[25 PA. CODE CH. 130] Portable Fuel Containers [31 Pa.B. 6185] The Environmental Quality Board (Board) proposes to establish Chapter 130 (relating to standards for products) to read as set forth in Annex A.
Subchapter A (relating to portable fuel containers) will apply to persons who sell, supply, offer for sale or manufacture for sale in this Commonwealth portable fuel containers or spouts or both and portable fuel containers and spouts, for use in this Commonwealth. Subchapter A will also add definitions for terms to be used in the substantive provisions of the chapter.
This notice is given under Board order at its meeting of September 18, 2001.
A. Effective Date
This proposed rulemaking will be effective upon publication in the Pennsylvania Bulletin as a final-form rulemaking.
B. Contact Persons
For further information, contact Terry Black, Chief, Regulation and Policy Development Section, Division of Air Resource Management, Bureau of Air Quality, Rachel Carson State Office Building, 12th Floor, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-1663; or Bo Reiley, Assistant Counsel, Bureau of Regulatory Counsel, Office of Chief Counsel, Rachel Carson State Office Building, 9th Floor, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
C. Statutory Authority
This proposed rulemaking is being made under the authority of section 5 of the Air Pollution Control Act (35 P. S. § 4005) which grants the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background
When ground-level ozone is present in concentrations in excess of the Federal health-based standard, public health is adversely affected. The United States Environmental Protection Agency (EPA) has concluded that there is an association between ambient ozone concentrations and increased hospital admissions for respiratory ailments, such as asthma. Although children, the elderly and those with respiratory problems are most at risk, even healthy individuals may experience increased respiratory ailments and other symptoms when they are exposed to ambient ozone while engaged in activity that involves physical exertion. Though these symptoms are often temporary, repeated exposure could result in permanent lung damage. The implementation of additional measures to address ozone air quality nonattainment in this Commonwealth is necessary to protect the public health.
The purpose of this proposed rulemaking is to reduce the volatile organic compounds (VOCs) emitted from portable fuel containers. This proposed rulemaking is part of the Commonwealth's specific action plan to achieve and maintain the ozone National Ambient Air Quality Standard in this Commonwealth.
A number of northeastern states have also committed to developing regulations designed to reduce the amount of VOCs emitted into the environment from portable fuel containers. It is anticipated that once these states, together with California, have adopted these regulations, they will have the effect of being a ''de facto'' National rule.
In addition to reducing VOC emissions, the proposed rulemaking will also reduce public exposure to hazardous constituents present in gasoline such as benzene. Benzene is a toxic air contaminant and a known human carcinogen. Although the risk reductions have not been quantified, it is assumed that the spill-proof features and permeation requirement would significantly reduce benzene emissions.
This proposed rulemaking would also improve water quality aquifers, lakes and rivers. It would greatly reduce the amount of gasoline spilled onto the ground while refueling lawn, garden and small construction equipment and other machines with small gasoline engines. Many marine pleasure craft, especially personal watercrafts, are refueled using portable containers, and the threat of fuel spillage during onwater refueling is always present. The spill-proof systems would allow users of pleasure craft to refuel their engines without fuel spillage; this would eliminate the potential discharge of fuel into the aquatic environment from these activities.
This proposed rulemaking applies to all portable fuel containers or spouts, or both, except: 1) containers with capacity of less than or equal to 1 quart; 2) rapid refueling devices with capacities equal to or greater than 4 gallons, provided they are designed for use in officially sanctioned off-road motorcycle competitions; and 3) safety cans and portable marine fuel tanks that operate in conjunction with outboard motors.
Portable fuel containers or spouts, or both, must be equipped with an automatic shut-off device that stops fuel flow before the fuel tank overflows and an automatic device that closes and seals when it is removed from the fuel tank. There are also other required design specifications, all of which are intended to significantly lessen the possibility of gasoline spillage and reduce emissions.
Compliance with the proposed performance standards are designed to maximize VOC emission reductions. It is estimated that VOCs would be reduced by approximately 75% of total uncontrolled emissions from this sector once the rule is finalized.
The major implementation issues are consumer acceptance and the long life of these containers. These containers will look and operate somewhat differently than those currently on the market. However, based on experiences to date, manufacturers have indicated that consumers prefer the new product after becoming familiar with it. The Commonwealth, through the Ozone Transport Commission (OTC), has worked with manufacturers of these containers, and manufacturers have indicated that they would be able to provide the products to the market by 2003.
The Department of Environmental Protection (Department) worked with the Air Quality Technical Advisory Committee (AQTAC) in the development of this proposed rulemaking. At its May 24, 2001, meeting, AQTAC recommended adoption of the proposed rulemaking. AQTAC also recommended that the Department continue aggressive efforts with other states to support National standards for these products.
E. Summary of Regulatory Requirements
The proposed addition of Chapter 130 includes definitions of terms and substantive provisions as well. The definitions in § 130.102 (relating to definitions) include ''ASTM,'' ''nominal capacity,'' ''outboard engine,'' ''permeation,'' ''portable fuel container,'' ''product category,'' ''spill-proof spout,'' ''spill-proof system,'' ''spout'' and ''target fuel tank.''
The substantive provisions of Chapter 130 include under § 103.101 (relating to applicability) requirements and a cross reference to Department of Labor and Industry requirements related to portable fuel containers. Section 130.103 (relating to performance standards for portable fuel containers and spill-proof spouts) includes, among other things, automatic shut-off spouts that stop fuel flow before the tank overflows. Section 130.104 (relating to exemptions) provides exemptions for portable fuel containers and spouts manufactured for sale and use outside of this Commonwealth. Innovative products exemptions are provided for in § 130.105 (relating to innovative products) to encourage the design and manufacture of products that will result in cumulative VOC emissions below those types of containers currently in the market. Section 130.106 (relating to administrative requirements) provides for recordkeeping and labeling. Under § 130.107 (relating to variances), a person or manufacturer that cannot comply with Chapter 130 due to extraordinary circumstances beyond that person's reasonable control may request a variance. Test procedures to determine if performance standards for portable fuel containers and spouts have been met are specified in § 130.108 (relating to test procedures).
These regulatory provisions, if approved, will be submitted to the Environmental Protection Agency (EPA) as an amendment to the State Implementation Plan (SIP).
F. Benefits and Costs
Executive Order 1996-1 requires a cost/benefit analysis of the proposed regulations.
Benefits
Overall, the citizens of this Commonwealth will benefit from these required changes because they will result in improved air quality by reducing ozone precursor emissions and encourage new technologies and practices, which reduce emissions. Moreover, it is also anticipated that adoption of this rulemaking will save consumers money because it will result in reduced evaporative loss from gasoline.
Compliance Costs
Manufacturers indicate that the requirements may add an additional $6 to $10 to the cost of containers. Cost to residents of this Commonwealth is estimated to be approximately $3 million annually with an estimated VOC emission reduction to be approximately 7,500 tons per year. If the value of the emission reductions of gasoline saved is factored in, the net cost to citizens of this Commonwealth will be reduced to be approximately $500,000.
Compliance Assistance Plan
The Department will continue to work with the other states in the northeast, with the OTC and with the National product manufacturers to ensure their understanding of the requirements. In addition, the Department is exploring opportunities for partnering with organizations to facilitate the transition to the new products.
Paperwork Requirements
The regulatory revisions will not increase the paperwork that is already generated during the normal course of business operations.
G. Sunset Review
This rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether it effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 26, 2001, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposal, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days following the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for the Department, the Governor and the General Assembly to review these objections prior to final publication of the amendments.
I. Public Comments.
Written comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by January 16, 2002. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by January 16, 2002. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final-form rulemaking will be considered.
Electronic comments--Comments may be submitted electronically to the Board at RegComments@dep.state.pa.us. A subject heading of the proposal and return name and address must be included in each transmission. Comments submitted electronically must also be received by the Board by January 16, 2002.
J. Public Hearings
The Board will hold three public hearings for the purpose of accepting comments on this proposal. The hearings will be held at 1 p.m. as follows:
December 11, 2001, Department of Environmental Protection, Southwest Regional Office, 400 Waterfront Drive, Pittsburgh, PA.
December 13, 2001, Department of Environmental Protection, Southcentral Regional Office, 909 Elmerton Avenue, Harrisburg, PA.
December 17, 2001, Department of Environmental Protection, Southeast Regional Office, Suite 6010, Lee Park, 555 North Lane, Conshohocken, PA.
Persons wishing to present testimony at a hearing are requested to contact Debra Failor at the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
Persons with a disability who wish to attend the hearing and require an auxiliary aide, service or other accommodation to participate should contact Debra Failor at (717) 787-4526, or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.
DAVID E. HESS,
ChairpersonFiscal Note: 7-369. No fiscal impact; (8) recommends adoption.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE III. AIR RESOURCES CHAPTER 130. STANDARDS FOR PRODUCTS Subchapter A. PORTABLE FUEL CONTAINERS Sec.
130.101. Applicability. 130.102. Definitions. 130.103. Performance standards for portable fuel containers and spill-proof spouts. 130.104. Exemptions. 130.105. Innovative products. 130.106. Administrative requirements. 130.107. Variances. 130.108. Test procedures. § 130.101. Applicability.
Except as provided in § 130.104 (relating to exemptions), this article applies to a person who sells, supplies, offers for sale, or manufactures for sale in this Commonwealth portable fuel containers or spouts or both portable fuel containers and spouts for use in this Commonwealth. For additional requirements, see section 7 of the Combustible and Flammable Liquids Act (35 P. S. § 1247(c)) and 37 Pa. Code § 11.7 (relating to container construction).
§ 130.102. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
ASTM--The American Society for Testing and Materials.
Nominal capacity--The volume indicated by the manufacturer that represents the maximum recommended filling level.
Outboard engine--A spark-ignition marine engine that, when properly mounted on a marine watercraft in the position to operate, houses the engine and drive unit external to the hull of the marine watercraft.
Permeation--The process by which individual fuel molecules may penetrate the walls and various assembly components of a portable fuel container directly to the outside ambient air.
Portable fuel container--A container or vessel with a nominal capacity of 10 gallons or less intended for reuse that is designed or used primarily for receiving, transporting, storing and dispensing fuel.
Product category--The applicable category that best describes the product with respect to its nominal capacity, material construction, fuel flow rate and permeation rate, as applicable, as determined by the Commonwealth.
Spill-proof spout--A spout that complies with the performance standards specified in § 130.103(b) (relating to performance standards for portable fuel containers and spill-proof spouts).
Spill-proof system--A configuration of portable fuel container and firmly attached spout that complies with all of the performance standards in § 130.103(a).
Spout--A device that can be firmly attached to a portable fuel container for conducting pouring through which the contents of a portable fuel container can be dispensed.
Target fuel tank--A receptacle that receives fuel from a portable fuel container.
§ 130.103. Performance standards for portable fuel containers and spill-proof spouts.
(a) Except as provided in § 130.104 (relating to exemptions), a person may not sell, supply, offer for sale or manufacture for sale in this Commonwealth on or after January 1, 2003, a portable fuel container or spout, or a portable fuel container and spout which, at the time of sale or manufacture, does not meet the following performance standards for spill-proof systems:
(1) Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.
(2) Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.
(3) Has only one opening for both filling and pouring.
(4) Provides a fuel flow rate and fill level of one of the following:
(i) At least 1/2 gallon per minute for portable fuel containers with a nominal capacity of:
(A) Less than or equal to 1.5 gallons and fills to a level less than or equal to 1 inch below the top of the target fuel tank opening.
(B) Greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1 inch below the top of the target fuel tank opening if the spill-proof system clearly displays the phrase ''Low Flow Rate'' in type of 34 point or greater on each spill-proof system or label affixed thereto, and on an accompanying package.
(ii) At least 1 gallon per minute for portable fuel containers with a nominal capacity greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1.25 inches below the top of the target fuel tank opening.
(iii) At least 2 gallons per minute for portable fuel containers with a nominal capacity greater than 2.5 gallons.
(5) Does not exceed a permeation rate of 0.4 grams per gallon per day.
(6) Is warranted by the manufacturer for at least 1 year against defects in materials and workmanship.
(b) Except as provided in § 130.104, a person may not sell, supply, offer for sale or manufacture for sale in this Commonwealth on or after January 1, 2003, a spout which, at the time of sale or manufacture, does not meet the following performance standards for spill-proof spouts:
(1) Has an automatic shut-off that stops the fuel flow before the target fuel tank overflows.
(2) Automatically closes and seals when removed from the target fuel tank and remains completely closed when not dispensing fuel.
(3) Provides a fuel flow rate and fill level of one of the following:
(i) At least 1/2 gallon per minute for portable fuel containers with a nominal capacity of one of the following:
(A) Less than or equal to 1.5 gallons and fills to a level less than or equal to 1 inch below the top of the target fuel tank opening.
(B) Greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1 inch below the top of the target fuel tank opening if the spill-proof spout clearly displays the phrase ''Low Flow Rate'' in type of 34 point or greater on an accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto.
(ii) At least 1 gallon per minute for portable fuel containers with a nominal capacity greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less than or equal to 1.25 inches below the top of the target fuel tank opening.
(iii) At least 2 gallons per minute for portable fuel containers with a nominal capacity greater than 2.5 gallons.
(4) Is warranted by the manufacturer for at least 1 year against defects in materials and workmanship.
(c) The test procedures for determining compliance with the performance standards in this section are set forth in § 130.108 (relating to test procedures). The manufacturer of portable fuel containers or spouts or both portable fuel containers and spouts shall perform the tests for determining compliance as set forth in § 130.108 to show that its product meets the performance standards of this section prior to allowing the product to be offered for sale in this Commonwealth. The manufacturer shall maintain records of these compliance tests for as long as the product is available for sale in this Commonwealth and make those test results available to the Department within 60 days of request.
(d) Notwithstanding subsections (a) and (b), a portable fuel container or spout or both portable fuel container and spout manufactured before January 1, 2003, may be sold, supplied or offered for sale until January 1, 2004, if the date of manufacture or a date code representing the date of manufacture is clearly displayed on the portable fuel container or spout.
§ 130.104. Exemptions.
(a) This subchapter does not apply to a portable fuel container or spout or both portable fuel container and spout manufactured in this Commonwealth for shipment, sale and use outside of this Commonwealth.
(b) This subchapter does not apply to a manufacturer or distributor who sells, supplies or offers for sale in this Commonwealth a portable fuel container or spout or both portable fuel container and spout that does not comply with the performance standards specified in § 130.103 (relating to performance standards for portable fuel containers and spill-proof spouts), if the manufacturer or distributor can demonstrate the following:
(1) The portable fuel container or spout or both portable fuel container and spout is intended for shipment and use outside of this Commonwealth.
(2) The manufacturer or distributor has taken reasonable prudent precautions to assure that the portable fuel container or spout or both portable fuel container and spout is not distributed in this Commonwealth.
(c) This subchapter does not apply to portable fuel containers with a nominal capacity less than or equal to 1 quart.
(d) This subchapter does not apply to rapid refueling devices, with nominal capacities greater than or equal to 4 gallons, provided the devices are designed for use in officially sanctioned off-highway motorcycle competitions, or either create a leak-proof seal against a stock target fuel tank or are designed to operate in conjunction with a receiver permanently installed on the target fuel tank.
(e) This subchapter does not apply to portable fuel tanks manufactured specifically to deliver fuel through a hose attached between the portable fuel tank and the outboard engine for the purpose of operating the outboard engine.
§ 130.105. Innovative products.
The Department may exempt a portable fuel container or spout or both portable fuel container and spout from one or more of the requirements of § 130.103 (relating to performance standards for portable fuel containers and spill-proof spouts) if a manufacturer demonstrates to the satisfaction of the Department that, due to the product's design, delivery system or other factors, the use of the product will result in cumulative VOC emissions below the highest emitting representative spill-proof system or representative spill-proof spout in its product category as determined from applicable testing.
(1) An applicant shall apply in writing to the Commowealth for an innovative product exemption claimed under this section. The application shall include the supporting documentation that quantifies the emissions from the innovative product, including the actual physical test methods used to generate the data. In addition, the applicant shall provide information necessary to enable the Department to establish enforceable conditions for granting the exemption.
(2) For a portable fuel container or spout or both portable fuel container and spout for which an innovative product exemption has been granted under this section, the applicant shall notify the Department in writing at least 30 days before the applicant changes a product's design, delivery system or other factors that may effect the VOC emissions during recommended usage. The applicant shall also notify the Department within 30 days after the applicant learns of information that would alter the emissions estimates submitted to the Department in support of the exemption application.
(3) If the performance standards specified in § 130.103 are amended for a product category, all innovative product exemptions granted for products in the product category, except as provided in this section, have no force and effect as of the effective date of the amended performance standards.
(4) If the Department believes that a portable fuel container or spout or both portable fuel container and spout for which an exemption has been granted no longer meets the criteria for an innovative product specified in this section, the Department may revoke or modify the exemption.
§ 130.106. Administrative requirements.
(a) Each manufacturer of a portable fuel container or spout or both portable fuel container and spout subject to and complying with § 130.103(a) (relating to performance standards for portable fuel containers and spill-proof spouts) shall clearly display the following on each spill-proof system:
(1) The phrase ''Spill-Proof System.''
(2) A date of manufacture or representative date.
(3) A representative code identifying the portable fuel container or portable fuel container and spout as subject to and complying with § 130.103(a).
(b) Each manufacturer of a spout subject to and complying with § 130.103(b) shall clearly display the following on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout or a label affixed thereto:
(1) The phrase ''Spill-Proof Spout.''
(2) A date of manufacture or representative date.
(3) A representative code identifying the spout as subject to and complying with § 130.103(b).
(c) Each manufacturer subject to subsection (a) or (b) shall clearly display a fuel flow rate on each spill-proof system or spill-proof spout, or label affixed thereto, and on an accompanying package.
(d) Each manufacturer of a spout subject to subsection (b) shall clearly display the make, model number and size of only those portable fuel containers the spout is designed to accommodate and can demonstrate compliance with § 130.103(a) on the accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proof spout, or a label affixed thereto.
(e) Each manufacturer of a portable fuel container or spout or both portable fuel container and spout subject to and complying with § 130.103 that, due to its design or other features cannot be used to refuel one or more on-road motor vehicles, shall clearly display the phrase ''Not Intended For Refueling On-Road Motor Vehicles'' in type of 34 point or greater.
§ 130.107. Variances.
(a) A person or manufacturer who cannot comply with § 130.103 (relating to performance standards for portable fuel containers and spill-proof spouts), due to extraordinary reasons beyond the person's reasonable control, may apply in writing to the Department for a variance. The variance application shall include the following:
(1) The specific grounds upon which the variance is sought.
(2) The proposed dates by which compliance with § 130.103 will be achieved.
(3) A compliance report detailing the methods by which compliance will be achieved.
(b) A variance shall cease to be effective upon failure of the party to whom the variance was granted to comply with a term or condition of the variance.
(c) Upon the application of a person, the Department may review and modify or revoke a variance from § 130.103.
§ 130.108. Test procedures.
(a) Testing to determine compliance with § 130.103(b) (relating to performance standards for portable fuel containers and spill-proof spouts) shall be performed by using the following test procedures:
(1) ''Test Method 510, Automatic Shut-Off Test Procedure For Spill-Proof Systems and Spill-Proof Spouts,'' adopted by CARB on July 6, 2000, which is incorporated herein by reference.
(2) ''Test Method 511, Automatic Closure Test Procedure For Spill-Proof Systems And Spill-Proof Spouts,'' adopted by CARB on July 6, 2000, which is incorporated herein by reference.
(3) ''Test Method 512, Determination Of Fuel Flow Rate For Spill-Proof Systems and Spill-Proof Spouts,'' adopted by CARB on July 6, 2000, which is incorporated herein by reference.
(b) Testing to determine compliance with § 130.103(a) shall be performed by using all test procedures in subsection (a) and ''Test Method 513, Determination Of Permeation Rate For Spill-Proof Systems,'' adopted by CARB on July 6, 2000, which is incorporated herein by reference.
[Pa.B. Doc. No. 01-2014. Filed for public inspection November 9, 2001, 9:00 a.m.]
