[Federal Register Volume 70, Number 153 (Wednesday, August 10, 2005)]
[Proposed Rules]
[Pages 46452-46459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15825]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2004-0019, FRL-7950-9]
RIN 2060-AK10
National Emission Standards for Gasoline Distribution Facilities
(Bulk Gasoline Terminals and Pipeline Breakout Stations)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed decision; request for public comment.
-----------------------------------------------------------------------
SUMMARY: On December 14, 1994, we promulgated National Emission
Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals
and Pipeline Breakout Stations) (59 FR 64318). The 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.
Section 112(f)(2) of the Clean Air Act (CAA) directs EPA to assess
the risk remaining (residual risk) after the application of national
emission standards controls. Also, CAA section 112(d)(6) requires us to
review and revise the national emission standards as necessary by
taking into account developments in practices, processes, and control
technologies. The proposal announces a decision and requests public
comments on the residual risk assessment and technology review for the
national emission standards. We are proposing no further action at this
time to revise the national emission standards.
DATES: Comments. Submit comments on or before October 11, 2005.
Public Hearing. If anyone contacts the EPA requesting to speak at a
public hearing by August 30, 2005, a public hearing will be held on
September 7, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0019, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Air Docket, EPA, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Please include a total of two copies.
Hand Delivery: EPA, 1301 Constitution Ave., NW., Room
B102, Washington, DC 20460. Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OAR-2004-0019.
The EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal
[[Page 46453]]
regulations.gov websites are ``anonymous access'' systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The 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, and the telephone number for the Air and Radiation Docket is
(202) 566-1742.
Public Hearing. If a public hearing is held, it will begin at 10
a.m. and will be held at the EPA facility complex in Research Triangle
Park, North Carolina, or at an alternate facility nearby. Persons
interested in presenting oral testimony or inquiring as to whether a
public hearing is to be held must contact Mr. Stephen Shedd, listed in
the FOR FURTHER INFORMATION CONTACT section at least 2 days in advance
of the hearing. The public hearing will provide interested parties the
opportunity to present data, views, or arguments concerning the
proposed action.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proposed decision, review the reports listed in the SUPPLEMENTARY
INFORMATION section.
General and technical information. Mr. Stephen Shedd, U.S. EPA,
Office of Air Quality Planning and Standards, 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:
[email protected].
Residual risk assessment information. Mr. Ted Palma, U.S. EPA,
Office of Air Quality Planning and Standards, Emission Standards
Division, Risk and Exposure Assessment Group (C404-01), Research
Triangle Park, North Carolina 27711, telephone (919) 541-5470,
facsimile number (919) 541-0840, electronic mail (e-mail) address:
[email protected].
SUPPLEMENTARY INFORMATION:
Regulated entities. The regulated categories and entities affected
by the national emission standards include:
----------------------------------------------------------------------------------------------------------------
Category NAICS \a\ (SIC \b\) Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry...................................... 324110 (2911) Operations at major sources that
493190 (4226) transfer and store gasoline,
486910 (4613) including petroleum refineries,
424710 (5171) pipeline breakout stations, and
bulk terminals.
Federal/State/local/tribal governments........ .............. .............. ................................
----------------------------------------------------------------------------------------------------------------
\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 affected by the
national emission standards. To determine whether your facility would
be affected by the national emission standards, you should examine the
applicability criteria in 40 CFR 63.420. If you have any questions
regarding the applicability of the national emission standards to a
particular entity, consult either the air permit authority for the
entity or your EPA regional representative as listed in 40 CFR 63.13.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's proposed decision will also be available
on the WWW through the Technology Transfer Network (TTN). Following
signature, a copy of the proposed decision 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.
Reports for Public Comment. We have prepared two summary documents
covering the development of, and the rationale for, the proposed
decision and the residual risk analyses. These documents are entitled:
``Technology Review and Residual Risk Data Development for the Gasoline
Distribution NESHAP,'' and ``Residual Risk Assessment for the Gasoline
Distribution (Stage I) Source Category.'' Both documents are available
in Docket ID Number OAR-2004-0019. See the preceding Docket section for
docket information and availability.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. What is the statutory authority for these actions?
B. What is our approach for developing residual risk standards?
C. What are the current standards?
II. Analyses and Results
A. Residual risk review
B. Technology review
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
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
[[Page 46454]]
I. Background
A. What is the statutory authority for these actions?
Section 112 of the CAA establishes a comprehensive regulatory
process to address emissions of HAP from stationary sources. In
implementing this process, EPA has identified categories of sources
emitting one or more of the HAP listed in the CAA, and gasoline
distribution facilities were identified as one such source category.
Section 112(d) requires us to promulgate national technology-based
emission standards for sources within those categories that emit or
have the potential to emit any single HAP at a rate of 10 tons or more
per year or any combination of HAP at a rate of 25 tons or more per
year (known as ``major sources''), as well as for certain ``area
sources'' emitting less than those amounts. These technology-based
national emission standards for hazardous air pollutants (NESHAP) must
reflect the maximum reductions of HAP achievable (after considering
cost, energy requirements, and non-air health and environmental
impacts) and are commonly referred to as maximum achievable control
technology (MACT) standards. EPA completed the NESHAP for gasoline
distribution in 1994 (59 FR 64318).
In what is referred to as the ``technology review,'' the EPA is
required to review these technology-based standards and to revise them
``as necessary (taking into account developments in practices,
processes, and control technologies)'' no less frequently than every 8
years.
The ``residual risk'' review is described in section 112(f) of the
CAA. Section 112(f)(2) requires us to determine for each section 112(d)
source category whether the NESHAP protect public health with an ample
margin of safety. If the NESHAP for HAP ``classified as a known,
probable, or possible human carcinogen do not reduce lifetime excess
cancer risks to the individual most exposed to emissions from a source
in the category or subcategory to less than one in one million,'' EPA
must promulgate residual risk standards for the source category (or
subcategory) which provide an ample margin of safety. EPA must also
adopt more stringent standards to prevent an adverse environmental
effect (defined in section 112(a)(7) as ``any significant and
widespread adverse effect * * * to wildlife, aquatic life, or natural
resources * * *.''), but must consider cost, energy, safety, and other
relevant factors in doing so.
B. What is our approach for developing residual risk standards?
Following an initial determination that the risk to the individual
most exposed to emissions from sources in the category exceeds a 1-in-1
million lifetime excess individual cancer risk, our approach to
developing residual risk standards is based on a two-step determination
of acceptable risk and ample margin of safety.
The terms ``individual most exposed,'' ``acceptable level,'' and
``ample margin of safety'' are not specifically defined in the CAA.
However, section 112(f)(2)(B) retains EPA's interpretation of the terms
``acceptable level'' and ``ample margin of safety'' provided in our
1989 rulemaking (54 FR 38044, September 14, 1989), ``National Emission
Standards for Hazardous Air Pollutants (NESHAP): Benzene Emissions from
Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage
Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery
Plants,'' (Benzene NESHAP). We read CAA section 112(f)(2)(B) as
essentially directing EPA to use the interpretation set out in that
notice \1\ or to utilize approaches affording at least the same level
of protection.\2\ The EPA likewise notified Congress in its ``Residual
Risk Report to Congress'' that EPA intended to use the Benzene NESHAP
approach in making section 112(f) residual risk determinations.\3\
---------------------------------------------------------------------------
\1\ This reading is confirmed by the Legislative History to
section 112(f); see, e.g., ``A Legislative History of the Clean Air
Act Amendments of 1990,'' vol. 1, page 877 (Senate Debate on
Conference Report).
\2\ Legislative History, vol. 1, p. 877, stating, ``[T]he
managers intend that the Administrator shall interpret this
requirement [to establish standards reflecting an ample margin of
safety] in a manner no less protective of the most exposed
individual than the policy set forth in the Administrator's benzene
regulations * * *.''
\3\ ``Residual Risk Report to Congress'' at page ES-11, EPA-453/
R-99-001 (March 1999). EPA prepared this Report to Congress in
accordance with CAA section 112(f)(1). The Report discusses (among
other things) methods of calculating risk posed (or potentially
posed) by sources after implementation of the NESHAP, the public
health significance of those risks, the means and costs of
controlling them, actual health effects to persons in proximity to
emitting sources, and recommendations as to legislation regarding
such remaining risk.
---------------------------------------------------------------------------
In the Benzene NESHAP (54FR 38044-45), we stated as an overall
objective:
[I]n protecting public health with an ample margin of safety, we
strive to provide maximum feasible protection against risks to
health from hazardous air pollutants by (1) protecting the greatest
number of persons possible to an individual lifetime risk level no
higher than approximately 1-in-1 million; and (2) limiting to no
higher than approximately 1-in-10 thousand [i.e., 100 in a million]
the estimated risk that a person living near a facility would have
if he or she were exposed to the maximum pollutant concentrations
for 70 years.
As explained more fully in our Residual Risk Report to Congress,
these goals are not ``rigid line[s] for acceptability,'' but rather
broad objectives to be weighed ``with a series of other health measures
and factors.'' \4\
---------------------------------------------------------------------------
\4\ Id. at B-4.
---------------------------------------------------------------------------
Our decisions regarding residual risk in the gasoline distribution
source category followed the two-step framework established in the
Benzene NESHAP and applied in the April 15, 2005 (70 FR 19992) National
Emission Standards for Coke Oven Batteries; Final Rule (Coke Oven
Batteries NESHAP) analysis. In the Benzene NESHAP, EPA interpreted and
applied the two-step test drawn from the D.C. Circuit Court's Vinyl
Chloride opinion. The first step involves determining which risks are
``acceptable.'' In the second step, EPA must decide whether additional
reductions are necessary to provide ``an ample margin of safety'' (54
FR 38049). As part of this second decision, EPA may consider costs,
technological feasibility, uncertainties, or other relevant factors.
Further clarifying how the two steps would be conducted, EPA
emphasized the distinction between facilitywide emissions and source
category emissions in the Coke Oven Batteries NESHAP. In the first step
(``acceptable risk'') and the second step (``ample margin of safety''),
HAP emissions from the source category are considered. In the second
step, facilitywide emissions may be considered, as discussed in the
next paragraph. For the first step, ``* * * EPA has concluded that, in
its assessment of `acceptable risk' for purposes of section 112(f), the
agency will only consider the risk from emissions from that source
category. This was the approach in the Benzene NESHAP, wherein EPA
limited consideration of acceptability of risk to the specific sources
under consideration * * * rather than to the accumulation of these and
other sources of benzene emissions that may occur at an entire
facility.'' (70 FR 19997)
Again following the framework used in the Benzene NESHAP, in the
second step of our decision making, we consider setting standards at a
level which may be equal to or lower than the acceptable risk level and
which protect public health with an ample margin of safety. In making
this determination, we considered the estimate of health risk and other
health information along with
[[Page 46455]]
additional factors relating to the appropriate level of control,
including costs and economic impacts of controls, technological
feasibility, uncertainties, and other relevant factors. As stated in
the Coke Oven Batteries NESHAP, ``EPA believes one of the `other
relevant factors' that may be considered in this second step is co-
location of other emission sources that augment the identified risks
from the source category'' (70 FR 19998). In examining facilities with
gasoline distribution sources, we did evaluate facilitywide emissions,
but they were not considered in this ``ample margin of safety''
determination.
C. What are the current standards?
The National Emission Standards for Gasoline Distribution
Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations)
(Gasoline Distribution NESHAP) were promulgated on December 14, 1994
(59 FR 64318).
The Gasoline Distribution NESHAP cover HAP emissions resulting from
gasoline liquid storage and transfer operations at facilities with bulk
gasoline terminals and pipeline breakout stations. The gasoline
emission sources regulated by the Gasoline Distribution NESHAP are
storage tanks, loading racks, tank truck vapor leakage, and equipment
leaks.
The Gasoline Distribution NESHAP regulates only those sources
located at major sources. During the development of the NESHAP, we
estimated that there were approximately 1,290 facilities nationwide
(1,020 terminals and 270 pipeline stations), of which about 260 (240
terminals and 20 pipeline stations) would be considered major and,
therefore, subject to the NESHAP.
Usually, these gasoline operations are located at facilities with
other types of HAP-emitting sources (e.g., terminals, refineries,
chemical plants, pipeline facilities). These other collocated sources
are regulated under separate NESHAP (e.g., Refinery NESHAP, 40 CFR part
63, subpart CC), and today's proposed decision does not purport to
satisfy the statutory review requirements for these other sources under
CAA section 112(f) or 112(d)(6).
The HAP content of the gasoline vapors that escape to the
atmosphere from gasoline distribution sources is generally from 5 to 16
percent by weight and is dependent on the type of gasoline used (normal
or gasoline oxygenated with methyl tert butyl ether).
We estimated that the NESHAP would reduce emissions of nine key air
toxics, including benzene and toluene, that are found in gasoline vapor
by 2,300 tons annually. We also estimated that the NESHAP would reduce
emissions of volatile organic compounds (VOC) by over 38,000 tons
annually and result in energy savings of 10 million gallons of gasoline
per year from collecting or preventing gasoline evaporation.
II. Analyses and Results
A. Residual Risk Review
As required by CAA section 112(f)(2), we have prepared a risk
assessment to determine the residual risk posed by gasoline
distribution sources after implementation of the Gasoline Distribution
NESHAP. As with the NESHAP, we focused on nine HAP typically found in
gasoline vapor (referred to here as ``gasoline HAP'') and collected
data on the emissions of these. Based on information collected from
EPA's Regional Offices and from industry associations, we compiled a
list of 102 facilities covered by the Gasoline Distribution NESHAP.\5\
Using our National Emissions Inventory (NEI) database, we were able to
collect detailed emissions data for 69 of these facilities. Even though
we do not have emissions information for every facility in the
category, it is unlikely that the risk would be significantly higher
for the other facilities in the category because the facilities we
assessed are believed to be a representative subset of this industry.
---------------------------------------------------------------------------
\5\ This is a smaller number of facilities than we originally
predicted would be covered by the NESHAP. During the development of
the NESHAP, we used model facility analyses to estimate that as many
as 260 facilities would be subject to the NESHAP. The lower number
compiled for our risk analysis may be the result of facilities
reducing emissions and accepting permit limits or otherwise
demonstrating that their emissions remain below applicability
cutoffs.
---------------------------------------------------------------------------
Because the gasoline HAP are VOC, the inhalation pathway was
expected to be the primary route of exposure for humans, and the
assessment of human health risk via inhalation was the focus of this
analysis. Using the collected information, we estimated emissions,
modeled exposure concentrations surrounding these facilities,
calculated the risk of possible chronic cancer and noncancer health
effects, and evaluated whether acute exposures might exceed relevant
health thresholds.
We considered risks attributable to the gasoline distribution
source category in the ``acceptable risk'' and ``ample margin of
safety'' determinations. However, HAP emissions reported in the
available inventory databases are generally based on total,
facilitywide emissions, and some of the HAP emissions reported for
these facilities are from emission sources that are not in the gasoline
distribution source category. We estimate that the contribution from
gasoline distribution sources at the modeled facilities ranges from as
low as 10 percent up to 100 percent of the total facilitywide emissions
of the nine gasoline HAP.
The modeled facility with the highest calculated maximum individual
lifetime risk (MIR) attributable to gasoline distribution sources was
co-located at a petroleum refinery and the MIR was estimated to be
about 5-in-1 million. The MIR attributable to gasoline distribution
sources at each of the other modeled facilities was estimated to be
less than 3-in-1 million.
Even when facilitywide emissions are included, only 20 percent of
the facilities modeled pose greater than 1-in-1 million cancer risk. Of
those, only four are facilities where it was determined that all of the
reported emissions came from gasoline distribution sources, and the
facilitywide MIR values for these four facilities were all less than 2-
in-1 million.
The highest calculated MIR was 26-in-1 million at one facility (the
petroleum refinery mentioned earlier) when we included all of the
facility's reported emissions of the examined HAP without limiting the
analysis to the gasoline distribution source category.
Estimated annual cancer incidence was also calculated, based on
predicted individual cancer risk and the number of people reported to
reside in the U.S. census blocks within the modeled area around each
facility (i.e., out to 50 kilometers). When examining emissions from
the entire facility, without regard to source category, we found that
for the 13 facilities for which estimated maximum individual cancer
risk is greater than 1-in-1 million for the whole facility, the summed
estimated cancer incidence is 0.003 cases per year. Across all 69
facilities, the total estimated incidence is 0.004 cases per year.
Incidence attributable to gasoline distribution sources would be about
20 percent of those cases per year. Note that values presented here are
estimated incremental rates based on modeled concentrations and 2000
U.S. Census data, and they should not be interpreted as actual cancer
incidence rates derived from observations of disease occurrence over
time (such as cancer incidence rates that may be reported based on
epidemiological studies).
When examining noncancer impacts, we found that the highest
calculated chronic noncancer hazard index was 0.2 for one of the
facilities modeled, and that no other facilities included in the
assessment had a chronic noncancer
[[Page 46456]]
hazard index greater than 0.2. This means that the total lifetime
exposures to the HAP emitted by these facilities only exceeded 20
percent of the noncancer reference concentration at one facility.
Finally, we found that acute exposures, which were calculated by
assuming the maximum hourly emissions rate would be twice the average
rate of emissions, did not exceed the relevant health thresholds for
acute effects for these HAP, even when total facility emissions were
estimated rather than just emissions from within the gasoline
distribution source category.
All of this analysis can be found in our ``Technology Review and
Residual Risk Data Development for the Gasoline Distribution NESHAP''
and ``Residual Risk Assessment for the Gasoline Distribution (Stage I)
Source Category.'' See ``Reports for Public Comment'' in the
SUPPLEMENTARY INFORMATION section above for information on obtaining
these reports.
In the Benzene NESHAP, we explained, ``The EPA will generally
presume that if the risk to that individual [the MIR] is no higher than
approximately 1 in 10 thousand, that risk level is considered
acceptable and EPA then considers the other health and risk factors to
complete an overall judgment on acceptability.'' Based on the risk
estimates calculated for the gasoline distribution source category
emissions at these 69 facilities, we have concluded that the residual
risk for this source category is acceptable.
Because our conservative risk estimates suggest risks exceeding 1-
in-1 million after the application of MACT, we considered the
feasibility and costs of additional controls to reduce emissions and
associated risks. We considered options for adding controls, increasing
inspections, and tightening standards for each of the emissions points
in the gasoline distribution source category. We collected information
on whether new methods of controlling emissions existed and whether
other States or local air agencies had adopted more stringent
requirements. We identified options for each emission point and
evaluated the costs and emission reduction benefits of these options.
This analysis can be found in our ``Technology Review and Residual Risk
Data Development for the Gasoline Distribution NESHAP.''
Because the data for the facilities analyzed in our risk assessment
were not sufficient to analyze the existing level of control and the
potential for emission reductions, we examined the potential maximum
impacts for a model bulk gasoline terminal with HAP emissions just from
the gasoline distribution source category. We estimated that the
maximum HAP reduction that could be expected from the model terminal
was about 0.8 tons per year (about a 30 percent reduction). This
emission reduction would reduce the source category's highest
calculated MIR cancer risk from the nine HAP from a MIR of 5-in-1
million to about 3-in-1 million.
We estimated that achieving these reductions would involve a
capital cost of about $700,000 and a total annualized cost of about
$265,000. For comparison, the impacts for an average facility complying
with the current NESHAP are estimated to be HAP reduction of nearly 9
tons per year, a capital cost of about $450,000, and a total annualized
cost of about $60,000. We request comments specifically addressing the
adequacy of the model terminal analysis of potential emission
reductions and costs, and comparing emissions from the model terminal
to terminals analyzed in this risk analysis.\6\
---------------------------------------------------------------------------
\6\ The model gasoline bulk terminal operating parameters were
based on information gathered during the development of the NESHAP.
Based on the gasoline throughput, number and size of gasoline
storage tanks, and number of loading racks, the model terminal has
an annual emission rate (after implementation of NESHAP controls) of
about 2.5 tons of HAP when handling only normal gasoline. According
to the NEI database, several of the actual facilities that were
analyzed for residual risk emit HAP at a much higher rate. We
determined that the percentage of HAP emission reductions (and the
estimated costs per ton of HAP emissions reduced) for additional
controls on the model terminal would also be representative of
larger facilities.
---------------------------------------------------------------------------
The maximum individual cancer risk for this source category is
already below the level we presumptively consider acceptable, and
additional control requirements would achieve minimal risk reduction at
a very high cost. Further, the analysis has shown that both the
noncancer and acute risks from this source category are below their
relevant health thresholds. As a result, we concluded that no
additional control should be required because an ample margin of safety
(considering cost, technical feasibility, and other factors) has been
achieved by the NESHAP for the gasoline distribution source category.
In this conclusion, we did not consider facilitywide risk. Although we
believe we can consider facilitywide risk as a relevant factor in
determining an ample margin of safety, we do not have cost, technical
feasibility and other data to analyze emission sources at the facility
that are outside the gasoline distribution source category.
We are also required to consider adverse impacts to the environment
(e.g., ecological risks) as a part of a residual risk assessment. As
previously noted, because gasoline HAP are VOC, the inhalation pathway
was expected to be the primary route of exposure. Regarding the
inhalation exposure pathway for terrestrial mammals, we contend that
human toxicity values for the inhalation pathway are generally
protective of terrestrial mammals. Because the maximum cancer and
noncancer hazards to humans from inhalation exposure are relatively
low, we expect there to be no significant and widespread adverse effect
to terrestrial mammals from inhalation exposure to HAP emitted from the
gasoline distribution source category. To ensure that the potential for
adverse effect to wildlife (including birds) resulting from emissions
of HAP for this source category is low, we have carried out a
screening-level assessment of ecological effect via inhalation
toxicity. No such adverse effect was identified. Since our results
showed no screening-level ecological effect, we do not believe that
there is an effect on threatened or endangered species or on their
critical habitat within the meaning of 50 CFR 402.14(a). Because of
these results, EPA concluded that a consultation with the Fish and
Wildlife Service was not necessary. Thus, we have concluded that the
level of risk resulting from the limits in the NESHAP is acceptable for
this source category, and that changes to the NESHAP are not required
to satisfy section 112(f) of the CAA.
B. Technology Review
In addition to the requirements in CAA section 112(f)(2) to review
the residual risk, section 112(d)(6) requires us to review and revise
as necessary (taking into account developments in practices, processes,
and control technologies) emission standards promulgated under section
112(d) no less often than every 8 years.
As described above, we investigated emission control levels and the
potential for additional emission reductions from existing affected
facilities within the gasoline distribution source category. Additional
controls would achieve at best, minimal emission and risk reductions at
a very high cost. We also did not identify any significant developments
in practices, processes, or control technologies since promulgation of
the original standards in 1994.
For new affected facilities, we found that the best controlled
storage tanks use the new source performance standards seal types
already required by the NESHAP. We also found the NESHAP's 10
milligrams standard for tank truck
[[Page 46457]]
and rail car loading to be the best control in practice. We also
concluded that the NESHAP requirement for monthly inspections for
equipment leaks is the best control level in practice.
In the assessment of leak standards for tank trucks at new
facilities, we found that California uses the same annual test method
as the NESHAP, but the California regulations allow a maximum pressure
change of a half inch over the five minute test for all tank trucks in
California compared to the one inch allowed by the NESHAP. We concluded
that the change to a lower allowable leakage rate is impractical for a
national program. From our model facility assessment discussed earlier,
these controls achieve small HAP reductions and have a poor HAP cost
effectiveness. Adjusting the standards for existing sources could not
be justified under section 112(d)(6). As a result, any revised limits
in the NESHAP under section 112(d)(6) would only apply to affected new
sources, and existing sources would still be subject to the current
limits. We also concluded that potentially having different leak
testing requirements at facilities within the same geographical area
would be hard to implement because it would require tank truck owners
and operators to track and understand which terminals have the
different requirements. Thus, because there are expected to be very
few, if any, affected new sources across the U.S. in the next 5 to 10
years, a revised testing requirement would not apply at most terminals.
The annual pressure testing requirement of the NESHAP is also
considered to be the best control nationally. We concluded that the new
source standard for leakage rates should be kept the same as that for
existing sources and that no further revisions to the Gasoline
Distribution NESHAP are needed. Because the NESHAP continue to
represent the best controls that can be implemented nationally, we are
proposing to not revise the Gasoline Distribution NESHAP under CAA
section 112(d)(6).
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 ``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.
It has been determined that today's proposed decision is a
``significant regulatory action'' under the terms of Executive Order
12866. Therefore, today's proposed decision was submitted to OMB for
review. However, today's proposed decision will result in no additional
cost impacts beyond those estimated for the current national emission
standards. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements for the national
emissions standards under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0325, EPA ICR number 1659. A copy of the OMB approved Information
Collection Request (ICR) may be obtained from Susan Auby, Collection
Strategies Division; U.S. Environmental Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
EPA has established a public docket for this action, which includes
the ICR, under Docket ID number OAR-2004-0019, which can be found in
http://www.epa.gov/edocket. Today's proposed decision will not change
the burden estimates from those developed and approved in 1994 for the
national emission standards.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed decision
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 part 121).
After considering the economic impacts of today's proposed decision
on small entities, I certify that the decision will not have a
significant economic impact on a substantial number of small entities.
The proposed decision will not impose any requirements on small
entities. Today's proposal announces a decision and requests public
comments on the residual risk assessment and technology review for the
national
[[Page 46458]]
emission standards and imposes no additional burden on facilities
impacted by the national emission standards. We are proposing no
further action at this time to revise the national emission standards.
We continue to be interested in the potential impacts of the proposed
decision on small entities and welcome comments on issues related to
such impacts.
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 proposed decision does 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. Therefore, today's
proposed decision is not subject to the requirements of sections 202
and 205 of the UMRA. In addition, today's proposed decision does not
significantly or uniquely affect small governments because it contains
no requirements that apply to such governments or impose obligations
upon them. Therefore, today's proposed decision is not subject to
section 203 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 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 proposed decision does 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 the Executive Order do not apply to
today's proposed decision.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, 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 proposed decision does not have tribal implications. It
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 proposed
decision.
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, the 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 the Agency.
Today's proposed decision is not subject to the Executive Order
because it is not economically significant as defined in Executive
Order 12866, and because the Agency does not have reason to believe the
environmental health or safety risk addressed by this action present a
disproportionate risk to children. The public is invited to submit or
identify peer-reviewed studies and data, of which the Agency may not be
aware, that assessed results of early life exposure to gasoline
distribution facility emissions.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Today's proposed decision is not a ``significant energy action'' as
defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that today's
proposed decision is not likely to have any adverse energy impacts.
I. National Technology Transfer Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (NTTAA), Public Law No. 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
[[Page 46459]]
explanations when the agency does not use available and applicable VCS.
Today's proposed decision does not involve technical standards.
Therefore, the requirements of the NTTAA are not applicable.
List of Subjects for 40 CFR Part 63
Environmental protection, Administrative practice and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: August 4, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-15825 Filed 8-9-05; 8:45 am]
BILLING CODE 6560-50-P