00-21196. Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Revisions to Stage II Vapor Recovery Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. This submittal contains a revised Stage II vapor recovery regulation. The intended effect of this action is to propose approval of Massachusetts' revised Stage II rule. This action is being taken under the Clean Air Act (CAA).

DATES:

Written comments must be received on or before September 20, 2000. 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 David Conroy, Unit Manager, Air Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Boston, MA 02114-2023. Copies of the State submittal 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 the Business Compliance Division, Bureau of Waste Prevention, Department of Environmental Protection, One Winter Street, 7th Floor, Boston, MA.

FOR FURTHER INFORMATION CONTACT:

Anne E. Arnold, [phone].

SUPPLEMENTARY INFORMATION:

This section is organized as follows:

What action is EPA taking?

What are the CAA requirements for Stage II programs?

What revisions did Massachusetts make to its Stage II rule?

Why is EPA approving Massachusetts' revised Stage II rule?

What is the process for EPA's approval of this SIP revision?

What Action is EPA Taking?

EPA is proposing to approve Massachusetts' revised 310 CMR 7.24(6) “Dispensing of Vehicle Fuel” and incorporate this rule into the Massachusetts SIP. The revised rule was proposed by the Massachusetts Department of Environmental Protection (DEP) in January 2000 and was submitted to EPA for parallel processing on August 9, 2000.

What Are the CAA Requirements for Stage II Programs?

Section 182(b)(3) of the Clean Air Act (as modified by EPA's rulemaking under section 202(a)(6)) requires that States with serious or above ozone nonattainment areas adopt Stage II vapor recovery rules for gasoline dispensing facilities. In addition, section 184(b)(2) of the Clean Air Act (CAA) requires that states in the Ozone Transport Region adopt Stage II or comparable measures. EPA approved an early version of Massachusetts' Stage II rule 310 CMR 7.24(6) as strengthening the SIP. See 57 FR 58993 (December 14, 1992). EPA later approved a revised version of 310 CMR 7.24(6) as meeting the requirements of section 182(b)(3) and section 184(b)(2) of the CAA. See 58 FR 48315 (September 15, 1993).

What Revisions Did Massachusetts Make to its Stage II Rule?

In order to justify the level of emission reductions claimed in its SIP, Massachusetts is currently adding the following new provisions to its Stage II rule: (1) A provision explicitly requiring the installation of CARB (California Air Resources Board) approved Stage II systems; (2) a provision requiring annual Stage II system compliance testing and certification; and (3) a provision explicitly requiring weekly visual inspections of the Stage II system components. In addition, a provision addressing the direct refueling of a motor vehicle from a tank truck is included in Massachusetts' revised Stage II rule. This provision was adopted by DEP and submitted to EPA as a SIP revision in 1995 but has not yet been approved into the Massachusetts SIP. Each of the four new provisions is discussed below in more detail.

(1) Installation of CARB Approved Stage II Systems

The version of 310 CMR 7.24(6) which is currently in the SIP requires that subject facilities install and operate a vapor collection and control system that recovers at least 95 percent of the vapors generated during the refueling of a motor vehicle. Although this version of the rule does not explicitly reference CARB approved Stage II systems, requiring CARB approved systems is the method used by the DEP to implement the 95 percent control requirement. See 57 FR 58993 (December 14, 1992). The revised rule submitted on August 9, 2000 explicitly requires CARB approved Stage II systems. In addition, revised 310 CMR 7.24(6)(g) contains a list of the DEP approved CARB Stage II Executive Orders. Also, the revised rule states that facilities must comply with the conditions of any new or modified Executive Order upon DEP revision to 310 CMR 7.24(6)(g) to incorporate such new or modified Executive Order. When the DEP revises the 310 CMR 7.24(6)(g) listing of Executive Orders, the DEP will need to submit those revisions to EPA in order for those new orders to be compliance methods under the federal SIP.

(2) Annual Stage II System Compliance Testing and Certification

The revised rule requires installation testing and compliance certification, as well as annual in-use compliance testing and certification, for all Stage II systems. The revised rule also requires 120 day in-use compliance testing and certification for vacuum assist systems. In addition, the revised rule allows facilities the choice of submitting an alternative annual in-use compliance certification if the facility has passed its tests on the first try for two consecutive years. In this case, an annual certification attesting that the system is correctly operated and maintained is required but compliance tests may be conducted on an every other year schedule. The specific compliance tests to be conducted are outlined in the table below.

Stage II System Compliance Testing

	Vapor balance system	Vacuum assist system
Installation	Pressure Decay Test and Dynamic Pressure/Liquid Blockage Test	Pressure Decay Test; Dynamic Pressure/Liquid Blockage Test; and Air-to-Liquid Ratio Test.
120-day in-use	Not applicable	Pressure Decay Test and Air-to-Liquid Ratio Test.
Annual in-use	Pressure Decay Test annually and Dynamic Pressure/Liquid Blockage Test every third year	Pressure Decay Test and Air-to-Liquid Ratio test annually and Dynamic Pressure/Liquid Blockage Test every third year.
Alternative Annual in-use	Pressure Decay Test and Dynamic Pressure/Liquid Blockage Test	Pressure Decay Test; Dynamic Pressure/Liquid Blockage Test; and Air-to-Liquid Ratio Test.

Furthermore, the revised rule also includes requirements regarding the Stage II compliance testing company. On or after November 15, 2000, any person who owns, leases, operates or controls a company that performs Stage II compliance tests must submit to the DEP a Stage II compliance testing company notification prior to performing any Stage II compliance tests. The revised rule requires that the testing company submit, at least once every two weeks, a written list to the DEP identifying the dates and addresses of scheduled tests to be performed over the next 14 day period. The revised rule also requires that persons conducting the tests be trained in accordance with the applicable testing protocols and procedures. In addition, the revised rule cites the specific CARB test procedures to be followed. The testing company must certify that each compliance test performed was conducted in accordance with these test procedures and must maintain records of compliance test results for a minimum of five years.

(3) Weekly Visual Inspections of the Stage II System Components

The version of 310 CMR 7.24(6) that is currently in the SIP contains several provisions regarding maintenance of the Stage II system. Specifically, the rule requires that the system be maintained such that it recovers at least 95 percent by weight of the vapors displaced during the dispensing of motor vehicle fuel and requires “Out of Order” signs to be placed on above ground parts of the Stage II system which are not fully operative until the system has been repaired. In addition, the rule requires that records of any failure or malfunction of the system, as well as records of any maintenance performed, be kept. The revised rule submitted on August 9, 2000 includes similar provisions but also explicitly requires weekly visual inspections of a specific list of Stage II system components to be conducted by a person who is trained to operate and maintain the system in accordance with the conditions of the applicable CARB Executive Order. In addition, the revised rule requires that malfunctioning equipment that has been taken out of service be repaired or replaced within 14 days.

(4) Direct Refueling of a Motor Vehicle From a Tank Truck

The revised rule requires that a tank truck engaged in the direct dispensing of motor vehicle fuel to a motor vehicle or a portable container install a CARB approved Stage II system. Tank trucks dispensing motor vehicle fuel to emergency motor vehicles or portable containers during fire fighting activities or a declared emergency situation are exempt from this requirement. This provision was adopted by DEP and submitted to EPA as a SIP revision in 1995 but has not yet been approved into the Massachusetts SIP.

Why is EPA Approving Massachusetts' Revised Stage II Rule?

EPA is approving Massachusetts' revised Stage II rule because the revisions will significantly improve the enforceability and emission reductions associated with the rule. Previously, the resources DEP devoted to Stage II enforcement and the wording of the existing rule called into question the Stage II reductions assumed in the Massachusetts SIP. In its attainment demonstration SIP submittal, DEP committed to submit a revised Stage II rule. EPA's proposed rulemaking on the western Massachusetts attainment demonstration noted that the Stage II SIP submittal was one of two outstanding SIP elements that must be approved into the Massachusetts SIP in order for EPA to be able to fully approve the western Massachusetts attainment demonstration. See 64 FR 70319 (December 16, 1999). With the revised Stage II rule, along with the resources DEP is currently devoting to Stage II enforcement, EPA believes that the assumed level of SIP credit will be achieved.

What is the Process for EPA's Approval of This SIP Revision?

EPA is soliciting public comments on the issues discussed in this document 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 document.

Furthermore, EPA's proposal is based on the submittal received by EPA on August 9, 2000 that contains Massachusetts' preliminary final amendments to its Stage II rule. DEP must submit to EPA the final adopted version of this rule before EPA can take final action. This administrative procedure, known as “parallel processing,” is permitted under EPA's rules for processing SIPs in Appendix V to 40 CFR part 51.

Proposed Action

EPA is proposing to approve Massachusetts' revised 310 CMR 7.24(6) “Dispensing of Motor Vehicle Fuel” and incorporate this rule into the Massachusetts SIP.

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.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act.

Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Ozone

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

Dated: August 11, 2000.

Mindy Lubber,

Regional Administrator, EPA New England.