Air Plan Approval; Kentucky; Removal of Stage II Gasoline Vapor Recovery Program |
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Heather McTeer Toney
Environmental Protection Agency
17 August 2016
[Federal Register Volume 81, Number 159 (Wednesday, August 17, 2016)]
[Proposed Rules]
[Pages 54780-54783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19538]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2016-0312; FRL-9950-81-Region 4]
Air Plan Approval; Kentucky; Removal of Stage II Gasoline Vapor
Recovery Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve changes to the Kentucky State Implementation Plan (SIP)
submitted by the Commonwealth of Kentucky through its Energy and
Environment Cabinet (EEC) on May 3, 2016. This SIP revision seeks to
remove Stage II vapor control requirements for new and upgraded
gasoline dispensing facilities in the State and allow for the
decommissioning of existing Stage II equipment in Boone, Campbell and
Kenton Counties in Kentucky. EPA has preliminarily determined that
Kentucky's May 3, 2016, SIP revision is approvable because it is
consistent with the Clean Air Act (CAA or Act).
DATES: Written comments must be received on or before September 16,
2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2016-0312 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Regulatory
[[Page 54781]]
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Ms. Sheckler's phone number is (404) 562-9222. She can also
be reached via electronic mail at sheckler.kelly@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background for Federal Stage II Requirements
Stage I vapor recovery is a type of emission control system that
captures gasoline vapors that are released when gasoline is delivered
to a storage tank. The vapors are returned to the tank truck as the
storage tank is being filled with fuel, rather than released to the
ambient air. Stage II and onboard refueling vapor recovery (ORVR) are
two types of emission control systems that capture fuel vapors from
vehicle gas tanks during refueling. Stage II systems are specifically
installed at gasoline dispensing facilities and capture the refueling
fuel vapors at the gasoline pump nozzle. The system carries the vapors
back to the underground storage tank at the gasoline dispensing
facility to prevent the vapors from escaping to the atmosphere. ORVR
systems are carbon canisters installed directly on automobiles to
capture the fuel vapors evacuated from the gasoline tank before they
reach the nozzle. The fuel vapors captured in the carbon canisters are
then combusted in the engine when the automobile is in operation.
Under section 182(b)(3) of the CAA, each state was required to
submit a SIP revision to implement Stage II for all ozone nonattainment
areas classified as moderate, serious, severe, or extreme, primarily
for the control of volatile organic compounds (VOC)--a precursor to
ozone formation.\1\ However, section 202(a)(6) of the CAA states that
the section 182(b)(3) Stage II requirements for moderate ozone
nonattainment areas shall not apply after the promulgation of ORVR
standards.\2\ ORVR standards were promulgated by EPA on April 6, 1994.
See 59 FR 16262 and 40 CFR parts 86, 88 and 600. As a result, the CAA
no longer requires moderate areas to impose Stage II controls under
section 182(b)(3), and such areas were able to submit SIP revisions, in
compliance with section 110(l) of the CAA, to remove Stage II
requirements from their SIPs. EPA's policy memoranda related to ORVR,
dated March 9, 1993, and June 23, 1993, provide further guidance on
removing Stage II requirements from certain areas. The policy
memorandum dated March 9, 1993, states that ``[w]hen onboard rules are
promulgated, a State may withdraw its Stage II rules for moderate areas
from the SIP (or from consideration as a SIP revision) consistent with
its obligations under sections 182(b)(3) and 202(a)(6), so long as
withdrawal will not interfere with any other applicable requirement of
the Act.'' \3\
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\1\ Section 182(b)(3) states that each State in which all or
part of an ozone nonattainment area classified as moderate or above
shall, with respect to that area, submit a SIP revision requiring
owners or operators of gasoline dispensing systems to install and
operate vapor recovery equipment at their facilities. Specifically,
the CAA specifies that the Stage II requirements 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 of the CAA, any facility that
dispenses more than 50,000 gallons of gasoline per month.
Additionally, the CAA specifies the deadlines by which certain
facilities must comply with the Stage II requirements. For
facilities that are not owned or operated by an ISBM, these
deadlines, calculated from the time of State adoption of the Stage
II requirements, 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) by November 15, 1994, for all other facilities.
For ISBMs, section 324(a) of the CAA provides the following three-
year phase-in period: (1) 33 percent of the facilities owned by an
ISBM by the end of the first year after the regulations take effect;
(2) 66 percent of such facilities by the end of the second year; and
(3) 100 percent of such facilities after the third year.
\2\ ORVR is a system employed on gasoline-powered highway motor
vehicles to capture gasoline vapors displaced from a vehicle fuel
tank during refueling events. These systems are required under
section 202(a)(6) of the CAA and implementation of these
requirements began in the 1998 model year. Currently they are used
on all gasoline-powered passenger cars, light trucks and complete
heavy trucks of less than 14,000 pounds GVWR. ORVR systems typically
employ a liquid file neck seal to block vapor escape to the
atmosphere and otherwise share many components with the vehicles'
evaporative emission control system including the onboard diagnostic
system sensors.
\3\ Memorandum from John S. Seitz, Director, Office of Air
Quality Planning and Standards, to EPA Regional Air Directors,
Impact of the Recent Onboard Decision on Stage II Requirements in
Moderate Areas (March 9, 1993), available at: http://www.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19930309_seitz_onboard_impact_stage2_.pdf.
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CAA section 202(a)(6) also provides discretionary authority to the
EPA Administrator to, by rule, revise or waive the section 182(b)(3)
Stage II requirement for serious, severe, and extreme ozone
nonattainment areas after the Administrator determines that ORVR is in
widespread use throughout the motor vehicle fleet. On May 16, 2012, in
a rulemaking entitled ``Air Quality: Widespread Use for Onboard
Refueling Vapor Recovery and Stage II Waiver,'' EPA determined that
ORVR technology is in widespread use throughout the motor vehicle fleet
for purposes of controlling motor vehicle refueling emissions. See 77
FR 28772. By that action, EPA waived the requirement for states to
implement Stage II gasoline vapor recovery systems at gasoline
dispensing facilities in nonattainment areas classified as serious and
above for the ozone NAAQS. Effective May 16, 2012, states implementing
mandatory Stage II programs under section 182(b)(3) of the CAA were
allowed to submit SIP revisions to remove this program. See 40 CFR
51.126(b).\4\ On April 7, 2012, EPA released the guidance entitled
``Guidance on Removing Stage II Gasoline Vapor Control Programs from
State Implementation Plans and Assessing Comparable Measures'' for
states to consider in preparing their SIP revisions to remove existing
Stage II programs from state implementation plans.\5\
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\4\ As noted above, EPA found, pursuant to CAA section
202(a)(6), that ORVR systems are in widespread use in the motor
vehicle fleet and waived the CAA section 182(b)(3) Stage II vapor
recovery requirement for serious and higher ozone nonattainment
areas on May 16, 2012. Thus, in its implementation rule for the 2008
ozone NAAQS, EPA removed the section 182(b)(3) Stage II requirement
from the list of applicable requirements in 40 CFR 51.1100(o). See
80 FR 12264 for additional information.
\5\ This guidance document is available at: http://www.epa.gov/groundlevelozone/pdfs/20120807guidance.pdf.
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II. Kentucky's Stage II Requirements for the Northern Kentucky Area
On November 6, 1991, EPA designated and classified Boone, Campbell
and Kenton Counties in Kentucky (hereinafter referred to as the
``Northern Kentucky Area'' or ``Area'') as part of the seven-county
area in and around the Cincinnati-Hamilton, OH-KY, area as a moderate
nonattainment area for the 1-hour ozone NAAQS.\6\ See 56 FR 56694,
56764. As mentioned above, the ``moderate'' classification triggered
various statutory requirements for this Area, including the requirement
pursuant to section 182(b)(3) of the CAA for the Area to require all
owners and operators of gasoline dispensing systems to install and
operate a system for gasoline vapor recovery of emissions from the
fueling of motor vehicles known as ``Stage II.'' \7\
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\6\ The other counties in this nonattainment area were Butler,
Clermont, Hamilton and Warren Counties in Ohio. See 56 FR 56813.
\7\ As discussed above, Stage II is a system designed to capture
displaced vapors that emerge from inside a vehicle's fuel tank when
gasoline is dispensed into the tank. There are two basic types of
Stage II systems, the balance type and the vacuum assist type.
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On February 3, 1998, the Commonwealth of Kentucky submitted a SIP
revision to address the Stage II
[[Page 54782]]
requirements for the Northern Kentucky Area. EPA approved that SIP
revision, containing Kentucky regulation 401 KAR 59:174--Stage II
controls at gasoline dispensing facilities, in a notice published on
February 8, 1999. 63 FR 67586. Northern Kentucky's Stage II rule, as
currently incorporated into the SIP, requires that Stage II systems be
tested and certified to meet a 95 percent emission reduction efficiency
by using a system approved by the California Air Resources Board
(CARB). The rule requires sources to verify proper installation and
function of Stage II equipment through use of a liquid blockage test
and a leak test prior to system operation and every five years or upon
major modification of a facility (i.e., 75 percent or more equipment
change). The Commonwealth also established an inspection program
consistent with that described in EPA's Stage II guidance and has
established procedures for enforcing violations of the Stage II
requirements.
On December 13, 1999, Kentucky submitted to EPA a request to
redesignate the Northern Kentucky Area to attainment for the 1-hour
ozone standard and an associated maintenance plan. The maintenance
plan, as required under section 175A of the CAA, showed that nitrogen
oxides and VOC emissions in the Area would remain below the 1996
``attainment year'' levels through the greater than ten-year period
from 1996-2010. In making these projections, Kentucky factored in the
emissions benefit of the Area's Stage II program, thereby maintaining
this program as an active part of its 1-hour ozone SIP. Originally, the
redesignation request and maintenance plan were approved by EPA,
effective July 5, 2000. See 65 FR 37879. However, the United States
Court of Appeals for the Sixth Circuit vacated EPA's approval of this
redesignation request and maintenance plan and remanded it back to EPA
after the Court concluded that EPA erred in one respect pertaining only
to the Ohio portion of the Area. On July 31, 2002, EPA reinstated the
approval of the redesignation request and maintenance plan for
Kentucky. See 67 FR 49600.
Subsequently, Boone, Campbell and Kenton Counties in Kentucky (or
portions thereof) were designated nonattainment as a part of a larger
tri-state nonattainment area which included Kentucky, Ohio and Indiana
counties in and around the Cincinnati area for both the 1997 8-hour
ozone and 2008 8-hour ozone NAAQS. On August 5, 2010, the Area (i.e.,
the Kentucky portion of the tri-state Cincinnati-Hamilton Area) was
redesignated to attainment of the 1997 8-hour ozone NAAQS. See 75 FR
47218. The tri-state Cincinnati-Hamilton Area is attaining the 2008 8-
hour ozone NAAQS, and the Commonwealth is in the process of submitting
a redesignation request and maintenance plan for the 2008 8-hour ozone
NAAQS.
III. Analysis of the Commonwealth's Submittal
On May 3, 2016, the Commonwealth of Kentucky submitted a SIP
revision to EPA seeking modifications of the Stage II requirements in
the Northern Kentucky Area. Specifically, it seeks the removal of the
Stage II requirements in Kentucky regulation 401 KAR 59:174--Stage II
Controls at gasoline dispensing facilities. These modifications would
remove Stage II vapor control requirements for new and upgraded
gasoline dispensing facilities in the State and allow for the
decommissioning of existing Stage II equipment.
EPA's primary consideration for determining the approvability of
the Commonwealth of Kentucky's request is whether this requested action
complies with section 110(l) of the CAA.\8\ Section 110(l) requires
that a revision to the SIP not interfere with any applicable
requirement concerning attainment and reasonable further progress (as
defined in section 171), or any other applicable requirement of the
Act. EPA evaluates each section 110(l) noninterference demonstration on
a case-by-case basis, considering the circumstances of each SIP
revision. EPA interprets 110(l) as applying to all NAAQS that are in
effect, including those that have been promulgated but for which the
EPA has not yet made designations. The degree of analysis focused on
any particular NAAQS in a noninterference demonstration varies
depending on the nature of the emissions associated with the proposed
SIP revision. EPA's analysis of Kentucky's May 3, 2016, SIP revision
pursuant to section 110(l) is provided below.
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\8\ CAA section 193 is not relevant because Kentucky's Stage II
rule was not included in the SIP before the 1990 CAA amendments.
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In its May 3, 2016, SIP revision, Kentucky used EPA's guidance
entitled ``Guidance on Removing Stage II Gasoline Vapor Control
Programs from State Implementation Plans and Assessing Comparable
Measures'' to conduct a series of calculations to determine the
potential impact on air quality of removing the Stage II program.\9\
Kentucky's analysis focused on VOC emissions because, as mentioned
above, Stage II requirements affect VOC emissions and because VOC are a
precursor for ozone formation.\10\ The results of Kentucky's analysis
are provided in the table below.
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\9\ EPA, Guidance on Removing Stage II Gasoline Vapor Control
Programs from State Implementation Plans and Assessing Comparable
Measures, EPA-457/B-12-001 (Aug. 7, 2012), available at https://www.epa.gov/ozone-pollution/ozone-stage-two-vapor-recovery-rule-and-guidance. This guidance document notes that ``the potential emission
control losses from removing Stage II VRS are transitional and
relatively small. ORVR-equipped vehicles will continue to phase in
to the fleet over the coming years and will exceed 80 percent of all
highway gasoline vehicles and 85 percent of all gasoline dispensed
during 2015. As the number of these ORVR-equipped vehicles increase,
the control attributed to Stage II VRS will decrease even further,
and the potential foregone Stage II VOC emission reductions are
generally expected to be no more than one percent of the VOC
inventory in the area.''
\10\ Two counties in Kentucky are currently designated
nonattainment for the 1997 Annual fine particulate matter
(PM2.5) standard: Bullitt and Jefferson. While VOC is one
of the precursors for particulate matter (NAAQS) formation, studies
have indicated that, in the southeast, emissions of direct
PM2.5 and the precursor sulfur oxides are more
significant to ambient summertime PM2.5 concentrations
than emissions of nitrogen oxides and anthropogenic VOC. See, e.g.,
Quantifying the sources of ozone, fine particulate matter, and
regional haze in the Southeastern United States, Journal of
Environmental Management (2009), available at: http://www.sciencedirect.com/science/article/pii/S0301479709001893.
Table 1--VOC Emissions Difference Between Stage II VRS in Place and
Removed
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VOC emissions
Year (tons per day)
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2011.................................................. N/A
2014.................................................. -0.21
2017.................................................. -0.15
2020.................................................. -0.10
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Table 1 shows that the removal of Stage II vapor recovery systems
in the Northern Kentucky Area starting in 2014 would have resulted and
will result in a VOC emission decrease. If instead Stage II
requirements are kept in place, VOC emissions will decrease by less,
and it will less beneficial to air quality in Northern Kentucky to keep
Stage II systems in operation.\11\
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\11\ The emissions-reduction disbenefit associated with
continued implementation of Stage II requirements is due to the
incompatibility of some Stage II and ORVR systems. Compatibility
problems can result in an increase in emissions from the underground
storage tank (UST) vent pipe and other system fugitive emissions
related to the refueling of ORVR vehicles with some types of vacuum
assist-type Stage II systems. This occurs during refueling an ORVR
vehicle when the vacuum assist system draws fresh air into the UST
rather than an air vapor mixture from the vehicle fuel tank. Vapor
flow from the vehicle fuel tank is blocked by the liquid seal in the
fill pipe which forms at a level deeper in the fill pipe than can be
reached by the end of the nozzle spout. The fresh air drawn into the
UST enhances gasoline evaporation in the UST which increases
pressure in the UST. Unless it is lost as a fugitive emission, any
tank pressure in excess of the rating of the pressure/vacuum valve
is vented to the atmosphere over the course of a day. See EPA,
Guidance on Removing Stage II Gasoline Vapor Control Programs from
State Implementation Plans and Assessing Comparable Measures, EPA-
457/B-12-001 (Aug. 7, 2012), available at: https://www.epa.gov/ozone-pollution/ozone-stage-two-vapor-recovery-rule-and-guidance.
Thus, as ORVR technology is phased in, the amount of emission
control that is gained through Stage II systems decreases.
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The affected sources covered by Kentucky's Stage II vapor recovery
requirements are sources of VOC. Other criteria pollutants (carbon
monoxide, sulfur dioxide, nitrogen dioxide, particulate matter, and
lead) are not emitted by gasoline dispensing facilities and will not be
affected by the removal of Stage II controls.
The proposed revisions to 401 KAR 59:174 include that gasoline
dispensing facilities located in Boone, Campbell and Kenton Counties
shall decommission and remove the systems no later than December 31,
2018. Kentucky noted in its submission that the decommissioning
procedures in the revised version of 401 KAR 59:174 follow Petroleum
Equipment Institute (PEI) guidance, ``Recommended Practices for
Installation and Testing of Vapor Recovery Systems at Vehicle Refueling
Sites,'' PEI/RP300-09.
EPA is proposing to determine that Kentucky's technical analysis is
consistent with EPA's guidance on removing Stage II requirements from a
SIP, including as it relates to the decommissioning and phasing out of
the Stage II requirements for the Northern Kentucky Area. EPA is also
making the preliminary determination that Kentucky's SIP revision is
consistent with the CAA and with EPA's regulations related to removal
of Stage II requirements from the SIP and that these changes will not
interfere with any applicable requirement concerning attainment or any
other applicable requirement of the CAA, and therefore satisfy section
110(l).
IV. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Kentucky Regulation 401 KAR 59:174--Stage II controls at
gasoline dispensing facilities, effective March 4, 2016. EPA has made,
and will continue to make, these materials generally available through
www.regulations.gov and/or at the EPA Region 4 office (please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Proposed Action
EPA is proposing to approve the Commonwealth of Kentucky's May 3,
2016, SIP revision that changes Kentucky's Stage II rule, 401 KAR
59:174, to allow for the removal of the Stage II requirement and the
orderly decommissioning of Stage II equipment. EPA is proposing this
approval because the Agency has made the preliminary determination that
the Commonwealth of Kentucky's May 3, 2016, SIP revision related to the
Commonwealth's Stage II rule is consistent with the CAA and with EPA's
regulations and guidance.
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. See 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
proposed action merely proposes to approve state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-19538 Filed 8-16-16; 8:45 am]
BILLING CODE 6560-50-P