Standards of Performance for Bulk Gasoline Terminals and National
Emission Standards for Gasoline Distribution Facilities (Bulk Gasoline
Terminals and Pipeline Breakout Stations)
[Federal Register: December 19, 2003 (Volume 68, Number 244)]
[Rules and Regulations]
[Page 70959-70966]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de03-15]
[[Page 70960]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60 and 63
[OAR-2002-0029, FRL-7599-9]
RIN 2060-AJ42
Standards of Performance for Bulk Gasoline Terminals and National
Emission Standards for Gasoline Distribution Facilities (Bulk Gasoline
Terminals and Pipeline Breakout Stations)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On August 18, 1983, we promulgated Standards of Performance
for Bulk Gasoline Terminals (48 FR 37590). The 1983 standards of
performance limit and control emissions of volatile organic compounds
(VOC) that react with other pollutants to form ozone (or smog) which
has been linked to respiratory impairment and eye irritation, and
negatively affects vegetation and ecosystems. On December 14, 1994, we
promulgated National Emission Standards for Gasoline Distribution
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (59
FR 64318). The 1994 national emission standards limit and control
hazardous air pollutants (HAP) that are known or suspected to cause
cancer or have other serious health or environmental effects.
On September 20, 2002, we proposed amendments to the 1983 standards
of performance and 1994 national emission standards to provide for the
use of alternative leak test procedures for railcars under the 1994
national emission standards, a clarification on monitoring flares and
thermal oxidation systems used to comply with the 1994 national
emission standards, alternative recordkeeping requirements for tank
trucks and railcars under the 1983 standards of performance and 1994
national emission standards, and the use of flare design specifications
under the 1983 standards of performance by incorporating the allowance
in the text of that final rule. This document takes final action on
those proposed amendments. The amendments do not change the level of
control or compromise the environmental protection achieved by the 1983
standards of performance and 1994 national emission standards, but
provide clarification and alternatives that enhance the flexibility of
the recordkeeping and testing requirements of the two final rules.
DATES: This rule is effective December 19, 2003. The incorporation by
reference of certain publications listed in today's final amendments is
approved by the Director of the Federal Register as of December 19,
2003.
ADDRESSES: Docket Nos. OAR-2002-0029 and A-92-38 contain supporting
information used in developing the standards. The docket is located at
the EPA Docket Center (Air Docket), Public Reading Room, Room B102, EPA
West Building, 1301 Constitution Avenue, NW., Washington, DC, and may
be inspected from 8:30 a.m. to 4:30 p.m., Monday through Friday, except
for legal holidays.
FOR FURTHER INFORMATION CONTACT: For further information concerning
applicability to a facility, contact the appropriate State or local
agency representative. If no State or local agency representative is
available, contact the appropriate EPA Regional Office Director listed
in 40 CFR 63.13. For further information on compliance issues, contact
Ms. Julie Tankersley, U.S. EPA, Office of Enforcement and Compliance
Assurance, 2223A, Ariel Rios Building, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, telephone (202) 564-7002, electronic mail (e-
mail) address: tankersley.julie@epa.gov. For further information
concerning analyses performed in the development of the final
amendments, contact Mr. Stephen Shedd, U.S. EPA, OAQPS, Emission
Standards Division, Waste and Chemical Processes Group (C439-03),
Research Triangle Park, North Carolina 27711, telephone (919) 541-5397,
facsimile number (919) 685-3195, electronic mail (e-mail) address:
shedd.steve@epa.gov.
SUPPLEMENTARY INFORMATION:
Regulated entities. The regulated categories and entities affected
by this action include:
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Examples of
Category NAICS\a\ (SIC\b\) regulated
entities
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Industry..................... 324110 (2911) Operations at
493190 (4226) major sources
486910 (4613) that transfer
422710 (5171) and store
gasoline,
including
petroleum
refineries,
pipeline
breakout
stations, and
bulk
terminals.
Federal/State/local/tribal
governments .
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\a\ North American Industry Classification System.
\b\ Standard Industrial Classification.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility would be regulated by this
action, you should examine the applicability criteria in 40 CFR 60.500
and 40 CFR 63.420. If you have any questions regarding the
applicability of this action to a particular entity, consult either the
air permit authority for the entity or the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Docket. We have established an official public docket for this
action under Docket ID Nos. A-92-38 and OAR-2002-0029. The official
public docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. All items may not be listed under both docket numbers, so
interested parties should inspect both docket numbers to ensure that
they have received all materials relevant to the final amendments.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by stature. The official public docket
is the collection of materials that is available for public viewing at
the Office of Air and Radiation Docket and Information Center (Air
Docket) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301
Constitution Avenue NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744. The telephone number for the Air Docket
is (202) 566-1742. A reasonable fee may be charged for copying docket
materials.
Electronic Access. An electronic version of the public docket
(Docket ID
[[Page 70961]]
No. OAR-2002-0029) is available through EPA's electronic public docket
and comment system, EPA Dockets. You may use EPA Dockets at http://
www.epa.gov/edocket/ to view public comments, access the index listing
of the contents of the official public docket, and to access those
documents in the public docket that are available electronically. Once
in the system, select ``search,'' then key in the appropriate docket
identification number (OAR-2002-0029). Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the docket facility
identified in the above paragraph entitled ``Docket.''
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's final amendments will also be available
on the WWW through the Technology Transfer Network (TTN). Following
signature, a copy of the final amendments will be posted on the TTN's
policy and guidance page for newly proposed or promulgated rules at the
following address: http://www.epa.gov/ttn/oarpg/. The TTN provides
information and technology exchange in various areas of air pollution
control. If more information regarding the TTN is needed, call the TTN
HELP line at (919) 541-5384.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of the final amendments is available by filing a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit by February 17, 2004. Only those objections to the
final amendments which were raised with reasonable specificity during
the period for public comment may be raised during judicial review.
Under section 307(b)(2) of the CAA, the requirements that are the
subject of today's final amendments may not be challenged later in
civil or criminal proceedings brought by EPA to enforce these
requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Introduction
II. Summary of Comments and Responses
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Analysis
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Introduction
We received eight public comment letters on the September 20, 2002
proposed amendments. Six of the comment letters were from industry
representatives, one was from a control device manufacturer, and one
was from a State air pollution control agency. The commenters addressed
the alternative leak test procedures for railcars, the definitions and
monitoring requirements for flares and thermal oxidation systems, and
the alternative recordkeeping requirements for tank trucks. The
commenters expressed support for certain provisions of the amendments,
disagreed with one provision, and requested an additional alternative
to one that was proposed. This preamble summarizes the comments,
presents our responses to the comments, and identifies changes made to
the amendments as proposed.
II. Summary of Comments and Responses
Comment: Several commenters (two trade organizations, three oil
companies, and one control device manufacturer) objected to the
proposed amendments concerning thermal oxidation systems, stating that
the current national emission standards allow three monitoring options
for devices they referred to as ``enclosed flares,'' which are flare-
like burner systems enclosed by a stack or other enclosure. They stated
that the proposed amendments amounted to an unnecessary and
inappropriate narrowing of the monitoring alternatives for enclosed
flares. They stated that monitoring of the pilot flame provides
adequate assurance that the enclosed flare is operating in compliance
with the emission standard, and that the temperature monitoring
alternative should be applied only to enclosed flares that are not
meeting the design specification requirements of 40 CFR 63.11(b),
operated similarly to thermal incinerators, or operated by a facility
that prefers to use this monitoring method.
The commenters offered several reasons why continuous temperature
monitoring would not be appropriate for enclosed flares. They claimed
that vapor oxidation efficiency does not directly correlate with
combustion zone temperature in these systems. They said that
temperature monitoring is most appropriate for thermal incinerators
where relatively constant flow rates and compositions and, thus, a
constant temperature, are maintained. They explained that most enclosed
flares operate on a cyclic, on-off basis and, when designed and
operated properly, provide for energy conservation and maximum
emissions reductions. The commenters noted that enclosed flares are
designed and operated just like other flares, using the same technology
and installed in the same applications.
Additionally, the commenters pointed out that enclosed flares may
have to use additional supplemental fuel to achieve and maintain a
specific temperature, which would lead to increased emissions of VOC,
carbon monoxide, nitrogen oxides, and carbon dioxide. The amendments as
proposed also could inadvertently promote the use of less desirable and
less efficient open flame flares at facilities wishing to avoid the
increased testing and monitoring requirements associated with the
thermal oxidation definition. One commenter recommended that the
parametric continuous monitoring requirements not be limited
exclusively to firebox or stack temperature, and that no parametric
monitoring methods be prohibited on a general basis as long as the
parameter can be demonstrated to be reliable. Other commenters also
requested that facilities continue to have the option of applying for
an alternative operating parameter as provided in 40 CFR 63.427(a)(5).
Response: As discussed in the proposal preamble, the design and
operating specifications for flares in the General Provisions of 40 CFR
part 60 and 40 CFR part 63 were developed out of necessity, due to the
fact that flares cannot be reasonably tested using the prescribed EPA
source test methods. Further, it is not feasible to continuously
monitor either emissions or an operating parameter of this type of
control system. However, the thermal oxidation systems described by the
commenters (enclosed flares) do contain an enclosed exhaust space
(firebox, ductwork, stack, etc.) in which performance testing and
continuous monitoring can be performed. We would have preferred to
require continuous emission monitoring systems (CEMS) on all control
devices since they directly monitor emissions to the atmosphere.
Because viable CEMS were not identified (except for carbon adsorption
systems), our intention has always been to apply, wherever possible,
requirements for testing and for continuous monitoring of a direct
indicator of compliance. Combustion temperature is a good indicator of
[[Page 70962]]
performance for combustion devices. Since open flares could not be
directly measured for emissions or firebox temperature, we felt the
next best indicator of continuing compliance was to require flares to
meet minimum design specifications and to monitor for the presence of a
flame. Studies conducted by EPA indicate that open flares meeting the
design and monitoring requirements perform at a very high level of
efficiency. However, the flare design requirements and the requirement
to monitor for the presence of a flame were not intended for other
thermal oxidation systems since there are more direct means of
monitoring proper operation and maintenance.
While it may be possible that the types of devices described by the
commenters are capable of operating as efficiently as open flares, the
commenters did not provide any data or other information to demonstrate
that a presence-of-flame indicator installed in a thermal oxidation
system would ensure compliance with emission standards. They also did
not describe alternate ways of ensuring that these systems are designed
and operated properly if they were allowed to use presence-of-flame
indicators. For compliance to be assured, the system needs to be
properly designed, source tested initially to demonstrate compliance
and to establish operating parameter values, and continuously monitored
to ensure proper operation and continued compliance with the emission
standards. We do not, however, mandate that the owner or operator
adhere to a specific set of operating parameters to ensure continuing
compliance. In fact, Sec. 63.427(a)(5) of the final rule allows the
owner or operator the flexibility of monitoring any parameters that can
be demonstrated to ensure compliance with the emission standards.
Commenters have stated that alternative parameters (other than
temperature) for enclosed flares have already been approved by States
and EPA. Those alternatives are acceptable under the national emission
standards, as long as they have been properly demonstrated and approved
as provided under Sec. 63.427(a)(5).
As to the impacts of maintaining a specific temperature, we do not
specify any certain temperature, averaging time, or monitoring
frequency. Thus, if the owner or operator chooses to monitor
temperature, they would develop and demonstrate (while considering the
impacts on energy and other operating costs) the most appropriate
maximum and minimum temperature values, averaging times, and monitoring
frequency to indicate that the device is continuously achieving the
emission standards.
Due to these considerations, we have retained the proposed
definitions for ``flare'' and ``thermal oxidation system''. Further,
Sec. 63.427(a)(5) of the final rule still allows the monitoring of
alternative operating parameters for thermal oxidation systems, flares,
or any other type of control device upon demonstration that the
parameter demonstrates continuous compliance with the standards of
performance or national emission standards.
Comment: Two trade organizations commented that some of their
member companies have agreements with local control agencies to
maintain cargo tank vapor tightness documentation off-site but not
necessarily have copies instantly available at the site. These
facilities utilize a centralized computer system to maintain the
records for each vehicle that would load at the terminal. Prior to
allowing the vehicle operator to begin loading, the system
automatically compares the vehicle identification number to the test
records to ensure that the cargo tank has passed its test and that the
test results have not expired. The facility maintaining the vapor
tightness test results is able to provide a paper version to the
terminal within a matter of minutes to hours (via facsimile), depending
on the volume of records requested at any given time. The commenters
said that the proposed requirement for facilities to provide the
records ``instantly'' may prohibit these companies from continuing to
operate using their current systems. They provided suggested rule
language for incorporation into the 1983 standards of performance and
1994 national emission standards that would account for the
recordkeeping procedure used by these companies. Their suggested
provision would allow owners and operators using an automated vehicle
lock-out system to maintain a record system in which a copy of the test
documentation could be made available to inspectors either during a
visit by EPA or at some other mutually agreeable time.
Response: The intent of the requirement for affected facilities to
maintain vapor tightness test records is to provide a means of ensuring
that noncertified gasoline cargo tanks do not load (or at least are not
reloaded) at the facility. The computerized automation systems in use
at many facilities could provide this assurance when they have the
capability of automatically locking noncertified tanks out of the
loading process, and when records are properly maintained and entered
into the computerized system. Therefore, we have agreed to add this
option in addition to what was proposed.
Comment: Commenters agreed with all of the proposed changes for
railcar testing. However, two of the commenters clarified a statement
in the preamble (67 FR 59437, September 20, 2002) that, ``according to
owners of railcars, (railcar) leases usually run from 3 to 5 years and
require leak testing at the start or renewal of the lease.'' They
agreed that most leases range from 3 to 5 years, but pointed out that
the lessee determines when the leak test will be run according to the
lessee's pre-loading procedures and/or Department of Transportation
(DOT) requirements. The commenters stated that ``although determined by
the lessee, it is normal practice for a leak test to be performed when
a lessor starts a new lease, but a leak test is traditionally not
performed when a lease is renewed by the same company until it is time
to conduct the test during scheduled maintenance.''
Response: After consideration of the information provided by the
commenters, we have decided not to make any changes to the amendments
as proposed. As discussed more fully at proposal, there are several
factors involved in our decision to consider the DOT leak testing
procedures as an acceptable alternative to Method 27. The DOT test
procedures allow for no leaks during the test while Method 27 does
allow some leakage. The DOT procedures require pre- and post-test
inspections of the structural integrity of the cargo tank and also
require a qualifying program for testing personnel. The EPA leak
testing procedures do not require either of these items. Our procedures
do, however, require an annual test while the DOT only requires testing
once every 10 years or whenever the service equipment is reassembled on
the tank. The difference in testing frequency is not a significant
issue because the other factors balance the difference. Therefore,
while we would prefer the lease to require that leak tests be performed
and that the condition of the cargo tank be checked at the renewal of a
lease as well as at the start of a new lease, DOT requirements control
vapor leakage to levels equivalent to those required by the 1994
national emission standards.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether a regulation is
[[Page 70963]]
``significant'' and, therefore, subject to Office of Management and
Budget (OMB) review and the requirements of the Executive Order. The
Executive Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal government communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) raise novel or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Today's final amendments to the 1983 standards of performance and
1994 national emission standards will reduce the recordkeeping and
testing burden for some terminals, but we do not have an estimate of
the number of terminals affected. Therefore, the cost impacts of the
subject standards are less than previously estimated, but our estimates
have not been revised. The OMB evaluated the action and determined it
to be nonsignificant; therefore, the action did not require OMB review.
B. Paperwork Reduction Act
The information collection requirements in the subject standards
have been previously submitted to OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and were approved by OMB under the
promulgated 1983 standards of performance (OMB control number 2060-
0006-ICR 0665.06) and 1994 national emission standards (OMB control
number 2060-0325-ICR 1659.04). A copy of the Information Collection
Request (ICR) documents may be obtained from Susan Auby by mail at the
Office of Environmental Information, Collection Strategies Division
(2822T), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
by e-mail at Auby.Susan@epa.gov, or by calling (202) 566-1672.
Today's final amendments will reduce the recordkeeping and testing
burden for some terminals. We do not have an estimate of the number of
terminals affected by today's final amendments. Therefore, the ICR
burden is less than previously estimated but the ICR has not been
revised.
C. Regulatory Flexibility Analysis
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the final
amendments. The EPA has also determined that the final amendments will
not have a significant economic impact on a substantial number of small
entities.
For purposes of assessing the impacts of today's final amendments
on small entities, small entity is defined as: (1) A small business
whose parent company has fewer than 100 or 1,500 employees, or a
maximum of $5 million to $18.5 million in revenues, depending on the
size definition for the affected North American Industry Classification
System (NAICS) code; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field. It should be noted that the
small business definition applied to each industry by NAICS code is
that listed in the Small Business Administration (SBA) size standards
(13 CFR 121). For more information on size standards for particular
industries, please refer to the economic impact analysis in the docket.
When EPA promulgated the 1994 national emission standards, it
analyzed the potential impacts on small businesses, discussed the
results of the analysis in the Federal Register, and concluded that the
promulgated rule would not result in financial impacts that
significantly or differentially stress affected small companies. The
1983 standards of performance were analyzed for potential impacts on
small businesses under the Regulatory Flexibility Act (RFA) of 1980,
and it was determined that the RFA did not apply. We analyzed and
considered the impacts, and no significant impacts were expected.
After considering the economic impacts of today's final amendments
on small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
Today's final amendments will minimize the impact on small entities by
adding two alternatives to provide facilities with the flexibility to
comply in the least costly manner while maintaining a workable and
enforceable rule. Both alternatives were requested by impacted bulk
terminal and railcar owners and operators, and we worked with them to
develop the alternatives.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and tribal governments, in
aggregate, or by the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that today's final amendments do not contain
a Federal mandate that may result in expenditures of $100 million or
more to State, local, and tribal governments in the aggregate, or to
the private sector in any 1 year. Thus, today's final action is not
subject to the requirements of sections 202 and 205 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism
[[Page 70964]]
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
Today's final amendments do not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to today's amendments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
Today's final amendments do not have tribal implications. They will
not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to today's final amendments.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
We interpret Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. Today's final amendments are
not subject to Executive Order 13045 because they are based on
technology performance and not on health and safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Today's final amendments are not subject to Executive Order 13211
(66 FR 28355, May 22, 2001) because they are not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (NTTAA), Public Law 104-113, all Federal
agencies are required to use voluntary consensus standards (VCS) in
their regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices)
developed or adopted by one or more voluntary consensus bodies. The
NTTAA requires Federal agencies to provide Congress, through annual
reports to OMB, with explanations when the agency does not use
available and applicable VCS.
The final amendments involve technical standards. The EPA cites DOT
railcar procedures that reference the AAR Tank Car Manual bubble test.
Consistent with the NTTAA, EPA conducted searches to identify VCS in
addition to that method. The search and review results have been
documented and are placed in the docket for the final amendments,
Docket Nos. A-92-38 and OAR-2002-0029.
Two VCS are cited in the final amendments as alternatives to DOT's
bubble test. The two standards are British Standard (BS) EN-1593:1999,
``Non-destructive Testing: Leak Testing-Bubble Emission Techniques,''
and ASTM E515-95 (Reapproved 2000), ``Standard Test Method for Leaks
Using Bubble Emission Techniques.'' These two standards are discussed
below.
The VCS BS EN-1593 cited in the final amendments is a detailed
method that contains procedures that are either equivalent to those of
DOT bubble test specifications or that provide additional quality
control, including: certification of personnel, creating a pressure
differential, type of liquids to be used, preparation of the surface,
dwell time appropriate for the establishment of bubble emissions,
required surface temperature range, and specifications for direct and
indirect visual examination procedures.
The VCS ASTM E515 cited in the final amendments is also an
acceptable method that contains procedures that are either equivalent
to those of DOT bubble test specifications or provide additional
quality control, including: the type of liquids to be used; application
of fluid; creating a pressure differential; applying pressure before
liquid is applied; and accuracy, repeatability, and reproducibility of
locating leaks of 0.0001 standard cubic centimeters per second or
greater.
The methods that are included in the final amendments are listed in
40 CFR 63.425(i)(2). Under 40 CFR 63.7(f) of subpart A (General
Provisions), a source may apply to EPA for permission to use
alternative test methods in place of any EPA testing methods.
J. Congressional Review Act
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. The EPA will submit a report containing these final
amendments 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 amendments 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). The final amendments become effective on December 19,
2003.
List of Subjects
40 CFR Part 60
Environmental protection, Administrative practice and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practice and procedures,
[[Page 70965]]
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: December 12, 2003.
Michael O. Leavitt,
Administrator.
? For the reasons set out in the preamble, title 40, chapter I, parts 60
and 63 of the Code of Federal Regulations are amended as follows:
PART 60--[AMENDED]
? 1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart XX--[Amended]
? 2. Section 60.501 is amended by adding in alphabetical order
definitions for ``flare'' and ``thermal oxidation system'' to read as
follows:
Sec. 60.501 Definitions.
* * * * *
Flare means a thermal oxidation system using an open (without
enclosure) flame.
* * * * *
Thermal oxidation system means a combustion device used to mix and
ignite fuel, air pollutants, and air to provide a flame to heat and
oxidize hazardous air pollutants. Auxiliary fuel may be used to heat
air pollutants to combustion temperatures.
* * * * *
? 3. Section 60.503 is amended by adding paragraphs (e) and (f) to read
as follows:
Sec. 60.503 Test methods and procedures.
* * * * *
(e) The performance test requirements of paragraph (c) of this
section do not apply to flares defined in Sec. 60.501 and meeting the
requirements in Sec. 60.18(b) through (f). The owner or operator shall
demonstrate that the flare and associated vapor collection system is in
compliance with the requirements in Sec. Sec. 60.18(b) through (f) and
60.503(a), (b), and (d).
(f) The owner or operator shall use alternative test methods and
procedures in accordance with the alternative test method provisions in
Sec. 60.8(b) for flares that do not meet the requirements in Sec.
60.18(b).
? 4. Section 60.505 is amended by adding paragraph (e) to read as
follows:
Sec. 60.505 Reporting and recordkeeping.
* * * * *
(e) As an alternative to keeping records at the terminal of each
gasoline cargo tank test result as required in paragraphs (a), (c), and
(d) of this section, an owner or operator may comply with the
requirements in either paragraph (e)(1) or (2) of this section.
(1) An electronic copy of each record is instantly available at the
terminal.
(i) The copy of each record in paragraph (e)(1) of this section is
an exact duplicate image of the original paper record with certifying
signatures.
(ii) The permitting authority is notified in writing that each
terminal using this alternative is in compliance with paragraph (e)(1)
of this section.
(2) For facilities that utilize a terminal automation system to
prevent gasoline cargo tanks that do not have valid cargo tank vapor
tightness documentation from loading (e.g., via a card lock-out
system), a copy of the documentation is made available (e.g., via
facsimile) for inspection by permitting authority representatives
during the course of a site visit, or within a mutually agreeable time
frame.
(i) The copy of each record in paragraph (e)(2) of this section is
an exact duplicate image of the original paper record with certifying
signatures.
(ii) The permitting authority is notified in writing that each
terminal using this alternative is in compliance with paragraph (e)(2)
of this section.
* * * * *
PART 63--[AMENDED]
? 5. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
? 6. Section 63.14 is amended by adding new paragraphs (b)(30) and (j) to
read as follows:
Sec. 63.14 Incorporation by reference.
* * * * *
(b) * * *
(30) ASTM E 515-95 (Reapproved 2000), Standard Test Method for
Leaks Using Bubble Emission Techniques, IBR approved for Sec.
63.425(i)(2).
* * * * *
(j) The following material is available for purchase from: British
Standards Institute, 389 Chiswick High Road, London W4 4AL, United
Kingdom.
(1) BS EN 1593:1999, Non-destructive Testing: Leak Testing--Bubble
Emission Techniques, IBR approved for Sec. 63.425(i)(2).
(2) [Reserved]
* * * * *
Subpart R--[AMENDED]
? 7. Section 63.421 is amended by inserting the following definitions in
alphabetical order as follows:
Sec. 63.421 Definitions.
* * * * *
Flare means a thermal oxidation system using an open (without
enclosure) flame.
* * * * *
Thermal oxidation system means a combustion device used to mix and
ignite fuel, air pollutants, and air to provide a flame to heat and
oxidize hazardous air pollutants. Auxiliary fuel may be used to heat
air pollutants to combustion temperatures.
* * * * *
? 8. Section 63.422 is amended by revising paragraph (c)(2)(i) and adding
paragraph (e) to read as follows:
Sec. 63.422 Standards: Loading racks.
* * * * *
(c) * * *
(2) * * *
(i) The tank truck or railcar gasoline cargo tank meets the test
requirements in Sec. 63.425(e), or the railcar gasoline cargo tank
meets applicable test requirements in Sec. 63.425(i);
* * * * *
(e) As an alternative to 40 CFR 60.502(h) and (i) as specified in
paragraph (a) of this section, the owner or operator may comply with
paragraphs (e)(1) and (2) of this section.
(1) The owner or operator shall design and operate the vapor
processing system, vapor collection system, and liquid loading
equipment to prevent gauge pressure in the railcar gasoline cargo tank
from exceeding the applicable test limits in Sec. 63.425(e) and (i)
during product loading. This level is not to be exceeded when measured
by the procedures specified in 40 CFR 60.503(d) of this chapter.
(2) No pressure-vacuum vent in the bulk gasoline terminal's vapor
processing system or vapor collection system may begin to open at a
system pressure less than the applicable test limits in Sec. 63.425(e)
or (i).
? 9. Section 63.425 is amended by revising paragraph (a) and adding
paragraph (i) to read as follows:
Sec. 63.425 Test methods and procedures.
(a) Each owner or operator subject to the emission standard in
Sec. 63.422(b) or 40 CFR 60.112b(a)(3)(ii) shall comply with the
requirements in paragraphs (a)(1) and (2) of this section.
(1) Conduct a performance test on the vapor processing and
collection systems according to either paragraph (a)(1)(i) or (ii) of
this section.
(i) Use the test methods and procedures in 40 CFR 60.503 of this
chapter, except a reading of 500 ppm shall be used to determine the
level of
[[Page 70966]]
leaks to be repaired under 40 CFR 60.503(b), or
(ii) Use alternative test methods and procedures in accordance with
the alternative test method requirements in Sec. 63.7(f).
(2) The performance test requirements of 40 CFR 60.503(c) do not
apply to flares defined in Sec. 63.421 and meeting the flare
requirements in Sec. 63.11(b). The owner or operator shall demonstrate
that the flare and associated vapor collection system is in compliance
with the requirements in Sec. 63.11(b) and 40 CFR 60.503(a), (b), and
(d), respectively.
* * * * *
(i) Railcar bubble leak test procedures. As an alternative to
paragraph (e) of this section for annual certification leakage testing
of gasoline cargo tanks, the owner or operator may comply with
paragraphs (i)(1) and (2) of this section for railcar gasoline cargo
tanks, provided the railcar tank meets the requirement in paragraph
(i)(3) of this section.
(1) Comply with the requirements of 49 CFR 173.31(d), 179.7,
180.509, and 180.511 for the testing of railcar gasoline cargo tanks.
(2) The leakage pressure test procedure required under 49 CFR
180.509(j) and used to show no indication of leakage under 49 CFR
180.511(f) shall be ASTM E 515-95 (incorporated by reference, see Sec.
63.14), BS EN 1593:1999 (incorporated by reference, see Sec. 63.14),
or another bubble leak test procedure meeting the requirements in 49
CFR 179.7, 180.505, and 180.509.
(3) The alternative requirements in this paragraph (i) may not be
used for any railcar gasoline cargo tank that collects gasoline vapors
from a vapor balance system permitted under or required by a Federal,
State, local, or tribal agency. A vapor balance system is a piping and
collection system designed to collect gasoline vapors displaced from a
storage vessel, barge, or other container being loaded, and routes the
displaced gasoline vapors into the railcar gasoline cargo tank from
which liquid gasoline is being unloaded.
10. Section 63.427 is amended by revising paragraphs (a)(3) and (4)
to read as follows:
Sec. 63.427 Continuous monitoring.
(a) * * *
(3) Where a thermal oxidation system other than a flare is used, a
CPMS capable of measuring temperature must be installed in the firebox
or in the ductwork immediately downstream from the firebox in a
position before any substantial heat exchange occurs.
(4) Where a flare meeting the requirements in Sec. 63.11(b) is
used, a heat-sensing device, such as an ultraviolet beam sensor or a
thermocouple, must be installed in proximity to the pilot light to
indicate the presence of a flame.
* * * * *
? 11. Section 63.428 is amended by revising paragraphs (b)(1), (b)(3)(i),
and (b)(3)(viii), and by adding paragraph (k) to read as follows:
Sec. 63.428 Reporting and recordkeeping.
* * * * *
(b) * * *
(1) Annual certification testing performed under Sec. 63.425(e)
and railcar bubble leak testing performed under Sec. 63.425(k); and
* * * * *
(3) * * *
(i) Name of test: Annual Certification Test--Method 27 (Sec.
63.425(e)(1)); Annual Certification Test--Internal Vapor Valve (Sec.
63.425(e)(2)); Leak Detection Test (Sec. 63.425(f)); Nitrogen Pressure
Decay Field Test (Sec. 63.425(g)); Continuous Performance Pressure
Decay Test (Sec. 63.425(h)); or Railcar Bubble Leak Test Procedure
(Sec. 63.425(i)).
* * * * *
(viii) Test results: test pressure; pressure or vacuum change, mm
of water; time period of test; number of leaks found with instrument;
and leak definition.
* * * * *
(k) As an alternative to keeping records at the terminal of each
gasoline cargo tank test result as required in paragraph (b) of this
section, an owner or operator may comply with the requirements in
either paragraph (k)(1) or (2) of this section.
(1) An electronic copy of each record is instantly available at the
terminal.
(i) The copy of each record in paragraph (k)(1) of this section is
an exact duplicate image of the original paper record with certifying
signatures.
(ii) The permitting authority is notified in writing that each
terminal using this alternative is in compliance with paragraph (k)(1)
of this section.
(2) For facilities that utilize a terminal automation system to
prevent gasoline cargo tanks that do not have valid cargo tank vapor
tightness documentation from loading (e.g., via a card lock-out
system), a copy of the documentation is made available (e.g., via
facsimile) for inspection by permitting authority representatives
during the course of a site visit, or within a mutually agreeable time
frame.
(i) The copy of each record in paragraph (k)(2) of this section is
an exact duplicate image of the original paper record with certifying
signatures.
(ii) The permitting authority is notified in writing that each
terminal using this alternative is in compliance with paragraph (k)(2)
of this section.
[FR Doc. 03-31235 Filed 12-18-03; 8:45 am]
BILLING CODE 6560-50-P
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