g Officer, Office ofthe Secretary

Department ofNatural Resources and Environmental Control

RE: Proposed Amendment to 7 DE Admin. Code 1141, Limiting Emissions of

Volatile Organic Compounds from Consumer and Commercial Products.

Section 3.0, “Portable Fuel Containers”, and a corresponding revision to

the Delaware State Implementation Plan (SIP) for attainment of ground level ozone standard

DATE: February 26, 2010

I. Background:

A public hearing was held on Tuesday, January 5, 2010, at 6:00 p.m. at the

DNREC’s Priscilla Building, 156 S. State Street, Dover, Delaware, to receive comment

on proposed amendments to 7 DE Admin. Code 1141, Limiting Emissions of Volatile

Organic Compounds from Consumer and Commercial Products, Section 3.0, “Portable

Fuel Containers”, and a corresponding revision to the Delaware State Implementation

Plan (SIP) for attainment of ground level ozone standard. Delaware adopted Section 3.0

of 7 DE Admin. Code 1141 in January of 2001 in order to reduce volatile organic

compound (“VOC”) emissions from portable fuel containers (otherwise known as gas

cans).

Effective January 1, 2009, the EPA began to regulate emissions from portable fuel

containers under Federal Rule, to wit: 72 FR 8428’. The Federal Rule provides for better

1 72 FR 8428 (February 26, 2007), “Control of Hazardous Air Pollutants From Mobile Sources”, Final Rule.
Federal Rule to control emissions from this source.

Additionally, DNREC proposed to make a corresponding revision to its ozone

State Implementation Plan (SIP), in which DNREC demonstrates that the above proposed

revision to Section 3.0 of 7 DE Admin. Code 1141 and the reliance upon the new Federal

Rule will not adversely impact efforts from attaining the ozone air quality standard.

It should be noted that no public comments were received by the Department with

regard to this proposed promulgation. Proper notice of the hearing was provided as

required by law.II. Summary of Hearing Record:

At the time ofthe hearing on January 5, 2010, Gene Pettingill ofthe Department’s

Air Quality Management (AQM) Section of the Divisions of Air and Waste Management

(DAWM), offered the Department’s eight exhibits pertaining to these proposed

amendments, and this Hearing Officer entered them into the formal hearing recorddeveloped in this matter. Included within those Departmental exhibits were copies of the

Start Action Notice for this promulgation, copies of the legal notices regarding the

holding of this public hearing on January 5, 2010, a copy of 72 FR 8428, a copy of the

EPA Draft Regulatory Impact Analysis 2,and copies of the actual proposed amendments

to both 7 DE Admin. Code 1141, Section 3.0 and Delaware’s ozone State ImplementationPlan (SIP).

2
that the Department adhered to all appropriate Delaware

statutes and the regulatory development process in this matter, and that the Department

has met the required public notice obligations regarding these proposed amendments. It

should also be noted that the Department has reviewed this proposed amendment in the

light of the Regulatory Flexibility Act, and believes the same to be lawfiul, feasible and

desirable, and that the recommendations as proposed should be applicable to all Delaware

citizens equally.

III. Conclusions and Recommendations:

Based on the record developed in this matter, I conclude that the Department has

provided appropriate reasoning regarding the need for these proposed amendments to 7

DE Admin. Code 1141, Section 3.0, as well as the need for the corresponding revision to

its ozone SIP, which demonstrate that this promulgation and reliance on the new Federal

Rule will not adversely impact efforts from attaining the ozone air quality standard.

Accordingly, I recommend promulgation ofthese proposed amendments in the customary

manner provided by law.

Further, I recommend the following findings:

1. The Department has jurisdiction under its statutory authority, 7 Del.C.,

Chapter 60, to make a determination in this proceeding;

2 Draft Regulatory Impact Analysis: “Control of Hazardous Air Pollutants from Mobile Sources”, EPA42O-D-06-004, Feb., 2006.

3
4. The Department has reviewed these proposed amendments in the light of the

Regulatory Flexibility Act, and believes the same to be lawful, feasible and

desirable, and that the recommendations as proposed should be applicable toall Delaware citizens equally;

5. Promulgation of these proposed amendments will eliminate the applicability

of 7 DE Admin. Code 1141, Section 3.0 to portable fuel containers

manufactured on and after January 1, 2009, and will allow Delaware to rely

solely upon Federal Rule 72 FR 8428 to control emissions from this source;

6. Reliance solely upon Federal Rule 72 FR 8428 will enable Delaware to more

efficiently and effectively reduce VOC emissions from portable fuel

containers, as the Federal Rule provides for better VOC emission control ofsaid containers and therefore achieves greater VOC emission reductions than

the current Delaware regulation;

7. The Department’s corresponding revision to its ozone SIP will demonstrate

that this promulgation and the reliance on the Federal Rule will not adversely

impact Delaware’s efforts for attaining the ozone air quality standard;

8. The Department has an adequate record for its decision, and no further public

hearing is appropriate or necessary;

4
Consequently, they should be approved as a fmal regulation, which shall go

into effect ten days after their publication in the next available issue of the

Delaware Register ofRegulations;

10. The Department shall submit the proposed regulation amendments as final to

the Delaware Register of Regulations for publication in its next available

issue, and shall provide written notice to the persons affected by the Order.

Iahear/Reg. 1141 .Amndmt.Sect.3.O.201 0

Hearing Officer

5

APPENDIX “A”

order to reduce volatile organic compound (VOC) emissions from portable fuel containers (i.e., gas

cans). Effective January 1, 2009 the EPA began to regulate emissions from portable fuel containersunder 37 FR 8428. This federal rule provides for better emission control of portable fuel containers,

and achieves greater VOC cmission reductions than does the current Delaware regulation. AS such.

DNREC proposes that 3.0 of 7 DE Admin. Code 1141 be repealed, and that Delaware rely on the

federal rule to control emissions from this source.

Also, DNREC proposes to make a corresponding revision to its ground-level ozone state

implementation plan (SIP) that demonstrates the repeal of Section 3.0 of 7 DE Admin. Code 1141

and the reliance on the new federal rule will not adversely impact Delaware’s efforts for attaining theozone air quality standard.

3. Statutory 8asis: 7 Del. C. Chapter 60. Environmental Control.

4. Likely Affected Public: The federal rule covering portable fuel containers has been in effect since

January 1, 2009. This action will clarify that the now obsolete Delaware requirements no longer

apply, which will benefit any person, who sells, supplies, offers for sale or manufactures for sale any

portable fuel container, kerosene can or utility jug for transporting fuel in the State of Delaware.

5. Proposed Schedule of Activities: Public Hearing

Effective Date

Summer 2009

Fall 2009

6. Review Committee: A review committee will not be formed as the Department believes that the

normal public notice and hearing process will provide ample and adequate opportunities for public

education, review and comment

7. Responsible Staff Member: Frank Gao

Air Quality Management

715 Grantham Lane

New Castle, DE 19720

Email: frank.gatate.dc.us

Phone: (302) 323-4542

Fax: (302) 323-4598

8. Approvals:

Date

/Frank Gao /

Responsible Staff Member

05/27/2009

Date D/i’Director’

. Title of the Regulation:

To amend 7 DE Admin. Code 1141 ‘Limiting Emissions of Volatile Organic Compounds from Consumer and

Commercial Prod ucts’ by r evising Section 3 .0 ‘Por table Fue I Co ntainers,” and to re vise Dela ware S tate

Implementation Plan (SIP) for attainment of ground-level ozone standard.

2. Brief Synopsis of the Subject, Substance and Issues:

Delaware adopted Section 3.0 of 7 DE Admin. Code 1141 in January 2001 in order to reduce volatile organic compound (VOC) emissions from portable fuel containers (i.e., gas cans). Effective January 1, 2009, the EPA

began to regulate emissions from portable fuel containers under a federal rule (37 FR 8428). The federal rule

provides for better emission control of portable fuel containers, and therefore achieving greater VO C e mission

reductions than the current Delaware regulation. As such, DNREC proposes that 3.0 of 7 DE Admin. Code 1141

not apply to portable fuel containers manufactured on and after January 1, 2009, and that Delaware rely on the federal rule to control emissions from this source. -

Also, DNREC proposes to make a corresponding revision to its ozone SIP, demonstrating that the revision to

Section 3. 0 of 7 DE Admin. Code 1141 and th e reliance o n th e new federal r ule w ill not adversely im pact Delaware’s efforts for attaining the ozone air quality standard.

3. Possible Terms Of The Agency Action:

None.

V

4. Statutory Basis or Legal Authority To Act:

7 Del.C. Chapter 60, Environmental Control.

5. Other Regulations that may be Affected by the Proposal:

None.

6. Notice of Public Comment:

The revised Section 3.0 of 7 DE Admin Code 1141 and the proposed ozone SIP revision are available for

public review at DNREC’s Air Quality Management Section (AQMS) offices in both Dover and New Castle. A

public hearing will be held on January 5, 2010, beginning at 6:00 pm, in AQMS Con ference Room, 2 Floor,

Priscilla Building, 156 South State Street, Dover, DE 19901. Comments on the regulation revision and the related

SIP revision can be sent to AQMS at the above address, or presented at the hearing.

7. Prepared By:

Frank F. Gao, Phone: (302) 323-4542 Date: October 29, 2009

E-Mail: Frank.Gao@state.de.us

1141 Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products

(Break in Continuity of Sections)

DELAWARE REGISTER OF REGULATIONS, VOL. 13, ISSUE 6, TUESDAY, DECEMBER 1, 2009
3.1.1.2 Portable fuel containers with a nominal capacity less than or equal to one quart.

3.1.1.3 Rapid refueling devices with nominal capacities greater than or equal to four gallons provided

such de vices are designed fo r use in officially sa nctioned off-highway motorcyclecompetitions, and either create a leak-proof seal against a stock target fuel tank or are

designed to operate in conjunction with a receiver permanently installed on the target fuel

tank.

3.1.1.4 Portable fuel tanks manufactured specifically to deliver fuel through a hose attached between

the portable fuel tank and an outboard engine for the purpose of operating that outboard

engine.

3.1.2 Compliance with the requirements of 3.0 of this regulation does not exempt any spill-proof system

or spill-proof spout from compliance with other applicable Federal or State requirements.

3.1.3 The requirements of 3.0 of this regulation apply on and after January 1, 2003, to any portable fuel

container or spo ut or both p ortable fu el container a nd spout ma nufactured b etween before

January 1, 2003 and December31. 2008. inclusive, except that any portable fuel container or

-, spout or both portable fuel container and spout manufactured before January 1, 2003 that does

not meet the requirements of 3.0 of this regulation, may be sold, supplied, or offered for sale until

January 1, 2004, provided that the date of manufacture or a date code, representing the date of

manufacture, is clea rly displa yed on th e pa rtable fuel con tamer o r spout. Note: Port able fuel

containers became reaulated under federal regulation 37 FR 8428 effective January 1, 2009.

3.1.4 Any person subject to any requirement of 3.0 of this regulation may comply with an alternative

control plan that has been approv ed by the Department and the U. S. EPA as part of Delaware’s

State Implementation Plan.

3.2 Definitions.

For the purpose of 3.0 of this regulation, the following definitions apply:

“Fuel” means a hydrocarbon mixture used to power any spark ignition internal combustion engine.

“Manufacturer” me ans an y p erson who imports, m anufactures, produces, a ssembles, p ackages,

repackages, or re-labels a portable fuel container or spout or both portable fuel container and spout.

“Nominal capacity” means the volume, indicated by the manufacturer that represents the maximum

recommended filling level.

“Outboard engine” means a spark-ignition marine engine that, when properly mounted on a marine

watercraft in the operating position, houses the engine and drive unit external to the hull of the marine

watercraft.

“Permeation” means the process by which individual fuel molecules may penetrate the walls and

various- assembly components of a portable fuel container directly to the outside ambient air.“Person” means any individual, public or private corporation, political subdivision, government agency,

department or bureau of the State, municipality, industry, co-partnership, association, firm, estate or

any legal entity whatsoever.

“Portable fuel container” means any container or vessel with a nominal capacity of ten gallons or less

that is intended for reuse and that is designed or used primarily for receiving, transporting, storing, and

dispensing fuel.

“Spill-proof spout” means any spout that complies with all of the performance standards specified in

3.3.2 of this regulation.

DELAWARE REGISTER OF REGULATIONS, VOL. 13, ISSUE 6, TUESDAY, DECEMBER 1,2009
fuel container (or containers) and spout (or spouts) for use in the State of Delaware which does

not:

3.3.1.1 Have an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

3.3.1.2 Automatically close and seal when removed from the target fuel tank, and remain completely closed when not dispensing fuel.

3.3.1.3 Have only one opening for both filling and pouring.

3.3.1.4 Provide a fuel flow rate and fill level of:

3.3.1.4.1 not less than one-half gallon per minute for portable fuel containers with a no minal

capacity of:

3.3.1.4.1.1 less than or equal to 1.5 gallons and fills to a level less than or equal to one inch

below the top of the target fuel tank opening; or

3.3.1.4.1.2 greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a 1ev el

less than or equal to one inch below the top of the target fuel tank opening if the spill- proof system clearly displays the phrase “Low Flow Rate” in type of 34 point or greater

on each spill-proof system or label affixed thereto, and on the accompanying package, if any; or

3.3.1.4.2 not less tha n on e ga lion p er minute for po rtable fue I containers with a no minal

capacity greater than 1.5 gallons but less than or equal to 2.5 ga lions and fills to a

level less than or equal to 1.25 inches below the top of the target fuel tank opening; or,

3.3.1.4.3 not less than two gallons per

m mute for portable fuel containers with a nominal

capacity greater than 2.5 gallons.

3.3.1.5 Meet a permeation rate of 0.4 grams per gallon per day or less.

3.3.1.6 Have a warranty from the manufacturer for a period of not less than one year against defects in materials and workmanship.

3.3.2 No person subject to the requirements of 3.0 of this regulation shall sell, supply, offer for sale, or manufacture for sale any spout for use in the State of Delaware, which does not:

3.3.2.1 Have an automatic shut-off that stops the fuel flow before the target fuel tank overflows.

3.3.2.2 Automatically close and seal when removed from the target fuel tank, and remain completely closed when not dispensing fuel.

3.3.2.3 Provide a fuel flow rate and fill level of:

3.3.2.3.1 not less than one-half gallon per mm ute for portable fuel containers with a no minal

capacity of:

3.3.2.3.1.1 less than or equal to 1.5 gallons and fills to a level less than or equal to one inch

below the top of the target fuel tank opening; or,

3.3.2.3.1.2 greater than 1.5 gallons but less than or equal to 2.5 gallons and fills to a level less

than or equal to one inch below the top of the target fuel tank opening if the spill-proof

spout clearly displays the phrase “Low Flow Rate” in type of 34 point or greater on the

accompanying package, or for spill-proof spouts sold without packaging, on either the

spill-proof spout or a label affixed thereto; or,

3.3.2.3.2 not less tha n on e ga lion p er minute for po rtable fue I containers with a no minal

capacity greater than 1.5 gallons but less than or equal to 2.5 ga lions and fills to a

level less than or equal to 1.25 inches below the top of the target fuel tank opening; or,

DELAWARE REGISTER OF REGULATIONS, VOL. 13, ISSUE 6, TUESDAY, DECEMBER 1, 2009
p

for as long as the product is available for sale in Delaware, and test results shall be made available to

the Department within 60 days of request.

3.4.1 The following tests shall be carried out to determine compliance with 3.3.2 of this regulation prior

to the product being manufactured for sale in Delaware:

3.4.1.1 “Test Method 510, Automatic Shut-Off Test Procedure for Spill-Proof Systems and Spill-Proof

Spouts” ad opted by California Air Res ources Board (CAR B) on July 6, 2000. Th is test

method is hereby adopted by reference.

3.4.1.2 “Test Method 511, Automatic Closure Test Procedure for Spill-Proof Systems and Spill-Proof

Spouts” adopted by CARB on July 6, 2000. This test method is her eby a dopted by

reference.

3.4.1.3 “Test Method 512, Determination of Fuel Flow Rate for Spill-Proof Systems and Spill-Proof

Spouts” adopted by CARB on July 6, 2000. This test method is her eby a dopted by

reference.

3.4.2 The following tests shall be carried out to determine compliance with 3.3.1 of this regulation prior

to the product being manufactured for sale:

3.4.2.1 All of the test procedures stated in 3.4.1 of this regulation.

3.4.2.2 “Test Method 513, D etermination of Permeation Rate for Spill-Proof Systems,” adopted by

GARB on July 6, 2000. This test method is hereby adopted by reference.

3.5 Administrative Requirements.

3.5.1 Any manufacturer subject to the requirements of 3.3.1 of this regulation shall clearly display on

each spill-proof system:

3.5.1.1 the phrase “Spill-Proof System”;

3.5.1.2 a date of manufacture or representative date code; and

3.5.1.3 a representative code identifying the portable fuel container or portable fuel container and

spout as subject to and complying with the requirements of 3.3.1 of this regulation.

3.5.2 Any person subject to the requirements of 3.3.2 of th is regulation shall clea ny display on the

accompanying package, or for spill-proof spouts sold without packaging, on either the spill-proofspout or a label affixed thereto:

3.5.2.1 the phrase “Spill-Proof Spout”;

3.5.2.2 a date of manufacture or representative date code; and

3.5.2.3 a representative code identifying the spout as subject to and complying with the requirements

of 3.3.2 of this regulation.

3.5.3 Any manufacturer subject to 3.5.1 or 3.5.2 or both 3.5.1 and 3.5.2 of this regulation shall file an

explanation of bo th th e d ate cod e an d re presentative co de wit h t he De partment p nor t o

manufacturing the product for sale in the State of Delaware.

3.5.4 Any person subject to 3.5.1 or 3.5.2 or both 3.5.1 and 3.5.2 of this regulation shall clearly display a

fuel flow rate on eac h spill-proof system or spill-proof spout, or label affixed thereto, and on any

accompanying package.

3.5.5 Any person subject to 3.5.2 of th is regulation shall clearly display the make, model number, and

size of those portable fuel containers the spout is designed to accommodate.

DELAWARE REGISTER OF REGULATIONS, VOL. 13, ISSUE 6, TUESDAY, DECEMBER 1, 2009
system, on the system or on a label affixed thereto, and on the accompanying package, if

any; and

3.5.7.2 For a spill-proof spout sold separately from a spill-proof system, on either the spill-proof spout,

or a label affixed thereto, and on the accompanying package, if any.

5 DE Reg. 1497 (01!01I02)

5 DE Reg. 1759 (03101102)

5 DE Reg. 1125 (11I01I02)

10 DE Reg. 868 (11/01/06)12 DE Reg. 347 (09101/08)

DIVISION OF AIR AND WASTE MANAGEMENT

TANK MANAGEMENT BRANCH

Statutory Authority: 7 Delaware Code, Chapters 60 and 74 (7 DeLC. Ch. 60 & 74)

7 DE Admin. Code 1351

SAN # 2008-20 and 2008-23

1. Title of the Regulations:

1351 Delaware Regulations Governing Underground Storage Tank Systems

2. Brief Synopsis of the Subject, Substance and Issues:

The Delaware Regulations Governing Underground Storage Tank Systems were first effective July 11, 1986.

The most recent revision date is January 11, 2008. The DNREC is proposing changes to the UST Regulations to incorporate federal requirements, to add clarifying lang uage, and to ensure the greatest p rotection of h uman

health, safety and the environment in Delaware.

The changes to the Delaware UST Regulations are proposed for the following reasons:

• Addition of requirements for a Tank Operator training program are required by the Federal Energy Pol

icy Act of 2005 (EPACT). The EPACT requires the state to promulgate regulations by August 8, 2009.

• Requirements prohibiting the installation of new USTs within specific distances of public, industrial and

domestic wells have been added to ensure protection of drinking water supplies.

• Clarification language added to specific sections in response to public comment requesting such.

• Corrections to errors in January 11, 2008 edition of the UST Regulations

• Corrections and Additions to conform to Federal requirement that State regulations are at least as

stringent as the Federal UST regulations

3. Possible Terms of the Agency Action:

None

DELAWARE REGISTER OF REGULATIONS, VOL. 13, ISSUE 6, TUESDAY, DECEMBER 1, 2009