E9-12575. Approval and Promulgation of Implementation Plans; Florida; Removal of Gasoline Vapor Recovery From the Southeast Florida Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve revisions to the State Implementation Plan (SIP) submitted by the State of Florida on May 31, 2007, for the purpose of removing Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in Dade, Broward, and Palm Beach Counties (hereafter referred to as the “Southeast Florida Area”), and to phase out Stage II requirements for existing facilities in those counties. In addition, EPA is approving this SIP revision which requires new and upgraded gasoline dispensing facilities and new bulk gasoline plants statewide to employ Stage I vapor control systems, and phases in Stage I vapor control requirements statewide for existing gasoline dispensing facilities. This final rule addresses a comment made on EPA's proposed rulemaking previously published for this action.

DATES:

This rule will be effective July 1, 2009.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-0836. All documents in the electronic docket are listed in the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that, if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Twunjala Bradley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Ms. Bradley can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. EPA Guidance and Clean Air Act (CAA) Requirements

III. Today's Action

IV. Comment and Response

V. Final Action

VI. Statutory and Executive Order Review

I. Background

On January 6, 1992, EPA designated the Southeast Florida Area as a “moderate” ozone nonattainment area for the 1-hour ozone standard (56 FR 56694). As a result of the designation, the State of Florida was required to implement Stage II vapor recovery. Pursuant to the requirements of section 182(b)(3) of the CAA, Florida developed Florida Administrative Code (F.A.C.) Rule 62-252.400, “Gasoline Dispensing Facilities-Stage II Vapor Recovery.” The rule established that new gasoline dispensing facilities built after November 15, 1992, were required to employ Stage II systems upon start-up; and existing facilities were required to install Stage II systems by specific dates ranging from June 30, 1993, to November 15, 1994. This State rule was submitted as part of Florida's SIP and approved by EPA effective April 25, 1994 (59 FR 13883).

On November 8, 1993, Florida submitted to EPA an ozone redesignation request and maintenance plan for the Southeast Florida Area for attainment status for the 1-hour ozone standard. This request was due to the State implementing all measures required for moderate ozone nonattainment areas under the CAA and exhibiting three years of clean data (1990-1992) for the 1-hour ozone standard. The maintenance plan, demonstrated that nitrogen oxides (NO_X) and volatile organic compound (VOC) emissions in the area would remain below the 1990 “attainment year” levels throughout the ten-year period from 1995 to 2005. In making these projections, Florida factored in the emissions benefit (primarily VOCs) of the area's Stage II program, thereby maintaining this program as part of its 1-hour ozone SIP. EPA approved the maintenance plan and redesignation request effective April 25, 1995 (60 FR 10325). Subsequently, the maintenance plan was extended by Florida to 2015 and approved by EPA, effective April 13, 2004 (69 FR 7127).

On May 31, 2007, Florida submitted a SIP revision requesting the removal of Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in the Southeast Florida Area, and to phase out Stage II requirements for existing facilities in those counties. In addition to removing Stage II requirements for the Southeast Florida Area, Florida's SIP revision requires Stage I vapor recovery at new and upgraded gasoline dispensing facilities statewide; phase in Stage I vapor recovery statewide for existing gasoline dispensing facilities not previously required to have Stage I; and tanker trucks and trailers to ensure connection of the vapor return line at facilities equipped for Stage I vapor recovery statewide. Currently, Florida's Stage I vapor recovery is required for gasoline dispensing facilities in seven counties designated as maintenance areas for 8-hour ozone (including Duval, Orange, Hillsborough, Pinellas, Palm Beach, Broward, and Miami-Dade Counties).

On September 16, 2008, EPA simultaneously published a proposed rule (73 FR 53404) and a direct final rule (73 FR 53378) approving the aforementioned revisions to Florida's SIP. The proposed and direct final rules stated that if EPA received adverse comment by October 16, 2008, the direct final rule would be withdrawn and would not take effect. EPA subsequently received an adverse comment regarding the approval of the submittal on September 16, 2008, and thus withdrew the direct final rulemaking on October 27, 2008 (73 FR 63639).

II. EPA Guidance and CAA Requirements

On April 6, 1994, EPA promulgated the regulations requiring the phase-in of on-board refueling vapor recovery (ORVR) systems on new motor vehicles. Under CAA section 202(a)(6) areas classified under section 181 as moderate ozone nonattainment areas were not required to implement Stage II vapor recovery programs after promulgation of the ORVR standards. The CAA no longer required moderate areas to impose Stage II controls under section 182(b)(3) and such areas could implement SIP revisions to remove the requirements. However, at the time of ORVR promulgation, the Southeast Florida Area Stage II program was already in place and had been included in the State's November 8, 1993, redesignation request and 1-hour ozone maintenance plan for the area; therefore Florida elected not to remove the program from the SIP at that time.

As mentioned above, the Southeast Florida Area is currently designated as attainment for the 1997 8-hour (0.08 parts per million (ppm)) ozone standard and has had an approved attainment and maintenance plan for the 1-hour ozone standard since April 25, 1995 (60 FR 10325). On March 12, 2008, EPA strengthened its National Ambient Air Quality Standard (NAAQS) for the 8-hour primary ground-level ozone standard from 0.08 ppm (previously set in 1997) to 0.075 ppm. The Southeast Florida Area's 8-hour ozone standard design values for the years 2005-2007 were 0.074 ppm for Dade County, 0.067 ppm for Broward County and 0.066 ppm for Palm Beach County. These levels were below both the 1997 8-hour ozone standard and the 2008 8-hour ozone standard. Preliminary data through 2008 indicates that the Southeast Florida Area is in compliance of both the 1997 and 2008 8-hour ozone standards.

On January 5, 2005, EPA published nonattainment and attainment designations for the PM_2.5 standard (70 FR 944). The Southeast Florida Area was designated as attainment for the PM_2.5 standard and has remained in attainment through 2008. The level of the current PM_2.5 annual standard is 15 micrograms per cubic meter (μg/m³). The annual PM_2.5 design value for Southeast Florida Area for the period of 2005-2007 was 8.6 μg/m³. On October 17, 2006, EPA promulgated a revised NAAQS for PM_2.5 retaining the annual PM_2.5 standard of 15 μg/m³ and revising the 24-hour PM_2.5 standard from 65 μg/m³ to 35 μg/m³. The effective date for the new standard was December 18, 2006.^[1] Florida submitted a letter dated December 12, 2007, which recommended that the entire State of Florida be designated as attainment for the PM_2.5 standard. On December 22, 2008, in accordance with the CAA, EPA designated the State of Florida (including Southeast Florida Area) as attainment of the 2006, 24-hour PM_2.5 standard. The daily PM_2.5 design value for Southeast Florida Area for the period of 2005-2007 was 24.3 μg/m³. Preliminary data through 2008 indicates that the Southeast Florida Area is in compliance of both the 1997 and 2006 particulate matter standards.

EPA's primary consideration for determining the approvability of Florida's request to remove Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in the Southeast Florida Area, and for the phase out of Stage II requirements for existing facilities in those counties, is contingent on whether this requested action complies with section 110(l) of the CAA. Section 110(l) of the CAA states that:

Each revision to an implementation plan submitted by a State under this Chapter shall be adopted by such State after reasonable notice and public hearing. The administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in Section 7501 of this title), or any other applicable requirement of this chapter.

III. Today's Action

EPA is taking final action to approve the SIP revision submitted by Florida for the purpose of removing Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in Miami-Dade, Broward, and Palm Beach Counties, and phasing out Stage II requirements for existing facilities in those counties. Additionally, EPA is approving rule changes which would require new and upgraded gasoline dispensing facilities and new bulk gasoline plants statewide to employ Stage I vapor control systems, and would phase in Stage I vapor control requirements statewide for existing gasoline dispensing facilities. EPA is also responding to the adverse comment received on the September 16, 2008, rulemaking proposing to approve the aforementioned revisions (see 73 FR 53378). These approval actions are based on EPA's analyses of whether these requests comply with section 110(l) of the CAA. EPA's analyses for the State of Florida's submittal are described in detail in the proposed and direct final rules published September 16, 2008 (73 FR 53404 and 73 FR 53378, respectively).

IV. Comment and Response

The following is a summary of the adverse comment received on the direct final and proposed rules published, September 16, 2008, and EPA's response to the comment.

Comment: The commenter alleges that removal of the Stage II vapor recovery requirement with sole reliance on ORVR canisters to reduce vehicle refueling emissions violates the EPA rules for such emissions to be less than or equal to 0.2 grams/gallon. The commenter provided data from a study that the commenter believes supports his claim.

Response: The commenter provided three sets of test data that he alleges shows that existing ORVR systems emit in excess of 0.2 grams/gallon. The results of the three sets of test data presented claim that actual emissions range from 0.481 to 1.002 grams/gallon. The commenter does not explain why he believes this is relevant to the removal of Stage II requirements in the Southeast Florida Area.

In this rulemaking, EPA is making no finding on the validity of the test data or the commenter's interpretation of the results presented. Rather, EPA assessed whether excess emissions of the magnitude alleged to occur by the commenter could impact the noninterference demonstration prepared by Florida.

Removing the Stage II vapor recovery requirement from the Southeast Florida Area's portion of the Florida SIP may result in a small, temporary increase in VOC emissions within the three Southeast Florida counties. In the May 31, 2007, SIP revision, Florida estimated anthropogenic VOC emissions in the Southeast Florida Area to be 512.6 tons/day in 2005, falling to 494.6 tons/day in 2010 and 467.2 tons/day in 2015. By comparison, 1990 VOC emission rates were 867.8 tons/day. Florida has projected a continued decrease in VOC emissions from 2005 to 2010 and 2015 even with the removal of Stage II vapor recovery systems. Specifically, Florida projects reductions from 2005 VOC emission rates of 18 tons/day in 2010 and 45.4 tons/day in 2015. The following table shows the expected emission changes in comparison with the emissions that would occur if the Stage II vapor recovery requirement were to remain in force.

Table 1—Total VOC ² Emissions From Southeast Florida Area With & Without Vehicle Refueling (Stage II)

[Tons per day]

	1990	2005	2010		2015
	without Stage II	with Stage II	with Stage II	without Stage II	with Stage II	without Stage II
Miami-Dade	399.8	208.3	200.0	202.1	191.6	192.8
Broward	239.6	154.6	145.3	147.2	135.9	136.9
Palm Beach	228.4	149.7	143.2	144.7	136.7	137.5
SE Florida Total	867.8	512.6	488.4	494.0	464.2	467.2

Using 2007 gasoline and gasohol sales data, if the commenter's data are accurate, the Southeast Florida Area emission inventories projections for 2010 and 2015 would only increase by 1.98 to 5.64 tons/day. This is significantly less than the expected reductions projected to occur from 2005 to 2010 (18 tons/day) and 2015 (45 tons/day). Hence, EPA concludes that even if the commenter's data are accurate, emissions of VOCs in the Southeast Florida Area would still continue to decrease from 2005 emission levels. Since the Southeast Florida Area was in attainment in 2005 for the ozone NAAQS, and continues to be in attainment, EPA has determined that removal of Stage II vapor recovery systems in the Southeast Florida Area would not result in interference with attainment or maintenance of the ozone NAAQS. Similarly, the Southeast Florida area is in attainment for the particulate matter NAAQS and, for the reasons stated in the proposal and previous direct final rule, EPA has determined that removal of Stage II vapor recovery systems in the Southeast Florida Area would not result in interference with attainment or maintenance of the ozone and particulate matter NAAQS, or any other Clean Air Act applicable requirement.

Based on the factors mentioned above, EPA believes that Florida's demonstration to remove the Stage II requirement from the Florida SIP for the Southeast Florida Area is consistent with section 110(l) of the CAA.

V. Final Action

EPA is taking final action to approve the revisions to the Florida SIP for the purpose of removing Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in Miami-Dade, Broward, and Palm Beach Counties, and phasing out Stage II requirements for existing facilities in those counties. Additionally, EPA is approving rule changes that would require new and upgraded gasoline dispensing facilities and new bulk gasoline plants statewide to employ Stage I vapor control systems, and would phase in Stage I vapor control requirements statewide for existing gasoline dispensing facilities. This SIP revision includes changes to F.A.C. Chapters 62-210.200 Definitions, 62-210.310 Air General Permits, 62-210.920 Air General Permit Forms, 62-252.200 Definitions, 62-252.300 Gasoline Dispensing Facilities—Stage I Vapor Recovery, 62-252.400 Gasoline Dispensing Facilities—Stage II Vapor Recovery, 62-252.500 Gasoline Tanker Trucks, 62-296-418 Bulk Gasoline Plants, and 62-296.509 Bulk Gasoline Plants (Repealed). These revisions are consistent with EPA guidance and the CAA, as amended in 1990.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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 action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Incorporation by reference
• Nitrogen dioxide
• Ozone, particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: May 11, 2009.

Beverly H. Banister,

Acting Regional Administrator, Region 4.

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.

Subpart K—Florida

2. Section 52.520(c) is amended by:

a. Under Chapter 62-210 revising entries for “62-210.200” and “62-210.300” and

b. Under Chapter 62-252 revising entries for “62-252.200”, “62-252.300”, “62-252.400” and “62-252.500” and

c. Under Chapter 62-296, revising entry for “62-296-509” and

d. Under Chapter 62-210, adding entries for “62-210.310” and “62-210.920” and

e. Under Chapter 62-296, adding the entry for “62-296.418” to read as follows:

§ 52.520

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Florida Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Chapter 62-210 Stationary Sources—General Requirements
*         *         *         *         *         *         *
62-210.200	Definitions	9/4/2006	June 1, 2009. [Insert citation of publication]
*         *         *         *         *         *         *
62-210.300	Permits Required	9/4/2006	June 1, 2009. [Insert citation of publication]
62-210.310	Air General Permits	9/4/2006	June 1, 2009. [Insert citation of publication]
*         *         *         *         *         *         *
62-210.920	Air General Permit Forms	9/4/2006	June 1, 2009. [Insert citation of publication]
*         *         *         *         *         *         *
Chapter 62-252 Gasoline Vapor Control
*         *         *         *         *         *         *
62-252.200	Definitions	9/4/2006	June 1, 2009. [Insert citation of publication]
62-252.300	Gasoline Dispensing Facilities-Stage I Vapor Recovery	9/4/2006	June 1, 2009. [Insert citation of publication]
62-252.400	Gasoline Dispensing Facilities-Stage II Vapor Recovery	9/4/2006	June 1, 2009. [Insert citation of publication]
62-252.500	Gasoline Tanker Trucks	9/4/2006	June 1, 2009. [Insert citation of publication]
*         *         *         *         *         *         *
Chapter 62-296 Stationary Sources—Emission Standards
*         *         *         *         *         *         *
62-296.418	Bulk Gasoline Plants	9/4/2006	June 1, 2009. [Insert citation of publication]
*         *         *         *         *         *         *
62-296.509	Bulk Gasoline Plants		June 1, 2009. [Insert citation of publication]	Repealed.
*         *         *         *         *         *         *

* * * * *

Footnotes

1.  On February 24, 2009, the U.S. Court of Appeals for the DC Circuit granted a petition for review of EPA's decision to retain the annual PM_2.5 standard of 15 μg/m³ and remanded the matter to EPA for further proceedings but did not vacate the standard. American Farm Bureau Federation v. EPA (D.C. Cir., No. 06-1410).

2.  The total VOC emissions in this area also include a biogenic component that is assumed constant over time. The biogenic VOC emissions for the individual counties are estimated at 211.3 tpd for Miami-Dade, 174.5 tpd for Broward, and 399.6 tpd for Palm Beach. These amounts can be added to the man-made emissions to get the total VOC emissions.