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 Maryland. This revision establishes and

requires volatile organic compound (VOC) emission control requirements

for sources that store or handle JP-4 jet fuel. The intended effect of

this action is to approve revisions to COMAR 26.11.13 into the Maryland

SIP in accordance with the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on January 21, 1999.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone and

Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the Air Protection

Division, U.S. Environmental Protection Agency, Region III, 1650 Arch

Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket

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

Street, SW, Washington, DC 20460; and the Maryland Department of the

Environment, 2500 Broening Highway, Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney at (215) 814-2092, or

by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On August 26, 1998, EPA published a direct

final rule [63 FR 45397] approving Maryland's revisions to COMAR

26.11.13, ``Control of Gasoline and Volatile Organic Compound Storage

and Handling.'' The formal SIP revision was submitted by Maryland on

March 31, 1998. In the August 26, 1998 direct final rulemaking, EPA

stated that if adverse comments were received on the final approval

within 30 days of its publication, EPA would publish a document

announcing the withdrawal of its direct final rulemaking action.

Because EPA received adverse comments on the direct final rulemaking

within the prescribed comment period, EPA withdrew the August 26, 1998

final rulemaking action on Maryland's revisions to COMAR 26.11.13. This

withdrawal document appeared in the Federal Register on October 9, 1998

[63 FR 54355]. A companion proposed rulemaking notice to approve

Maryland's revisions to COMAR 26.11.13 was published in the Proposed

Rules section of the August 28, 1998 Federal Register [63 FR 45443].

Response to Comments

EPA received two letters commenting on the August 26, 1998 direct

final rulemaking from Boeing and the Air Transportation Association of

America. The letters requested that EPA further clarify the intent of

Maryland's regulation and whether Maryland's regulation could be

construed to apply to the commercial airline industry. The following

discussion summarizes and responds to the comments received.

Comment: Is it the EPA's intent that this regulation apply to all

jet fuel storage and handling systems in Maryland, or only those that

handle JP-4?

Response: The Technical Support Document (TSD) submitted in support

of Maryland's SIP revision request suggests that COMAR 26.11.13 is

intended to apply to military installations that handle JP-4 jet fuel.

According to the State, ``the purpose of the amendments to COMAR

26.11.13 is to establish reasonably available control technology (RACT)

requirements for the storage and handling of JP-4, a jet fuel and

volatile organic compound (VOC).'' The State's TSD goes on to state

that ``JP-4 is used as a fuel primarily in military aircraft.'' Under

the section entitled ``Affected Industry in Maryland'', the TSD notes

that the following facilities in Maryland store and handle jet fuels:

Andrews Air Force Base, Patuxent Naval Air Station and Steuart

Petroleum.

COMAR 26.11.13 does not define the term ``jet fuel'' per se, but

does define ``gasoline'' as follows: ``Gasoline means a petroleum

distillate or alcohol, or their mixtures, having a true vapor pressure

within the range of 1.5 to 11 pounds per square inch absolute (psia)

(10.3 to 75.6 kilonewton/square meter) that is used as fuel for

internal combustion engines or aircraft [emphasis added].'' According

to the Maryland Department of Environment, JP deg.4 jet fuel has a

vapor pressure of 1.6 psia at 70oF, and therefore, is defined as a

gasoline under the regulation and subject to the rule's

[[Page 70668]]

provisions. By its intent, Maryland's regulation is not meant to apply

to other jet fuels, whether for commercial or military use.

Comment: EPA's proposed approval mistakenly intimates that JP-4

includes all jet fuel. In so doing, it has effectively misstated the

purpose of the amended Maryland regulation noting for example, without

qualification, that the SIP revision is intended ``to establish VOC

emission control requirements on sources that store and handle jet

fuel.'' The approval should be clarified to recognize the distinction

in the regulation between JP-4 and those jet fuels which were not

intended to be the subject of the SIP revision because they do not

possess volatility properties similar to gasoline.

Response: In the SIP submittal, both Maryland's cover letter and

TSD that accompanied the revisions to COMAR 26.11.13 state that the

amendments establish RACT requirements for the storage and handling of

JP-4, a jet fuel. EPA agrees that the statement referenced by the

commenter may have been misleading by implying that this regulation

applies to jet fuels other than JP-4. EPA agrees with the commenter

that jet fuels that do not possess the volatility properties as defined

in Maryland's definition of ``gasoline'' are not intended to be subject

to the regulation.

Comment: Clarification is requested that this rule does not apply

to other jet fuels, specifically, JP-8, JET-A, JET-A1 and other

commercially used jet fuels.

Response: According to information supplied by the commenters, the

referenced commercial jet fuels do not have vapor pressure properties

that fall within the range of vapor pressure defined in Maryland's

definition of ``gasoline.'' Based on this information, these fuels

would not be subject to the provisions of COMAR 26.11.13. Furthermore,

Maryland's TSD clearly states that this regulation applies to the

storage and handling of JP-4 and not to JP-8. Other specific jet fuels

are not mentioned in Maryland's TSD as being subject to the regulation.

Other specific requirements of Maryland's SIP revision and the

rationale for EPA's proposed action are explained in the August 26,

1998 direct final rulemaking and will not be restated here.

Final Action

EPA is approving the revisions to COMAR 26.11.13 into the Maryland

SIP.

Administrative Requirements

A. Executive Order 12866

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

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. requires EPA to

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

state, local, and tribal governments, the nature of their concerns,

copies of written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, E.O. 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This final rule is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not address an environmental health or safety risk that

would have a disproportionate effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on

[[Page 70669]]

such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66

(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

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

annual costs to State, local, or tribal governments in the aggregate;

or to 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 promulgated does not

include a Federal mandate that may result in estimated annual 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.

G. 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 rule 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

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

judicial review of this approval of revisions to COMAR 26.11.13 must be

filed in the United States Court of Appeals for the appropriate circuit

by February 22, 1999. 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, Ozone, Reporting and recordkeeping

requirements.

Dated: December 7, 1998.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

40 CFR part 52 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 et seq.

2. Section 52.1070 is amended by adding paragraph (c)(130) to read

as follows:

Sec. 52.1070 Identification of plan.

* * * * *

(c) * * *

(130) Revisions to the Maryland State Implementation Plan submitted

on March 31, 1998 by the Maryland Department of the Environment.

(i) Incorporation by reference.

(A) Letter of March 31, 1998 from the Maryland Department of the

Environment transmitting revisions to Maryland's air quality regulation

COMAR 26.11.13, pertaining to the control of VOC emissions from sources

that store and handle JP-4 jet fuel adopted by the Secretary of the

Environment on March 28, 1997 and effective August 11, 1997.

(B) Revisions to COMAR 26.11.13.01(B)(4) the definition of

``gasoline.''

(ii) Additional Material: Remainder of March 31, 1998 Maryland

State submittal pertaining to COMAR 26.11.13 control of VOCs from

sources that store and handle JP-4 jet fuel.

* * * * *

[FR Doc. 98-33841 Filed 12-21-98; 8:45 am]

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