[Federal Register Volume 63, Number 245 (Tuesday, December 22, 1998)]
[Rules and Regulations]
[Pages 70667-70669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33841]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD068-3037; FRL-6202-6]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Control of Volatile Organic Compound From Sources That Store
and Handle JP-4 Jet Fuel
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Maryland. This revision establishes and
requires volatile organic compound (VOC) emission control requirements
for sources that store or handle JP-4 jet fuel. The intended effect of
this action is to approve revisions to COMAR 26.11.13 into the Maryland
SIP in accordance with the Clean Air Act.
EFFECTIVE DATE: This final rule is effective on January 21, 1999.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone and
Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket
and Information Center, U.S. Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460; and the Maryland Department of the
Environment, 2500 Broening Highway, Baltimore, Maryland 21224.
FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney at (215) 814-2092, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: On August 26, 1998, EPA published a direct
final rule [63 FR 45397] approving Maryland's revisions to COMAR
26.11.13, ``Control of Gasoline and Volatile Organic Compound Storage
and Handling.'' The formal SIP revision was submitted by Maryland on
March 31, 1998. In the August 26, 1998 direct final rulemaking, EPA
stated that if adverse comments were received on the final approval
within 30 days of its publication, EPA would publish a document
announcing the withdrawal of its direct final rulemaking action.
Because EPA received adverse comments on the direct final rulemaking
within the prescribed comment period, EPA withdrew the August 26, 1998
final rulemaking action on Maryland's revisions to COMAR 26.11.13. This
withdrawal document appeared in the Federal Register on October 9, 1998
[63 FR 54355]. A companion proposed rulemaking notice to approve
Maryland's revisions to COMAR 26.11.13 was published in the Proposed
Rules section of the August 28, 1998 Federal Register [63 FR 45443].
Response to Comments
EPA received two letters commenting on the August 26, 1998 direct
final rulemaking from Boeing and the Air Transportation Association of
America. The letters requested that EPA further clarify the intent of
Maryland's regulation and whether Maryland's regulation could be
construed to apply to the commercial airline industry. The following
discussion summarizes and responds to the comments received.
Comment: Is it the EPA's intent that this regulation apply to all
jet fuel storage and handling systems in Maryland, or only those that
handle JP-4?
Response: The Technical Support Document (TSD) submitted in support
of Maryland's SIP revision request suggests that COMAR 26.11.13 is
intended to apply to military installations that handle JP-4 jet fuel.
According to the State, ``the purpose of the amendments to COMAR
26.11.13 is to establish reasonably available control technology (RACT)
requirements for the storage and handling of JP-4, a jet fuel and
volatile organic compound (VOC).'' The State's TSD goes on to state
that ``JP-4 is used as a fuel primarily in military aircraft.'' Under
the section entitled ``Affected Industry in Maryland'', the TSD notes
that the following facilities in Maryland store and handle jet fuels:
Andrews Air Force Base, Patuxent Naval Air Station and Steuart
Petroleum.
COMAR 26.11.13 does not define the term ``jet fuel'' per se, but
does define ``gasoline'' as follows: ``Gasoline means a petroleum
distillate or alcohol, or their mixtures, having a true vapor pressure
within the range of 1.5 to 11 pounds per square inch absolute (psia)
(10.3 to 75.6 kilonewton/square meter) that is used as fuel for
internal combustion engines or aircraft [emphasis added].'' According
to the Maryland Department of Environment, JP deg.4 jet fuel has a
vapor pressure of 1.6 psia at 70oF, and therefore, is defined as a
gasoline under the regulation and subject to the rule's
[[Page 70668]]
provisions. By its intent, Maryland's regulation is not meant to apply
to other jet fuels, whether for commercial or military use.
Comment: EPA's proposed approval mistakenly intimates that JP-4
includes all jet fuel. In so doing, it has effectively misstated the
purpose of the amended Maryland regulation noting for example, without
qualification, that the SIP revision is intended ``to establish VOC
emission control requirements on sources that store and handle jet
fuel.'' The approval should be clarified to recognize the distinction
in the regulation between JP-4 and those jet fuels which were not
intended to be the subject of the SIP revision because they do not
possess volatility properties similar to gasoline.
Response: In the SIP submittal, both Maryland's cover letter and
TSD that accompanied the revisions to COMAR 26.11.13 state that the
amendments establish RACT requirements for the storage and handling of
JP-4, a jet fuel. EPA agrees that the statement referenced by the
commenter may have been misleading by implying that this regulation
applies to jet fuels other than JP-4. EPA agrees with the commenter
that jet fuels that do not possess the volatility properties as defined
in Maryland's definition of ``gasoline'' are not intended to be subject
to the regulation.
Comment: Clarification is requested that this rule does not apply
to other jet fuels, specifically, JP-8, JET-A, JET-A1 and other
commercially used jet fuels.
Response: According to information supplied by the commenters, the
referenced commercial jet fuels do not have vapor pressure properties
that fall within the range of vapor pressure defined in Maryland's
definition of ``gasoline.'' Based on this information, these fuels
would not be subject to the provisions of COMAR 26.11.13. Furthermore,
Maryland's TSD clearly states that this regulation applies to the
storage and handling of JP-4 and not to JP-8. Other specific jet fuels
are not mentioned in Maryland's TSD as being subject to the regulation.
Other specific requirements of Maryland's SIP revision and the
rationale for EPA's proposed action are explained in the August 26,
1998 direct final rulemaking and will not be restated here.
Final Action
EPA is approving the revisions to COMAR 26.11.13 into the Maryland
SIP.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, E.O. 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency 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 the Agency.
This final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of a flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on
[[Page 70669]]
such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this approval of revisions to COMAR 26.11.13 must be
filed in the United States Court of Appeals for the appropriate circuit
by February 22, 1999. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for the purposes of judicial review nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone, Reporting and recordkeeping
requirements.
Dated: December 7, 1998.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.1070 is amended by adding paragraph (c)(130) to read
as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
(130) Revisions to the Maryland State Implementation Plan submitted
on March 31, 1998 by the Maryland Department of the Environment.
(i) Incorporation by reference.
(A) Letter of March 31, 1998 from the Maryland Department of the
Environment transmitting revisions to Maryland's air quality regulation
COMAR 26.11.13, pertaining to the control of VOC emissions from sources
that store and handle JP-4 jet fuel adopted by the Secretary of the
Environment on March 28, 1997 and effective August 11, 1997.
(B) Revisions to COMAR 26.11.13.01(B)(4) the definition of
``gasoline.''
(ii) Additional Material: Remainder of March 31, 1998 Maryland
State submittal pertaining to COMAR 26.11.13 control of VOCs from
sources that store and handle JP-4 jet fuel.
* * * * *
[FR Doc. 98-33841 Filed 12-21-98; 8:45 am]
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