Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70241 

38See, e.g., 75 FR 8056 (February 23, 2010); 70 

FR 22034 (April 28, 2005). 39CARB Item 2 at 7–8. 40 65 FR 59896 (October 6, 2000). 41 66 FR 5002 (January 18, 2001), at pp. 5053 to 

5055. 

42 Id. And Item 2 at pp. 7–8. 

43CARB Request for Confirmation that 

Amendments Are Within the Scope of Previous 

Waivers of Preemption Under Clean Air Act Section 

209(b), December 7, 2005 at 14. 

compelling and extraordinary 

conditions. 

C. Consistency with Section 202(a) of 

the Clean Air Act 

EPA has stated in the past that 

California standards and accompanying 

test procedures would be inconsistent 

with section 202(a) of the Clean Air Act 

if: (1) There is inadequate lead time to 

permit the development of technology 

necessary to meet those requirements, 

giving appropriate consideration to cost 

of compliance within the lead time 

provided, or (2) the federal and 

California test procedures impose 

inconsistent certification 

requirements.38

The first prong of EPA’s inquiry into 

consistency with section 202(a) of the 

Act depends upon technological 

feasibility. This requires EPA to 

determine whether adequate technology 

already exists; or if it does not, whether 

there is adequate time to develop and 

apply the technology before the 

standards go into effect. CARB noted 

during its rulemakings that the methods 

that can be used to meet the 2004–2005 

standards consist of technologies that 

have already been developed in 

response to federal emission standards. 

The technology changes that were 

expected to occur as a result of the new 

regulations include: Improved 

durability catalysts with increased 

precious metal loading, optimization of 

the catalyst and fuel metering systems 

(including improved fuel injection and 

heated oxygen sensors), increased use of 

air injection and retarded spark ignition 

to control cold start emissions, and 

improved exhaust gas recirculation for 

better NOX control.39 Additionally, 

CARB notes that the technological 

feasibility demonstrations for the 

exhaust emission standards reflect the 

technological feasibility in EPA’s own 

analysis for the federal standards.40

CARB also relied on the federal findings 

of technological feasibility for 

technologies that can be used to meet 

the 2008 and beyond standards.41 EPA 

finds that CARB employed appropriate 

projections of the feasibility of the 

technologies necessary to meet both the 

2004–2005 standards and the 2008 

standards. CARB’s examination of the 

technological feasibility findings made 

by EPA in the federal rulemaking along 

with subsequent technology 

developments provide no basis upon 

which to find that CARB’s standards are 

not consistent with section 202(a) of the 

Act. 

The second prong of EPA’s inquiry 

into consistency with section 202(a) of 

the Act depends on the compatibility of 

the federal and California test 

procedures. CARB points out that its 

certification requirements are nearly 

identical to those adopted by EPA.42 In 

fact, CARB found that beginning with 

the 2008 model year, California’s test 

procedures are identical to the federal 

test procedures for heavy-duty gasoline 

engines and incomplete vehicles.43 EPA 

agrees with this analysis and finds that 

one set of tests for a heavy-duty engine 

or vehicle could be used to determine 

compliance with both California and 

federal requirements. Therefore, we 

cannot find California’s test procedures 

to be inconsistent with our own. 

For these reasons, I cannot deny the 

waiver based on a finding that the 2000 

and 2002 amendments are inconsistent 

with section 202(a) of the Clean Air Act. 

III. Decision 

EPA’s analysis finds the criteria for 

granting a waiver of preemption to be 

satisfied. The amendments require a 

new waiver of preemption because ‘‘new 

issues’’ are presented by the 

establishment of more stringent 

numerical standards in efforts to 

harmonize California standards with 

federal standards. Upon evaluation, EPA 

has determined that CARB has met the 

criteria for a waiver of preemption for 

the 2000 and 2002 amendments. 

The Administrator has delegated the 

authority to grant California a section 

209(b) waiver to enforce its own 

emission standards for on-road engines 

to the Assistant Administrator for Air 

and Radiation. Having given 

consideration to all the material 

submitted for this record, and other 

relevant information, I find that I cannot 

make the determinations required for a 

denial of a waiver pursuant to section 

209(b) of the Act. Therefore, I grant a 

waiver of Clean Air Act preemption to 

the State of California with respect to its 

heavy-duty Otto-cycle engine and 

vehicle requirements as set forth above. 

My decision will affect not only 

persons in California but also 

manufacturers outside the State who 

must comply with California’s 

requirements in order to produce 

engines for sale in California. For this 

reason, I determine and find that this is 

a final action of national applicability 

for purposes of section 307(b) (1) of the 

Act. 

Pursuant to section 307(b) (1) of the 

Act, judicial review of this final action 

may be sought only in the United States 

Court of Appeals for the District of 

Columbia Circuit. Petitions for review 

must be filed by January 18, 2011. 

Judicial review of this final action may 

not be obtained in subsequent 

enforcement proceedings, pursuant to 

section 307(b) (2) of the Act. 

In addition, this action is not a rule 

as defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601(2). Therefore, EPA has 

not prepared a supporting regulatory 

flexibility analysis addressing the 

impact of this action on small business 

entities. 

Dated: November 10, 2010. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2010–28971 Filed 11–16–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–UST–2010–0651; FRL–9227–8] 

Compatibility of Underground Storage 

Tank Systems With Biofuel Blends 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed guidance 

and request for comments. 

SUMMARY: EPA’s Office of Underground 

Storage Tanks intends to issue guidance 

that would clarify EPA’s underground 

storage tank (UST) compatibility 

requirement as it applies to UST 

systems storing gasoline containing 

greater than 10 percent ethanol and 

diesel containing an amount of biodiesel 

yet to be determined. Today’s Federal 

Register notice solicits comment on the 

proposed guidance, which provides 

owners and operators of underground 

storage tank systems greater clarity in 

demonstrating compatibility of their 

tank systems with these fuels. 

DATES: Comments must be received on 

or before December 17, 2010, 30 days 

after publication in the Federal 

Register. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

UST–2010–0651, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: rcra-docket@epa.gov. 

• Mail: EPA Docket Center, 

Environmental Protection Agency, 

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70242 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 

Underground Storage Tank (UST) 

Docket, Mail Code: 2822T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–UST–2010– 

0651. 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.regulations.gov, 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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, 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 http:// 

www.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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the UST Docket, EPA/DC, EPA West, 

Room 3334, 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 UST Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Barbery, Office of Underground 

Storage Tanks, Mail Code 5402P, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460; telephone number: (703) 

603–7137; e-mail address: 

barbery.andrea@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action applies to owners and 

operators of underground storage tank 

systems regulated by 40 CFR Part 280, 

who intend to store gasoline blended 

with greater than 10 percent ethanol. It 

may also apply to owners and operators 

storing a to-be-determined percentage of 

biodiesel blended with diesel fuel. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI). In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information 

and/or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

A. Statutory Authority 

This proposed guidance discusses 

EPA’s underground storage tank (UST) 

compatibility requirement that was 

promulgated under the authority of 

Subtitle I of the Solid Waste Disposal 

Act (SWDA), as amended. 42 U.S.C. 

6991b et seq. This requirement, which 

is referenced and discussed in the 

guidance, is found in 40 CFR 280.32. 

B. Underground Storage Tank 

Compatibility Requirement 

To protect groundwater, a source of 

drinking water for nearly half of all 

Americans, the U.S. Environmental 

Protection Agency (EPA) regulates UST 

systems storing petroleum or hazardous 

substances under authority of Subtitle I 

of the Solid Waste Disposal Act, as 

amended. Ethanol and biodiesel are not 

regulated substances under EPA’s UST 

program; however, tanks storing 

gasoline or diesel mixed with ethanol or 

biodiesel are regulated by EPA. For the 

purposes of this guidance, EPA 

considers an ‘‘ethanol blend’’ to be any 

amount of ethanol mixed with 

petroleum gasoline, and a ‘‘biodiesel 

blend’’ to be any amount of biodiesel 

mixed with petroleum diesel. 

EPA regulations address the 

prevention and detection of releases 

from UST systems; one particular 

provision in the federal UST regulations 

that aims to prevent releases specifically 

requires compatibility of stored 

substances with UST system 

components. As the U.S. moves toward 

an increased use of biofuels, such as 

ethanol and biodiesel, compliance with 

the UST compatibility requirement 

becomes even more important, since 

ethanol and biodiesel blends can 

compromise the integrity of some UST 

system materials. Today’s Federal 

Register notice solicits comment on 

proposed guidance and associated 

issues that will clarify how owners/ 

operators of UST systems storing fuels 

containing greater than 10 percent 

ethanol or a to be determined percent of 

biodiesel can demonstrate compliance 

with the UST compatibility 

requirement. 

As of March 2010, there are 

approximately 607,000 regulated USTs 

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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70243 

1See 74 FR 18228 (April 21, 2009). 2See 75 FR 68043 (November 4, 2010). 

at 221,000 facilities nationwide. States 

and territories (hereafter referred to as 

states) are the primary implementers of 

the UST program because they are in the 

best position to implement UST 

program requirements, based on the size 

and diversity of the regulated 

community. In order for EPA to approve 

a State’s program, that state’s 

regulations must be at least as stringent 

as the Federal UST regulations. 

An UST system includes the 

underground storage tank, connected 

underground piping, underground 

ancillary equipment, and any 

containment systems. Fuel dispensers 

are not part of the UST system, and 

therefore this guidance does not apply 

to dispensers. 

C. Discussion 

The federal UST regulations require 

that ‘‘[o]wners and operators must use 

an UST system made of or lined with 

materials that are compatible with the 

substance stored in the UST system’’ (40 

CFR § 280.32). Because the chemical 

and physical properties of ethanol and 

biodiesel can make these fuel blends 

containing them more degrading to 

certain UST system materials than 

petroleum, it is important to ensure that 

all UST system components in contact 

with the biofuel blend are materially 

compatible with that fuel. Industry 

practice has been for owners and 

operators to demonstrate compatibility 

by using equipment certified by an 

independent testing laboratory, such as 

Underwriters Laboratories (UL). 

However, many UST system 

components in use today, with the 

exception of most tanks and piping, 

have not been tested by UL for 

compatibility. Without certification 

from a third party that these equipment 

are compatible with anything beyond 

conventional fuels, the suitability of 

these particular components for use 

with ethanol and biodiesel blends 

comes into question. 

Compatibility of Ethanol-Blended Fuel 

Gasoline containing low percentages 

(10 percent or less) of ethanol has been 

used in parts of the country for many 

years. Many tanks and piping have been 

tested and are listed by UL for 

compatibility with higher-level ethanol 

blends. Many other components of the 

UST system, including leak detection 

devices, seals, and containment sumps 

(for example) may not be listed by UL 

for compatibility with ethanol blends. 

EPA expects recent federal and state 

laws encouraging increased use of 

biofuels to translate into a greater 

number of UST systems storing biofuels, 

as well as a greater number of UST 

systems storing higher percentages of 

biofuel blends. EPA is aware of material 

compatibility concerns associated with 

some UST system equipment storing 

higher ethanol blends, such as E85 

(gasoline containing up to 85 percent 

ethanol), which is an alternative fuel 

used in flexible fuel vehicles. EPA 

understands that in order to avoid 

compatibility issues with E85, many 

tank owners who currently store E85 

either installed all new equipment 

designed to store high level ethanol 

blends or upgraded certain components 

to handle the higher ethanol content. 

Because the typical lifespan of an 

underground storage tank is about 30 

years, most UST systems currently in 

use are likely to contain components 

that were not designed to store ethanol 

blends beyond 10 percent. These older 

systems may not be certified by UL or 

another independent testing laboratory 

for use with these blends. 

Although very little data exists 

pertaining to the compatibility of UST 

equipment with ethanol blends, 

literature suggests that mid-level 

ethanol blends may have the most 

degrading effect on some UST system 

materials. For example, ‘‘Underwriters 

Laboratories Research Program on 

Material Compatibility and Test 

Protocols for E85 Dispensing 

Equipment,’’ which evaluated the effect 

of 85 percent ethanol and 25 percent 

ethanol blends, indicates that some 

materials used in the manufacture of 

seals were degraded more when 

exposed to the 25 percent ethanol test 

fluid than when exposed to the 85 

percent ethanol test fluid (Underwriters 

Laboratories, 2007). Further, 

‘‘Compatibility and Permeability of 

Oxygenated Fuels to Materials in 

Underground Storage and Dispensing 

Equipment’’ (State Water Resources 

Control Board’s Advisory Panel, 1999) 

confirms that alcohol fuel blends are 

‘‘more aggressive toward polymers than 

any of the neat constituents in the fuel,’’ 

and points specifically to 15 percent 

ethanol in gasoline as being the blend at 

which the maximum swelling occurs in 

polymeric materials. Both of these 

documents are available in the UST 

Docket under Docket ID No. EPA–HQ– 

UST–2010–0651. 

In March 2009, EPA received a Clean 

Air Act (CAA) waiver application to 

increase the allowable ethanol content 

of a gasoline-ethanol blended fuel from 

10 volume percent ethanol to 15 volume 

percent ethanol.1 Please note that this 

action under the CAA has no bearing on 

an UST owner or operator’s requirement 

to comply with all applicable EPA UST 

regulations, including the UST 

compatibility requirement in 40 CFR 

280.32. Specifically, in order to ensure 

the safe storage of higher ethanol and 

biodiesel blends under EPA’s UST 

program, owners and operators must 

meet the compatibility requirement for 

UST systems. Recently, EPA 

conditionally granted a partial waiver 

that allows gasoline-ethanol blends that 

contain greater than 10 volume percent 

ethanol up to 15 volume percent ethanol 

(E15) to be introduced into commerce 

for use in 2007 and newer model year 

light-duty motor vehicles, which 

includes passenger cars, light-duty 

trucks and medium-duty passenger 

vehicles such as some sport utility 

vehicles (SUVs).2 If other State, Federal, 

and industry practices also support such 

introduction, E15 may become available 

in the marketplace. Thus, EPA 

anticipates that some UST system 

owners and operators may choose to 

store higher percentages of ethanol in 

their UST systems. For those who 

intend to store E15 or other amounts of 

ethanol greater than 10 volume percent, 

EPA is proposing this guidance to 

clarify the compatibility requirement 

with regard to these blends and provide 

greater flexibility for owners and 

operators who intend to store E15, 

including those whose equipment may 

not be certified as compatible by an 

independent testing laboratory. 

Compatibility of Biodiesel-Blended Fuel 

In addition to ethanol, biodiesel is 

becoming increasingly available across 

the U.S., though its total use is 

significantly less compared to that of 

ethanol-blended gasoline. EPA 

understands that owners and operators 

are storing biodiesel/petroleum diesel 

blends in UST systems, ranging from 

two percent biodiesel (B2) to 99 percent 

biodiesel (B99). In this guidance, EPA 

proposes to include biodiesel blends, 

based on the fact that many states that 

already have compatibility policies in 

place address both ethanol blends and 

biodiesel blends. At least one state 

developed a compatibility policy to 

apply to biodiesel blends greater than 

B5, meaning owners and operators of 

UST systems containing biodiesel/ 

petroleum diesel blends greater than 5 

percent biodiesel must meet the 

requirements in the state’s guidance. 

Other states have selected to use B20 as 

the threshold, since B20 is commonly 

used in government and military fleets. 

EPA is aware that there may be 

material compatibility issues with some 

UST system equipment in biodiesel 

service, but the Agency lacks sufficient 

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70244 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 

data on the compatibility of various 

biodiesel blends with UST system 

equipment currently in use across the 

country. EPA also acknowledges that no 

UST equipment has a UL-listing for use 

with biodiesel blends. UL has issued a 

statement indicating that biodiesel 

blends up to B5 will not require special 

investigation by UL, meaning that these 

fuels may be considered the same as 

conventional petroleum fuels. 

According to UL, biodiesel blends 

greater than 5 percent may have a 

significant effect on materials. For these 

reasons, EPA is seeking comment on 

what percentage of biodiesel in 

biodiesel blends should be used for 

including these fuels in the scope of 

today’s proposed guidance. 

Testing on Ethanol and Biodiesel Blends 

The U.S. Department of Energy is 

currently performing testing on the 

compatibility of some UST system 

materials with mid-level ethanol blends. 

Depending on results of DOE’s research, 

EPA may change its guidance. EPA is 

not aware of a testing program to 

evaluate the compatibility of UST 

system equipment with biodiesel 

blends. 

Applicability of Proposed Guidance 

This guidance clarifies how owners 

and operators of underground storage 

tanks (USTs) can comply with EPA’s 

compatibility requirement (40 CFR 

280.32) when storing certain biofuels 

(ethanol-blended fuels greater than 10 

percent and biodiesel-blended fuels 

greater than [TBD] percent). UST 

owners and operators, as well as other 

affected stakeholders should be aware 

that, when final, EPA’s proposed 

guidance will apply in Indian country 

and in States that do not have State 

program approval (SPA). States that 

have SPA must, in 40 CFR 281.32, have 

a compatibility requirement that is 

similar to the Federal requirement. 

Therefore, SPA states could also find 

this guidance to be relevant and useful 

to them as well. 

Owner and Operator Demonstration of 

Compatibility 

EPA considers the following three 

methods as effective options for 

demonstrating compatibility: 

• Certification or listing by an 

independent test laboratory; 

• Equipment manufacturer approval; 

or 

• Another method determined by the 

implementing agency to sufficiently 

protect human health and the 

environment. 

Implementing agencies may 

determine there are other acceptable 

methods for demonstrating compliance 

with the compatibility requirement, as 

long as they sufficiently protect human 

health and the environment. EPA will 

work with states as they evaluate other 

acceptable methods. 

Some states have developed policies 

similar to EPA’s proposal published 

today. Some examples of state policies 

regarding compatibility of UST 

equipment with biofuels include: 

Iowa: http://www.iowadnr.gov/land/ust/ 

technicalresources/ethanol.html. 

Wisconsin: http://test.commerce.wi.gov/

ER/pdf/bst/Forms_FM/ER-BST-FM-9-

AlternativeFuels.pdf. 

South Carolina:http://www.scdhec.gov/

environment/lwm/forms/d-3885.pdf. 

Colorado: http://www.colorado.gov/cs/

Satellite?blobcol=urldata&blob

header=application%2Fpdf&blob

key=id&blobtable=MungoBlobs&blob

where=1251616370465&

ssbinary=true. 

These documents are also available in 

the UST Docket under Docket ID No. 

EPA–HQ–UST–2010–0651. 

Currently, a note in the Federal UST 

regulations allows owners and operators 

to use the American Petroleum 

Institute’s (API) Recommended Practice 

1626, an industry code of practice, to 

meet the compatibility requirement for 

ethanol-blended fuels. The original 

version of API 1626 (1st ed. 1985, 

reaffirmed in 2000) applies to up to 10 

percent ethanol blended with gasoline 

and is not applicable to meet the 

compatibility requirement for ethanol 

blends greater than 10 percent. In 

August, 2010, API published a second 

edition of API 1626. The second edition 

does address ethanol blends greater than 

10 percent, and may also be used as a 

method for demonstrating compatibility. 

D. Request for Comments 

EPA requests public comment on the 

following issues as well as the proposed 

guidance that immediately follows: 

1—UST Components That May Be 

Affected by Biofuel Blends—A UST 

system comprises many components 

that can be affected by the fuel stored. 

Some of these components may or may 

not come into contact with fuel or lead 

directly to a release. However, the 

failure of these components could either 

directly or indirectly lead to a release if 

they are not compatible. To help owners 

ensure compatibility, EPA proposes 

listing the following equipment, at a 

minimum, to be included in today’s 

proposed guidance to clarify what UST 

system components may be affected by 

biofuel blends: 

• Tank or internal tank lining; 

• Piping; 

• Pipe adhesives and glues; 

• Line leak detectors; 

• Flexible connectors; 

• Fill pipe; 

• Spill and overfill prevention 

equipment; 

• Submersible turbine pump and 

components; 

• Fittings, gaskets, bushings, 

couplings, and boots; 

• Containment sumps (including 

submersible turbine sumps and under 

dispenser containment); 

• Release detection floats, sensors, 

and probes. 

This list of components is consistent 

with lists used by states with 

compatibility policies, though it is 

somewhat less inclusive, since the 

federal UST program does not have 

authority to regulate dispensers or fuel 

quality. 

Although release detection equipment 

and overfill prevention equipment do 

not contain product and failure of these 

components will not directly lead to a 

release, EPA proposes including these 

categories because failure of these 

equipment may lead indirectly to 

releases. For example, a failed leak 

detection device may not detect a 

release that has occurred; similarly, a 

malfunctioning overfill prevention 

device may lead to overfilling of a tank. 

Questions for commenters: 

• Are there components that should 

be added to or removed from the list? 

• Is it possible to demonstrate 

compatibility for these components? 

2—Methods To Demonstrate 

Compatibility—Many tanks and piping 

have been tested and are listed by UL 

for compatibility with ethanol blends. 

EPA considers this to be an effective 

method for demonstrating compatibility. 

However, many other components of the 

UST system may not have been tested 

with ethanol and are not listed by UL 

for compatibility with ethanol blends. In 

addition, no UST equipment is ULlisted for use with biodiesel blends. 

Some existing UST system components 

might be compatible with ethanol or 

biodiesel blends, although the 

equipment may not have a certification 

or listing from an independent testing 

laboratory specific to the fuel blend. As 

a result, EPA is proposing manufacturer 

approval as another acceptable method 

for demonstrating compatibility. Also, 

states may believe that there are other 

reasonable ways to demonstrate 

compatibility. With that in mind, EPA is 

considering providing flexibility for 

states who wish to take a different 

approach for demonstrating 

compatibility, as long as that approach 

sufficiently protects human health and 

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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 70245 

3See 74FR18228 (April 21, 2009). 

4See 75FR68043 (November 4, 2010). 

the environment. EPA proposes to 

recommend the following methods for 

demonstrating compatibility: 

• Certification or listing by an 

independent test laboratory; 

• Equipment manufacturer approval; 

or 

• Another method determined by the 

implementing agency to sufficiently 

protect human health and the 

environment. EPA will work with states 

as they evaluate other acceptable 

methods. 

Although some states allow a 

professional engineer (P.E.) to make a 

compatibility determination, EPA does 

not believe a blanket acceptance of P.E. 

certification is a good approach. There 

are numerous types of P.E.s, any one of 

which is not likely to cover all aspects 

of materials science and UST equipment 

compatibility. Further, states that allow 

this option indicated that it is not being 

used. If additional states consider 

allowing a P.E. to make a compatibility 

determination for UST equipment, EPA 

will discuss that option with those 

states. 

Questions for commenters: 

• Are the methods for demonstrating 

compatibility, as described above, 

appropriate? 

• Are these options feasible for UST 

owners? 

• Are there other reasonable methods 

EPA should include? 

3—Criteria for Equipment 

Manufacturer Approval as a 

Compatibility Method—EPA 

understands that an independent testing 

laboratory certification may be the most 

standardized, consistent, and 

recognizable way to demonstrate 

compatibility. However, EPA wants to 

provide flexibility and is also 

considering relying on a statement of 

compatibility by the manufacturer as a 

secondary method for owners and 

operators, and to demonstrate 

compatibility of their UST equipment. 

EPA is considering numerous forms for 

manufacturer approvals. For example, 

EPA is considering items such as 

product warranties, brochures, or letters 

from manufacturers as acceptable 

equipment manufacturer approvals. 

EPA believes manufacturer approvals 

should include these three criteria in 

order to adequately demonstrate 

compatibility: 

• Be in writing; 

• Indicate affirmative statements of 

compatibility; and 

• Be from the equipment 

manufacturer, not another entity (such 

as the installer or distributor). 

Questions for commenters: 

• Are these three criteria appropriate? 

• Are manufacturers willing and able 

to produce this approval? 

• Are there other tools which might 

assist UST owners to obtain this 

information? 

4—Applicability to Biodiesel Blends— 

EPA proposes to include biodiesel 

blends in its guidance because of the 

increased use of biodiesel across the 

U.S., as well as the fact that many states 

already address biodiesel blends in their 

compatibility policies. EPA understands 

compatibility issues with biodieselblended fuels may be different than 

those experienced with ethanol-blended 

fuels and acknowledges that 

determining a percentage threshold in 

the absence of compatibility data may 

be either unnecessarily stringent or not 

sufficiently protective. However, lack of 

compatibility information for biodiesel 

and biodiesel blends makes it difficult 

to determine whether UST system 

materials and equipment are 

compromised by storing biodiesel 

blends and at what approximate blend 

percentage compatibility problems 

occur. EPA seeks input about the 

percentage of biodiesel where 

compatibility becomes a potential 

concern. 

Questions for commenters: 

• Should EPA include biodiesel 

blends in the guidance? 

• What biodiesel blend percentage 

should EPA use in the guidance? Please 

provide data to support the percentage. 

5—Ability To Demonstrate 

Compatibility Using the Proposed 

Guidance—Due to the long expected 

lifetime of USTs and the high turnover 

rate of owners and operators, EPA 

understands it will be difficult for many 

owners and operators to locate 

documentation for much of their 

equipment. Without knowing what 

equipment is installed at the site, 

demonstrating compatibility may be 

difficult for those who wish to store and 

sell biofuel blends. In addition, some 

equipment may simply not be 

compatible with some biofuel blends. 

Based on the list of UST components 

and methods described above in issues 

1 and 2, respectively, EPA requests 

comment on the following: 

• How difficult will it be for owners 

and operators to demonstrate 

compatibility for each of these 

components? 

• How many UST facilities will not 

be able to demonstrate compatibility 

based on these criteria? 

• What would be necessary for these 

facilities to come into compliance (for 

example, replace seals, replace release 

detection probes, replace the entire UST 

system, etc.)? 

6—Other Options That Sufficiently 

Protect Human Health and the 

Environment—In light of the discussion 

under issue 5 above, EPA recognizes 

that some owners and operators of UST 

system components may not be able to 

demonstrate compatibility or may find it 

difficult to do so. Because of this, EPA 

is seeking input on alternatives that 

would sufficiently protect human health 

and the environment, even though they 

are outside the scope of the proposed 

guidance. For example, there might be 

additional activities owners and 

operators could perform in the absence 

of being able to demonstrate 

compatibility that would result in 

sufficient protection of human health 

and the environment. 

Question for commenters: 

• Without documentation, are there 

alternative methods UST owners and 

operators could rely on or activities they 

could perform that would sufficiently 

protect human health and the 

environment? Please be specific and 

provide data to support your alternative. 

Proposed Guidance 

Guidance on the Compatibility of 

Underground Storage Tank Systems 

With Ethanol Blends Greater Than Ten 

Percent and Biodiesel Blends Greater 

Than [To Be Determined (TBD)] Percent 

[Insert Date] 

This guidance clarifies how owners 

and operators of underground storage 

tanks (USTs) can comply with EPA’s 

compatibility requirement (40 CFR 

280.32) when storing certain biofuels 

(ethanol-blended fuels greater than 10 

percent and biodiesel-blended fuels 

greater than [TBD] percent). EPA 

promulgated this requirement (and all 

other UST requirements) under the 

authority of Subtitle I of the Solid Waste 

Disposal Act, as amended. 

In March 2009, EPA received a Clean 

Air Act (CAA) waiver application to 

increase the allowable ethanol content 

of a gasoline-ethanol blended fuel from 

10 volume percent ethanol to 15 volume 

percent ethanol.3 EPA recently 

conditionally granted a partial waiver 

that allows gasoline-ethanol blends that 

contain greater than 10 volume percent 

ethanol up to 15 volume percent ethanol 

(E15) to be introduced into commerce 

for use in 2007 and newer model year 

light-duty motor vehicles, which 

includes passenger cars, light-duty 

trucks and medium-duty passenger 

vehicles such as some sport utility 

vehicles (SUVs).4 If other state, federal, 

and industry practices also support such 

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70246 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Notices 

introduction, E15 may become available 

in the marketplace. Thus, EPA 

anticipates that some UST system 

owners and operators may choose to 

store higher percentages of ethanol in 

their UST systems. 

Please note that this action under the 

CAA has no bearing on an UST owner 

or operator’s requirement to comply 

with all applicable EPA UST 

regulations, including the UST 

compatibility requirement in 40 CFR 

280.32. Specifically, in order to ensure 

the safe storage of higher ethanol and 

biodiesel blends under EPA’s UST 

program, owners and operators must 

meet the compatibility requirement for 

UST systems. 

40 CFR 280.32 states that ‘‘[o]wners 

and operators must use an UST system 

made of or lined with materials that are 

compatible with the substance stored in 

the UST system.’’ Because the chemical 

and physical properties of ethanol and 

biodiesel blends may make them more 

aggressive to certain UST system 

materials than petroleum, it is important 

to ensure that all UST system 

components in contact with biofuels are 

materially compatible with that fuel. 

UST System Components That May Be 

Affected by Biofuel Blends 

To meet § 280.32, owners and 

operators of UST systems storing 

ethanol-blended fuels greater than 10 

percent ethanol or greater than [TBD] 

percent biodiesel must use compatible 

equipment. At a minimum, the 

following UST system equipment must 

be compatible: 

• Tank or internal tank lining; 

• Piping; 

• Pipe adhesives and glues; 

• Line leak detectors; 

• Flexible connectors; 

• Fill pipe; 

• Spill and overfill prevention 

equipment; 

• Submersible turbine pump and 

components; 

• Fittings, gaskets, bushings, 

couplings, and boots; 

• Containment sumps (including 

submersible turbine sumps and under 

dispenser containment); 

• Release detection floats, sensors, 

and probes. 

Options for Meeting the Compatibility 

Requirement 

Currently, EPA believes that the most 

effective options for owners and 

operators of UST systems storing 

ethanol-blended fuels greater than 10 

percent ethanol and biodiesel-blended 

fuels greater than [TBD] percent 

biodiesel to ensure compatibility under 

this requirement are: 

• Use components that are certified or 

listed by an independent test laboratory 

for use with the fuel stored (for 

example, Underwriters Laboratories); 

• Use components approved by the 

manufacturer to be compatible with the 

fuel stored. EPA considers acceptable 

forms of manufacturer approvals to be: 

Æ Be in writing; 

Æ Indicate an affirmative statement of 

compatibility; and 

Æ Be from the equipment 

manufacturer, not another entity (such 

as the installer or distributor); or 

• Use another method determined by 

the implementing agency to sufficiently 

protect human health and the 

environment. EPA will work with states 

as they evaluate other acceptable 

methods. 

Note About Using API 1626 To Meet the 

Compatibility Requirement 

Currently, a note in the federal UST 

regulations allows owners and operators 

to use the American Petroleum 

Institute’s (API) Recommended Practice 

1626, an industry code of practice, to 

meet the compatibility requirement for 

ethanol blended fuels. The original 

version of API 1626 (1st ed. 1985, 

reaffirmed in 2000) applies to up to 10 

percent ethanol blended with gasoline 

and is not applicable to meet the 

compatibility requirement for ethanol 

blends greater than 10 percent. In 

August 2010, API published a second 

edition of API 1626. The second edition 

does address ethanol blends greater than 

10 percent, and may also be used as a 

method for demonstrating compatibility. 

Please note that state underground 

storage tank program regulations may be 

more stringent than the federal UST 

regulations, so owners and operators 

should always check with their states 

about state program requirements. Also, 

this guidance will apply in Indian 

country and in states that do not have 

state program approval (SPA). Because 

states with SPA must have a 

compatibility requirement that is similar 

to the federal compatibility requirement, 

SPA states could find this guidance 

relevant and useful to them as well. 

If you have questions about this 

guidance, please contact Andrea 

Barbery at barbery.andrea@epa.gov or 

(703) 603–7137. 

Dated: November 8, 2010. 

Mathy Stanislaus, 

Assistant Administrator, Office of Solid Waste 

and Emergency Response. 

[FR Doc. 2010–28968 Filed 11–16–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OPPT–2010–0681; FRL–8850–6] 

Lead Fishing Sinkers; Disposition of 

TSCA Section 21 Petition 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice. 

SUMMARY: On August 3, 2010, several 

groups filed a petition under the Toxic 

Substances Control Act (TSCA) section 

21 requesting that EPA prohibit under 

TSCA section 6(a) the manufacture, 

processing, and distribution in 

commerce of (1) lead bullets and shot; 

and (2) lead fishing sinkers. On August 

27, 2010, EPA denied the first request 

due to a lack of authority to regulate 

lead in bullets and shot under TSCA. 

EPA’s decision was based on the 

exclusion of shells and cartridges from 

the definition of ‘‘chemical substance’’ 

in TSCA section 3(2)(B)(v). On 

November 4, 2010, EPA denied the 

second request. This notice explains 

EPA’s reasons for the denial of the 

request specific to fishing sinkers. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Christina 

Wadlington, National Program 

Chemicals Division (7404T), Office of 

Pollution Prevention and Toxics, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(202) 566–1859; e-mail address: 

wadlington.christina.@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; e-mail address: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general. This action may, however, be 

of interest to you if you manufacture, 

process, import, or distribute in 

commerce lead fishing sinkers or lead 

fishing tackle. If you have any questions 

regarding this action, consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

B. How can I get copies of this document 

and other related information? 

EPA has established a docket for this 

action under docket identification (ID) 

number EPA–HQ–OPPT–2010–0681. 

All documents in the docket are listed 

in the docket index available at http:// 

www.regulations.gov. Although listed in 

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