Approval of Air Quality Implementation Plans; New Jersey; Gasoline Vapor Recovery Requirements |
|---|
|
Peter Lopez
Environmental Protection Agency
18 June 2020
[Federal Register Volume 85, Number 118 (Thursday, June 18, 2020)]
[Rules and Regulations]
[Pages 36748-36752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11712]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2019-0399; FRL-10009-52-Region 2]
Approval of Air Quality Implementation Plans; New Jersey;
Gasoline Vapor Recovery Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
revision to the New Jersey State Implementation Plan (SIP) for the
ozone National Ambient Air Quality Standards which includes regulatory
amendment revisions relevant to the New Jersey Department of
Environmental Protection's requirements for Stage I and Stage II vapor
recovery systems at gasoline dispensing facilities. New Jersey's
comprehensive submittal also included changes in amendments for its air
permitting program and t-butyl acetate emission reporting requirements,
however, the EPA will be acting on these amendments under a separate
action.
DATES: The final rule is effective on July 20, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2019-0399. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
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 electronically through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Linda Longo, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866, (212) 637-3565, or by email at
longo.linda@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. The EPA's Evaluation of New Jersey's Submittals
III. Comments Received in Response to the EPA's Proposed Action
IV. Summary of the EPA Final Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background
The EPA is approving a revision to the State of New Jersey's (the
State) SIP for attainment and maintenance of the ozone National Ambient
Air Quality Standards (NAAQS). On November 26, 2019 (84 FR 65063), the
EPA proposed to approve the State's November 29, 2017, SIP revision,
which consists of amendments to the New Jersey Administrative Code
(N.J.A.C.) 7:27-16.3, ``Gasoline Transfer Operations'' (the Rule).
Under these amendments, certain gasoline dispensing facilities (GDFs)
must make upgrades to Stage I gasoline vapor controls and decommission
Stage II gasoline vapor systems. Under the Rule, Stage I controls are
required for tank breathing and refueling systems, with some exceptions
for single-point vapor balance systems and rotatable adapters. The Rule
allows GDFs with Stage I controls one year to install a California Air
Resources Board-certified Stage I enhanced vapor recovery pressure/
vacuum relief vent valve and seven years to comply with the remaining
equipment requirements. The Rule requires GDFs with existing Stage II
systems that are incompatible with onboard refueling vapor recovery
(ORVR) systems to be decommissioned on or before December 23, 2020,
with a demonstration that such removal is consistent with the Clean Air
Act and the EPA Guidance.
Under Clean Air Act (CAA) section 202(a)(6), Congress provided
authority to the EPA to allow states to remove (e.g., decommission)
Stage II vapor recovery programs from their SIPs, through a SIP
revision, after the EPA finds that ORVR systems are in widespread use
throughout the motor vehicle fleet nationwide. On May 16, 2012, the EPA
determined that ORVR systems are in widespread use nationwide for
control of gasoline emissions during refueling of vehicles at GDFs. See
77 FR 28772 (May 16, 2012) (Widespread Use Rule). On August 7, 2012,
EPA issued policy and technical guidance, Guidance on Removing Stage II
Gasoline Refueling Vapor Recovery from State Implementation Plans and
Assessing Comparable Measures, to provide information and tools for
states to use to develop Stage II program phase-out plans and to
address the separate ``comparable measures'' requirement in CAA section
184(b)(2) that applies to states located in the Ozone Transport Region
(OTR), such as New Jersey (EPA Guidance).\1\
---------------------------------------------------------------------------
\1\ EPA. 2012. ``Guidance on Removing Stage II Gasoline
Refueling Vapor Recovery Programs from State Implementation Plans
and Assessing Comparable Measures,'' (``EPA Guidance''). See https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20120807_page_stage2_removal_guidance.pdf.
---------------------------------------------------------------------------
The Widespread Use Rule allowed, but did not require, states to
discontinue Stage II vapor recovery programs. States are free to allow
GDFs to continue to use existing ORVR-compatible Stage II systems and
encouraged to ensure that facilities maintain the Stage II systems,
including compliance with required testing, to ensure proper working
order. New Jersey's Rule implements this recommendation and requires
the installation of enhanced conventional dripless nozzles and low
permeation
[[Page 36749]]
hoses as part of decommissioning or as maintenance of existing Stage II
systems.
II. The EPA's Evaluation of New Jersey's Submittals
The EPA's approval is based on the conclusion that the State's
November 29, 2017, SIP revision conforms with the EPA Guidance by
demonstrating widespread use of the ORVR-equipped vehicles in the
State's vehicle fleet and that the Rule would reduce emissions of
gasoline vapors thereby reducing emissions of volatile organic
compounds (VOC). The EPA has determined the following: (1) The State
has demonstrated that decommissioning Stage II systems would not lead
to an increase in vehicle refueling emissions and would be consistent
with non-interference requirements under CAA section 110(l); (2) any
temporary emissions increase that may result from phasing out Stage II
controls during the years 2017 to 2021 would be de minimis thus, the
Rule satisfies the ``comparable measures'' requirement under CAA
section 184(b)(2); and (3) the compliance date for the requirement to
decommission Stage II Systems and remove the Stage II program from the
SIP is well within the de minimis crossover period, satisfying the
anti-backsliding requirements under CAA section 193. In this case, the
State's analysis showed that the widespread use crossover period is the
period between mid-2017 and mid-2021; this timeframe coincides with the
Rule's compliance date for decommissioning Stage II systems of ``on or
about December 23, 2020.'' For a detailed explanation and evaluation of
the SIP revision, refer to the proposed rulemaking. See 84 FR 65063,
November 26, 2019.
III. Comments Received in Response to the EPA's Proposed Action
In response to the EPA's November 26, 2019, proposed approval of
the revisions to the New Jersey SIP for the ozone NAAQS, which consists
of amendments to N.J.A.C. 7:27-16.3, ``Gasoline Transfer Operations,''
the EPA received two public comments from two anonymous commenters
during the 30-day public comment period. The EPA has evaluated the
comments, as discussed below, and has determined that New Jersey's SIP
revision addressing the ozone NAAQS is consistent with the CAA and,
therefore, the EPA is approving New Jersey's SIP revision. Following is
a summary of the comments and the EPA's response. The full text of the
comments may also be viewed under Docket ID Number EPA-R02-OAR-2019-
0399 on the http://www.regulations.gov website.
Comment: Although I agree with the action the EPA is taking here
more should be done to explain why New Jersey only evaluated five of
the 21 counties in the state. If New Jersey were to evaluate all 21
counties what changes would occur to the cross-over period? EPA should
evaluate all counties not just a small sample of the state. This is
especially important because the entire state of New Jersey is one
giant non-attainment area and has been for decades. Knowing when
exactly the cross-over period happens in the entire state would
maximize the benefits of the remaining stage II GDFs while allowing the
state to remove the program responsibly.
Response: The EPA appreciates that the commenter does not object to
the EPA's proposed action to approve New Jersey's SIP. By approving the
current SIP revision, the EPA concludes that the State's use of a
representative sample of five counties (i.e., Essex, Middlesex, Camden,
Ocean, and Salem), instead of the total twenty-one counties that make
up the State of New Jersey, in its widespread use analysis is
consistent with the EPA Guidance which did not specify the quantity of
state-wide data needed to determine widespread use. The EPA believes
the State's estimate of the cross-over period (i.e., the time period
over which the benefits of the Stage II controls are outweighed by its
incompatibility with ORVR systems) would not meaningfully change if New
Jersey included any additional counties or all of the State's 21
counties in the analysis. For the reasons outlined below, the State's
selection of the five counties used in the analysis sufficiently
supports the State's proposed revisions to remove Stage II control
requirements from the State Implementation Plan.
As discussed in the proposed rulemaking, New Jersey's selection is
partially based on the results of the State-administered statewide
survey of GDF in 2014 that found the five counties to be representative
and cover a wide geographic cross-section of the State. The New Jersey
Department of Environmental Protection (NJDEP) analyzed vehicle
refueling data ``for the years 2014 and 2018, for the five counties,
which represent urban and rural areas of NJ, in both of New Jersey's
ozone nonattainment areas. The various vehicle mixes in these counties
cover the range of ORVR-equipped vehicle fractions in the New Jersey
fleet.'' \2\ The State deemed the five counties used in the analysis to
cover vehicle use patterns for restricted and unrestricted access road
types (e.g., express roadways and side roads) within the State. They
also span rural, suburban, and urban ozone non-attainment areas;
coastal and inland areas; and the major directional regions of the
State.
---------------------------------------------------------------------------
\2\ Email correspondence from NJDEP dated Jan. 8, 2020, on file
with EPA.
---------------------------------------------------------------------------
The NJDEP found that ``. . . in Appendix A, the variation in the
crossover dates between the five counties is only 8-10 months, while
the variation in the crossover dates between the range of percentage of
vacuum assist throughput is over 3 years. Therefore, the variation due
to differences between counties is small compared to the variation due
to percentage of gasoline dispensed via vacuum assist versus balanced
systems. Extension of the analysis to additional counties would not
increase overall accuracy of the crossover date estimates because
crossover date accuracy is being driven by other inputs such as the
percentage of gasoline dispensed via vacuum assist versus balanced
systems.'' See, footnote 2. EPA is not aware of, and the commenter did
not assert or provide, any information suggesting that the State's
selection of the counties used in the analysis omits any area types or
any significant vehicle use patterns occurring in New Jersey.
Consequently, the EPA finds that the State's analysis is consistent
with EPA guidance and is acceptable.
As stated above, the State's widespread use analysis reveals that
the county-specific ORVR system-equipped vehicle turnover rates (i.e.,
the rate at which ORVR system-equipped vehicles are deployed) have very
little influence on the estimate of the cross-over period (on the order
of 2-4 months in this analysis).\3\ On the other hand, the State's
analysis shows that other factors of Equation 1 in the EPA Guidance,
which EPA suggests should be used to derive the cross-over period, have
a much greater effect on the cross-over period estimate. One such
factor is the difference between the gasoline throughput attributable
to ORVR vehicles versus that attributable to non-ORVR vehicles. The EPA
Guidance recommends that states use either of two vacuum-assist Stage
II in-use control efficiency (i.e., gasoline
[[Page 36750]]
throughput) scenarios \4\ in the widespread use analysis. For New
Jersey, depending on the scenario used, the cross-over period could
vary as much as 39-43 months, a level of variability that dwarfs the
influence of any variability due to the county-specific ORVR turnover
rate (in this case, 2-4 months). Despite the influence of in-use
control efficiency on the calculation of the cross-over period, the
State's ability to derive this information is limited. As long as such
high uncertainty remains for this factor, and other factors that
contribute more to the cross-over estimate, adding more counties to the
vehicle turnover analysis would not be insightful. Indeed, EPA
recognizes the difficulty in achieving accuracy of the in-use control
efficiency derivation, and the EPA Guidance's suggested methodology
provides the flexibility for states to account for this uncertainty.
---------------------------------------------------------------------------
\3\ New Jersey Department of Environmental Protection, Appendix
A Phase II SIP Equations 7-3-17, Crossover Summary tab.
\4\ New Jersey's analysis using the two Stage II in-use control
efficiency scenarios are outlined in the SIP revision Appendix A
Phase II SIP Equations 7-3-17 Cross-Over Summary, which is included
in the docket for this action. Although the EPA Guidance suggests a
60-75 percent Stage II in-use control efficiency when estimating the
ORVR-equipped fueling at Stage II pumps, the State chose a range of
30-70 percent, which would give a more conservative estimate of the
cross-over period. That is, when 29 and 71 percent of the GDFs are
fueling ORVR-equipped vehicles.
---------------------------------------------------------------------------
Ultimately, under the widespread use determination, the EPA reviews
SIP revisions on a case-by-case basis for compliance with the criteria
set forth in the CAA sections 110(l), 193 and 184(b)(2), with due
consideration of the submitting state's support for the values used in
its calculations and any related emissions inventory and/or air quality
analyses it presents. Here, the State has shown that its estimate of
the cross over period accords with the methods outlined in the EPA
Guidance and satisfies the referenced statutory requirements.
Comment: To encourage entities to both participate and follow the
proposed guidelines, a potential tax credit, or some form or credit for
the entity may want to be considered. If such an approach were to be
implemented, it would likely encourage the entities to participate in
the program as well as assist in their continuing to follow the
guidelines put forth by the proposed regulation.
Response: The EPA appreciates the suggestion of additional
incentives aimed at achieving higher compliance rates; however, the
actions proposed are outside the scope of the current rulemaking or
EPA's authority, which is to ensure that the State has the authority to
implement and enforce the rule proposed. Economic incentives are
matters for the State to consider if it chooses to do so. New Jersey
entities subject to the Rule, as approved into the SIP, are required to
comply with the provisions outlined therein regardless of whether
financial or other economic incentives exist. EPA believes that GDFs
are sufficiently motivated to comply with the Rule, because the State
has an inspection program and violations would result in penalty
assessments.
The State inspection program has stringent requirements to ensure
compliance under which only a licensed contractor is authorized to
decommission a Stage II system. Moreover, owners and operators of GDFs
must notify the State of any decommissioning activity 14 days prior to
a site's initiating any such activity.\5\ Additionally, within 14-days
after completion of the decommissioning, the GDF must provide the State
with an email notification of the completion of such work; the
completion notification is required to document the post-
decommissioning testing and demonstration of compliance with the
Petroleum Equipment Institute checklist. With the notification system,
State inspectors would have prior knowledge of when decommissioning
projects would take place in an area and would, therefore, also have
the opportunity to inspect the facility during any such decommissioning
activity to ensure compliance with the Rule. Roughly half of the
facilities in New Jersey have decommissioned their Stage II systems to
date. The deadline for decommissioning vacuum-assist Stage II is
December 23, 2020. GDF owners and operators have additional incentive
to complete decommissioning by the State's deadline, because it
overlaps the deadline for EMV chip requirements.\6\ The concurrent
deadlines allow many GDFs to reap the economic benefit of coordinating
dispenser replacements with other equipment upgrades necessary to meet
with the EMV chip requirements.
---------------------------------------------------------------------------
\5\ The owner or operator of the GDF must provide the State with
an email notification of any decommissioning activity.
\6\ The Europay, MasterCard, Visa (EMV) is a global standard for
chip-based debit and credit card transactions. See e.g., https://usa.visa.com/visa-everywhere/security/emv-at-the-pump.html (last
accessed 02/20/2019). The financial services corporations Visa and
Mastercard set a deadline by which automated fuel dispenser/pump
merchants processing payments through debit and credit cards with
the Mastercard and Visa brands would need to implement systems
necessary to read debit and credit cards equipped with EMV chips.
---------------------------------------------------------------------------
IV. Summary of the EPA Final Action
The EPA is approving the State of New Jersey's SIP revision dated
November 29, 2017, which includes the State's revised New Jersey
Administrative Code (N.J.A.C.) 7:27-16.3, ``Gasoline Transfer
Operations'', effective November 20, 2017. The EPA is approving this
SIP revision because it meets all applicable requirements of the CAA
and the EPA Guidance, and it will not interfere with any applicable
requirement concerning attainment of the NAAQS and reasonable further
progress or with any other applicable requirement of the CAA. As stated
in the proposed rulemaking (84 FR 65063, November 26, 2019), the EPA
finds that the State has demonstrated, through application of the
Incremental Equation 1, that removing Stage II will meet rate of
progress and reasonable further progress requirements and assist in
attainment demonstration and transportation conformity impacts related
to removing Stage II. The State's November 29, 2017, SIP revision is
approvable under CAA section 110(l) because VOC emissions increase that
may have occurred between the years 2017 to 2021 are too small to
interfere with attainment and rate of progress and reasonable further
progress towards attainment of ozone NAAQS. The State's SIP submission
also demonstrates that continuing a Stage II vapor recovery program
would have resulted in an increase in refueling emissions due to excess
emissions resulting from incompatibility between the ORVR and Stage II
systems. Preventing an increase in refueling emissions is consistent
with non-interference requirements of the CAA section 110(l).
The revision to the SIP also satisfies the ``comparable measures''
requirement of CAA section 184(b)(2), which requires OTR states
proposing to remove Stage II control programs to implement measures
that would achieve ``comparable,'' and not ``equivalent,'' reductions
to existing Stage II programs. As stated in the EPA Guidance, ``the
comparable measures requirement is satisfied if phasing out a Stage II
control program in a particular area is estimated to have no, or a de
minimis, incremental loss of area-wide emission control.'' \7\ In this
case, the State has demonstrated that any temporary emissions increase
resulting from phasing out of Stage II controls during the years 2017
to 2021 would be de minimis.
---------------------------------------------------------------------------
\7\ EPA Guidance, above, p. 6.
---------------------------------------------------------------------------
Finally, the State has satisfied the anti-backsliding requirements
of the
[[Page 36751]]
CAA section 193. The compliance date of on or about December 23, 2020,
for decommissioning Stage II systems and removal of the Stage II
program from the New Jersey SIP is well within the crossover period of
mid-2017 and mid-2021 timeframe.
V. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, we are incorporating by reference N.J.A.C. 7:27-16,
``Control and Prohibition of Air Pollution by Volatile Organic
Compounds'', regulations described in the amendments to 40 CFR part 52
set forth below. EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and at the
EPA Region 2 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the State Implementation Plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\8\
---------------------------------------------------------------------------
\8\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, 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, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
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 final 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) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 Clean Air Act; and
Does not provide the 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 and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 17, 2020. 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 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 22, 2020.
Peter Lopez,
Regional Administrator, Region 2.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart FF--New Jersey
0
2. In Sec. 52.1570, the table in paragraph (c) is amended by revising
the entry ``Title 7, Chapter 27, Subchapter 16'' to read as follows:
Sec. 52.1570 Identification of plan.
* * * * *
(c) * * *
[[Page 36752]]
EPA-Approved New Jersey State Regulations and Laws
----------------------------------------------------------------------------------------------------------------
State effective
State citation Title/subject date EPA approval date Comments
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Title 7, Chapter 27, Subchapter Control and November 20, 2017 June 18, 2020,
16. Prohibition of EPA approval
Air Pollution by finalized at
Volatile Organic [insert Federal
Compounds. Register
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2020-11712 Filed 6-17-20; 8:45 am]
BILLING CODE 6560-50-P