ENVIRONMENTAL QUALITY BOARD [25 PA. CODE CH. 129] Control of VOCs from Gasoline Dispensing Facilities (Stage II) [29 Pa.B. 1889] The Environmental Quality Board (Board) by this order amends § 129.82 (relating to control of VOCs from gasoline dispensing facilities (Stage II)) to read as set forth in Annex A. The revisions implement the recommendation of the Southwest Pennsylvania Ozone Stakeholders Working Group (Stakeholders).
The amendment will be submitted to the Environmental Protection Agency (EPA) as an amendment to the State Implementation Plan (SIP).
This notice is given under Board order at its meeting of December 15, 1998.
A. Effective Date
This amendment will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Terry Black, Chief, Regulation and Policy Development Section, Division of Compliance and Enforcement, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-1663; or M. Dukes Pepper, Jr., Assistant Director, Bureau of Regulatory Counsel, Office of Chief Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This amendment is available electronically through the Department of Environmental Protection (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This action is being taken under the authority of section 5 of the Air Pollution Control Act (act) (35 P. S. § 4005) which grants to the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background and Summary
This final-form regulation establishes controls of VOCs from gasoline dispensing facilities (Stage II) in the Pittsburgh Beaver Valley Ozone Nonattainment Area. This final-form regulation is one of four core emission reduction strategies recommended by the Southwest Pennsylvania Ozone Stakeholder Working Group as being necessary for attainment of the ozone standard. The four strategies are:
1. Minor changes to the proposed low enhanced motor vehicle emission inspection and maintenance program.
2. The second phase (55% reduction) of the Ozone Transport Commission NOx Memorandum of Understanding.
3. Clean gasoline proposal (Federal Reformulated Gasoline (RFG) or 7.8 Reid vapor pressure (RVP) gasoline).
4. Stage II vapor control requirements.
The Stakeholders specifically recommended the following schedule and throughput cutoff sizes for the implementation of the Stage II requirements:
1. By the end of the year 1998, Stage II must be put in place by all stations pumping an average of 120,000 gallons of gasoline per month (based on 1995/1996 sales).
2. By the end of the year 2000, Stage II must be put in place by all stations pumping an average of 90,000 gallons of gasoline per month (based upon 1995/1996 sales).
3. As of April 1, 1997, Stage II is required to be installed and operational by all newly constructed gasoline dispensing facilities.
4. As of April 1, 1997, Stage II is required to be installed and operational at the reopening of any gasoline dispensing facility which has been rebuilt or renovated, where tanks and associated piping have been substantially disturbed in the rebuilding or renovation process.
5. Stage II will no longer be required as of the year 2010 provided the Federal program to have vapor collection canisters on board each new vehicle is fully implemented.
This final rulemaking implements the Stakeholders recommendation, with the exception of the compliance date of December 31, 1998, for all existing stations pumping an average of 120,000 gallons per month. This date was changed to July 1, 1999, to afford facilities additional time to comply with this requirement following the Board's adoption of this final-form regulation. The Stakeholders' recommendation was contingent upon all safety-related questions surrounding Stage II and on-board recovery devices being addressed satisfactorily. The Department's investigation has identified no safety related problems surrounding the use of Stage II with onboard recovery devices. The California Air Resources Board performed tests in June and July 1997, to evaluate potential explosive conditions arising from use of Stage II on vehicles with Onboard Refueling Vapor Recovery (ORVR). The evaluation did not identify significant safety concerns. A preliminary report describing the results of the testing has been drafted and is available from the Department upon request.
The Department discussed the regulatory revisions, Stakeholders' recommendations and implementation schedule with the Air Quality Technical Advisory Committee (AQTAC). At its July 21, 1997, meeting, the AQTAC recommended adoption of the final-form regulation.
In the Preamble to the proposed rulemaking, the Department indicated that the authority and time frames recommended by the Stakeholders could not be adopted as a regulation because of the express language of section 6.7 of the act (35 P. S. § 4006.7). The Department indicated that it intended to seek a repeal of section 6.7 of the act to allow implementation of the Stakeholders' recommendation by regulation. The Department also specifically sought comments on implementation of the Stakeholders' recommendation. Since publication of the proposed rulemaking, section 6.7(a)--(g) of the act has been repealed. The Department now has the legal authority to implement the recommendations of the Stakeholders. This final-form regulation implements those recommendations, except for the compliance date described previously.
The revisions modify and clarify the existing Stage II regulatory requirements. The amendments to § 129.82 incorporate the throughput levels recommended by the Stakeholders. The Department has refined the Stakeholders recommendations to exempt facilities with very small throughputs (less than 10,000 gallons per month) as well as independent small business marketers with throughputs less than 50,000 gallons per month. This refinement makes the program consistent with the Stage II requirements already in place in the Philadelphia area. Subsection (d) provides that if the onboard canister refueling emissions control problem has been fully implemented by 2010, the Stage II systems will no longer be required. Finally, subsection (e) establishes the functional testing and certification requirements consistent with the EPA's regulations.
E. Summary of Comments and Responses on the Proposed Amendment
The Department received comments from four individuals and organizations. The commentators generally supported the proposed revision.
One commentator indicated that the proposed implementation schedule and the throughput cutoff sizes are not consistent with the Federal Clean Air Act (42 U.S.C.A. §§ 7401--7642) requirements and are in conflict with the act. These inconsistencies have been addressed by a revision of the act.
One commentator indicated that the Department does not have the legal authority to continue its present enforcement policy with respect to Stage II. The Department's exercise of enforcement discretion is appropriate under the provisions of the act. In addition, this final-form regulation will codify the enforcement policy that is presently being used to implement the Stage II requirements.
One commentator indicated that the Stakeholders did not recommend a de minimis level of 10,000 gallons per month for new or rebuilt facilities, and questioned the Department's inclusion of that limit in the proposed amendment. The 10,000 gallons per month de minimis level is consistent with the threshold level that has been in use in the Philadelphia area since 1992.
One commentator suggested that the requirements should not make both the owner and operator responsible for the installation and operation of the Stage II systems. The requirements should specify that the operator is responsible for assuring employe training, system maintenance and operation and an owner should not be held responsible unless the owner is also the operator. The Department believes that both the owner and operator should be responsible for the compliance status of an affected facility. This has been a component of the SIP-approved program in place in the Philadelphia area since 1992.
One commentator indicated that the final-form regulation should be modified to allow maintenance of records offsite with the provision that the records be made available to the Department within a reasonable time. For ease and effectiveness of enforcement, the Department believes that the appropriate records demonstrating maintenance and other compliance aspects should be maintained on the site.
One commentator indicated that the proposed regulation listed compliance dates which have expired. The final-form regulation implements the compliance dates recommended by the Stakeholders. The expired dates simply make the regulatory language consistent with the act provision applicable in the Philadelphia area since 1992.
One commentator supported the implementation of Stage II throughout this Commonwealth, not only in the moderate, serious and severe ozone nonattainment areas in this Commonwealth. Statewide implementation of Stage II will help to protect the public health of citizens as they refuel their cars. Because significant areas of this Commonwealth demonstrate attainment of the health related ozone air quality standard, the Department does not believe that Statewide implementation of Stage II is appropriate at this time.
One commentator believed that the Commonwealth should have required implementation of Stage II at affected facilities as is required by the existing regulation. Stage II was implemented in the Southeast Pennsylvania ozone nonattainment area in accordance with the existing regulations. Implementation of Stage II in other areas was deferred until it could be determined that the program was necessary for attainment of the ozone air quality standard. The Department will now require implementation of Stage II consistent with the recommendations of the Stakeholders.
One commentator indicated that 5 years was too long a time period between inspections for Stage II systems. The high rate of use of the systems may cause more rapid deterioration because the 5-year interval specified in the regulations relates to the completion of backpressure and leak and pressure decay tests. These tests, which are part of the EPA's functional testing requirements, relate primarily to the underground piping system components which are not so prone to damage or deterioration as the nozzles, boots and aboveground piping. The inspections of these visible components are to be more frequent, and defective equipment is to be removed from service.
One commentator indicated that the proposed provisions of § 129.82(d) and (d)(2) which make ''owners or operators, or both'' responsible for completion of testing of Stage II systems could be confusing. The commentator recommended that the Board explain and clarify who bears the ultimate responsibility for testing of the systems. The final-form regulation was revised to remove these detailed testing requirements. Stage II testing requirements in the regulation are provided for in section 6.7(h) of the act.
One commentator indicated that the requirements in the proposed § 129.82(d)(1) for completion of testing ''upon installation'' could be confusing. The commentator suggested that the Board clarify whether testing is to be required only on new installations or if the Board also intended the testing requirements to apply to existing facilities. These testing requirements have been removed from the final-form regulation. Stage II testing requirements are provided for in section 6.7 of the act.
One commentator indicated that the requirements in the proposed § 129.82(d)(2) specified that testing is to be conducted in accordance with the certification requirements in the EPA's Stage II enforcement and technical guidance documents. Section 129.82(d)(1)(iv) requires an ''air to liquid ratio test.'' The EPA guidance does not include an ''air to liquid ratio test.'' The commentator suggested that the Board explain how a facility would comply with the testing requirement. These testing requirements have been removed from the final-form regulation. Stage II testing requirements contained in the regulation are provided for in section 6.7(h) of the act.
One commentator indicated that although § 129.82 (d)(2) requires at least 48 hours advance notice of Stage II system testing, the proposed amendment did not specify who in the Department is to be notified. The commentator suggested that the Board should clarify in § 129.82(d)(2) exactly who in the Department is to be given the 48-hours advance notice of Stage II testing. These testing and notification requirements have been removed from the final-form regulation. Stage II testing requirements contained in the regulation are provided for in section 6.7(h) of the act.
One commentator indicated that § 129.82(d)(3) required Stage II system retesting upon major system replacement or modification. The commentator indicated that the regulation does not clearly specify what constitutes a major system replacement or modification and what constitutes a minor modification. The commentator requested that the Board explain how a facility can determine what replacements or modifications would subject the facility to requirements for retesting. These testing requirements have been removed from the final-form regulation. Stage II testing requirements contained in the regulation are provided for in section 6.7(h) of the act.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulation.
Benefits
The approximately 2.8 to 3 million people living in the seven counties affected by this final-form regulation will benefit from the reduced ozone levels which will result from implementation of the proposed revision. When ground-level ozone is present in concentrations in excess of the Federal health-based standard, public health is adversely affected. The EPA has concluded that there is an association between ambient ozone concentrations and increased hospital admissions for respiratory ailments, such as asthma. Further, 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 the symptoms are often temporary, repeated exposure can result in permanent lung damage.
The implementation of additional measures to address the ozone air quality nonattainment in Southwest Pennsylvania is necessary to protect the public health. Stage II gasoline vapor recovery is a part of the ozone reduction strategy developed by the Stakeholders.
Compliance Costs
Information developed by the Stakeholders indicates that the cost of gasoline may increase approximately 2 to 2.6¢ per gallon. Estimated annual gasoline sales in the southwest Pennsylvania area are slightly less than 1 billion gallons. Total cost to affected facilities is estimated to be approximately $25 million for implementation of the Stage II requirements. It is anticipated that the compliance costs associated with the Stage II requirements will be passed on to the consumer in increased gasoline costs.
Compliance Assistance Plan
The Department plans to educate and assist the public and the regulated community with understanding the newly revised requirements and how to comply with them. This will be accomplished through the Department's ongoing regional compliance assistance program. Two workshops were held for underground storage tank installers concerning the Stage II requirements and letters have been sent to station operators concerning the implementation schedule for Stage II in the Pittsburgh-Beaver Valley area.
Paperwork Requirements
Affected facilities will be required to maintain records of compliance testing and maintenance activities. Facilities claiming to be unaffected because of the low throughput volumes will be required to maintain records to demonstrate that they are unaffected.
G. Sunset Review
This final-form regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation 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 April 21, 1997, the Department submitted a copy of the proposed amendment to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.
In preparing this final-form regulation, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
This final-form regulation was deemed approved by the House Environmental Resources and Energy Committee and by the Senate Environmental Resources and Energy Committee on March 1, 1999. IRRC met on March 11, 1999, and approved the final-form regulation in accordance with section 5(c) of the Regulatory Review Act.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period and public hearings were provided as required by law, and all comments were considered.
(3) This regulation does not enlarge the purpose of the proposal published at 27 Pa.B. 2239 (May 3, 1997).
(4) This regulation is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Order and is reasonably necessary to achieve and maintain the National ambient air quality standards.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department of Environmental Protection, 25 Pa. Code Chapter 129, are amended by amending § 129.82 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 1682 (March 27, 1999).)
Fiscal Note: Fiscal Note 7-320 remains valid for the final adoption of the subject regulation.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE III. AIR RESOURCES CHAPTER 129. STANDARDS FOR SOURCES MOBILE SOURCES § 129.82. Control of VOCs from gasoline dispensing facilities (Stage II).
(a) After the date specified in paragraph (1), (2) or (3), an owner or operator of a gasoline dispensing facility subject to this section may not transfer or allow the transfer of gasoline into a motor vehicle fuel tank unless the dispensing facility is equipped with a Department approved and properly operating Stage II vapor recovery or vapor collection system. Unless a higher percent reduction is required by the EPA under section 182 of the Clean Air Act (42 U.S.C.A. § 7511a), approval by the Department of a Stage II vapor collection system will be based on a determination that the system will collect at least 90% by weight, of the gasoline vapors that are displaced or drawn from a vehicle fuel tank during refueling and the captured vapors are returned to a vapor tight holding system or vapor control system.
(1) This paragraph applies to gasoline dispensing facilities located in areas classified as moderate, serious or severe ozone nonattainment areas under section 181 of the Clean Air Act (42 U.S.C.A. § 7511) including the counties of Berks, Bucks, Chester, Delaware, Montgomery, Philadelphia with monthly throughputs greater than 10,000 gallons (37,850 liters). In the case of independent small business marketers of gasoline as defined in section 325 of the Clean Air Act (42 U.S.C.A. § 7625a), this section shall not apply if the monthly throughput is less than 50,000 gallons (189,250 liters).
(i) Facilities for which construction was commenced after November 15, 1990, shall achieve compliance by May 15, 1993.
(ii) Facilities which dispense greater than 100,000 gallons (378,500 liters) of gasoline per month, based on average monthly sales for the 2-year period immediately preceding November 15, 1992, shall achieve compliance by November 15, 1993.
(iii) Other affected facilities shall achieve compliance by November 15, 1994.
(2) Gasoline dispensing facilities with annual throughputs greater than 10,000 gallons (37,850 liters) in the counties of Bucks, Chester, Delaware, Montgomery and Philadelphia shall be subject to this section immediately upon the addition or replacement of one or more underground gasoline storage tanks for which construction was commenced after November 15, 1992.
(3) This paragraph applies to gasoline dispensing facilities located in the counties of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland with monthly throughputs greater than 10,000 gallons (37,850 liters). In the case of independent small business marketers of gasoline as defined in section 325 of the Clean Air Act (42 U.S.C.A. § 7625a), this section does not apply if the monthly throughput is less than 50,000 gallons (189,250 liters).
(i) Facilities for which construction was commenced after April 1, 1997, shall achieve compliance at the time of opening of the gasoline dispensing facility.
(ii) Facilities which dispense greater than or equal to 120,000 gallons (454,200 liters) of gasoline per month, based on average monthly sales during calendar years 1995 and 1996, shall achieve compliance by July 1, 1999.
(iii) Facilities which dispense greater than 90,000 gallons (340,650 liters) per month but less than 120,000 gallons (454,200 liters) per month based on average monthly sales during calendar years 1995 and 1996 shall achieve compliance by December 31, 2000.
(4) For purposes of this section, the term ''construction'' includes, but is not limited to, the addition or replacement of one or more underground gasoline storage tanks.
(b) Owners or operators, or both, of gasoline dispensing facilities subject to this section shall:
(1) Install necessary Stage II vapor collection and control systems, provide necessary maintenance and make modifications necessary to comply with the requirements.
(2) Provide adequate training and written instructions to the operator of the affected gasoline dispensing facility to assure proper operation of the system.
(3) Immediately remove from service and tag any defective nozzle or dispensing system until the defective component is replaced or repaired. A component removed from service may not be returned to service until the defect is corrected. If the Department finds that a defective nozzle or dispensing system is not properly tagged during an inspection, the component may not be returned to service until the defect is corrected, and the Department approves its return to service.
(4) Conspicuously postoperating instructions for the system in the gasoline dispensing area which, at a minimum, include:
(i) A clear description of how to correctly dispense gasoline with the vapor recovery nozzles utilized at the site.
(ii) A warning that continued attempts to dispense gasoline after the system indicates that the vehicle fuel tank is full may result in spillage or recirculation of the gasoline into the vapor collection system.
(iii) A telephone number established by the Department for the public to report problems experienced with the system.
(5) Maintain records of system test results, monthly throughput, type and duration of any failures of the system and maintenance and repair records on the premises of the affected gasoline dispensing facility. The records shall be kept for at least 2 years and shall be made available for inspection, upon request, by the Department.
(c) If an area is reclassified from attainment or marginal nonattainment to serious, nonattainment under section 181 of the Clean Air Act, gasoline dispensing facilities located in the reclassified area will be subject to subsection (a)(1). For purposes of establishing an effecting date for the reclassified area, the date of the Federal Register final notice of the reclassification shall serve as the date of publication of this subsection as final in the Pennsylvania Bulletin.
(d) If an onboard canister refueling emissions control program has been fully implemented by the EPA by December 31, 2010, the operation and maintenance of Department-approved Stage II systems will no longer be required in the counties of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland.
(e) The owners or operators of gasoline dispensing facilities shall comply with the functional testing and certification requirements specified in EPA's Stage II Enforcement and Technical Guidance Documents developed under section 182 of the Clean Air Act to meet the Clean Air Act requirements.
[Pa.B. Doc. No. 99-584. Filed for public inspection April 9, 1999, 9:00 a.m.]
