ENCLOSURE 5: 

LIST OF WITNESSES, COMMENTS RECEIVED, AND 

VERMONT'S RESPONSE TO COMMENTS 
VERMONT 

Vermont Department of Environmental Conservation Agency of Natural Resources 

RESPONSIVENESS SUMMARY 

PROPOSED AMENDMENTS TO AIR POLLUTION CONTROL REGULATION 

§ 5-221(1): SULFUR LIMITATIONS IN FUEL; 

AND REVISIONS TO VERMONT'S STATE IMPLEMENTATION PLAN (SIP) 

August 8, 2011 

List of Commenters: 

1 . Anne Arnold, Manager, Air Quality Planning Unit, U.S . Environmental Protection 

Agency, Region 1 

2 . Marla Benyshek, Director, Fuels Regulatory Issues, ConocoPhillips 

Summary of Comments and Responses: 

[The commenter is identified by the number in the bracket following the comment.] 

1 . Comment: The effective dates of the new sulfur limits should be July 1, as set forth in 

recent legislation, and not January 1, as set forth in the proposed rule. [2] 

Response: The Agency agrees with the commenter. On May 25, 2011, the State of 

Vermont adopted a new law that establishes limits on the sulfur content of No. 2 

distillate heating oil . See Act No. 47, sec. 19 (to be codified at 10 V.S .A. § 585). While 

the sulfur limits mandated by the new law are consistent with those in the proposed 

rule, the compliance dates differ . The proposed rule provided that No. 2 distillate oil 

shall have a sulfur content of 500 parts per million (ppm) or less on or before January 1, 

2014, and a sulfur content-of 15 ppm or less by January 1, 2018. However, Act 47 

requires that No. 2 distillate heating oil shall have a sulfur content of 500 ppm or less on 

or before July 1, 2014, and a sulfur content of 15 ppm or less by July 1, 2018. Therefore, 

in accordance with Act 47, the Agency is changing the January 1 compliance dates for 

No. 2 distillate oil to July 1 in the final proposed rule. For consistency purposes, the 

Agency is also changing the compliance dates for residual oils from January 1, 2018 to 

July 1, 2018 in the final proposed rule. 

2. Comment: The proposed sulfur limit of 5000 ppm for No. 5 and. No. 6 residual oils is 

too stringent to meet by 2014. Sulfur removal from residual fuels is technologically 

difficult and extremely costly and dilution is not a viable solution. The sulfur limit for 
No. 5 and No . 6 residual oils should be removed from the proposal, or, if sulfur 

reduction is deemed necessary, a more modest reduction to 7000 ppm should be 

considered for No. 5 and No. 6 residual oils . [2] 

Response: The commenter mistakenly identified the effective date of the proposed 

sulfur limit for No. 5 and No. 6 residual oils as 2014. The proposed rule provided that 

No. 5 and No. 6 residual oils shall have a sulfur content limit of 0.5% by weight (5000 

ppm) on or before January 1, 2018 . In addition, as discussed above, the effective dates 

for all of the proposed sulfur content limits are being revised from January 1 to July 1 in 

the final proposed rule. Thus, the final proposed rule provides that No. 5 and No. 6 

residual oils shall have a sulfur content of 0.5% by weight (5000 ppm) or less by July 1, 

2018. In other words, the date for complying with the proposed sulfur content limit for 

No. 5 and No. 6 residual oils is nearly seven years from now. 

The commenter requests that the sulfur limits for No. 5 and No. 6 residual oils be 

removed from the rule because sulfur removal from residual fuels is technologically 

difficult and extremely costly . While the comment describes why the commenter 

believes dilution is not a viable solution, the commenter provided no information as to 

the technological difficulties and costs associated with removing sulfur from residual 

oil. In addition, the Agency did not receive any such information or similar comments 

from other suppliers or refineries. The commenter alternatively requests that the limit 

for No. 5 and No. 6 fuels be raised from 5000 ppm to 7000 ppm. Yet, the commenter 

provided no background or supporting information as to the technological feasibility of 

7000 ppm versus 5000 ppm or the cost differential . Once again, the Agency did not 

receive any such information or similar comments from other suppliers or refineries. 

The 5000 ppm sulfur content limit for No. 5 and No. 6 residual oils proposed by 

Vermont is part of a regional strategy among Northeast and Mid-Atlantic states to 

reduce haze and improve visibility throughout the region. This regional strategy is also 

expected to provide substantial public health benefits by reducing S02, NOx, and PM 

emissions. Each state in the Mid-Atlantic Northeast region has stated its intention to 

adopt the sulfur limits that Vermont is proposing to adopt in this rulemaking. Vermont 

will continue to coordinate with the other states in the region and to monitor the sulfur 

limits and effective dates adopted by the other states in the region. Further, the Agency 

is committed to reviewing any information regarding the technological difficulties and 

costs associated with adopting a sulfur limit of 5000 ppm for No. 5 and No. 6 residual 

oils that is provided to the Agency. If warranted based on the limits established by 

other states in the region and/or information provided to the Agency, there is ample 

time to amend the rule between now and July 1, 2018. However, for all of the reasons 

stated above, the Agency is retaining the proposed sulfur limits for No. 5 and No. 6 

residual oils in the final proposed rule. 

3. Comment: The provision in section 5-221(1)(b) of the proposed rule, which allows 

existing stocks of fuel to continue to be stored, used, and sold after the effective dates of 

the applicable sulfur content limits, is problematic as it creates an incentive for 

stockpiling large reserves of higher sulfur content fuels . This provision should not be 
adopted. If, however, Vermont determines that an allowance for use of stored reserves 

is necessary with respect to the rule's first compliance date, such exemption should 

only be allowed for a limited time period, such as a year. [1] 

Response : The commenter suggests that the exemption in §5-221(1)(b) would cause a 

problem by creating an incentive for stockpiling "large reserves of higher sulfur content 

fuels." The Agency believes this concern is unwarranted considering the available fuel 

oil storage capacity in Vermont. Tier 2 reporting data and other data collected by the 

Agency indicate that there are approximately 74 bulk plants in the state with fuel oil 

storage above ground, below ground, or both. Total storage capacity in the 

underground storage tanks is as follows : 

" #2 fuel oil - 550,000 gallons 

" Diesel - 65,000 gallons 

" Kerosene - 72,000 gallons 

It is likely the majority of bulk plant and other storage capacity is above ground. There 

is only one terminal facility in the state that stores fuel oil : Global Companies, LLC, 

Burlington. Global has nine tanks of various sizes for #2 fuel oil storage with a total 

capacity of 10.2 million gallons. While exact data is not available, the storage capacities 

at bulk plants for #2 oil, diesel and kerosene are much smaller. The Agency is aware of 

one larger bulk plant that has a total storage capacity of -345,000 gallons . The total 

capacities of the other bulk plants appear to range from 60,000 to 200,000 gallons 

each. Considering that there is only one fuel oil terminal in Vermont and that the 

number and capacities of bulk plants in the state are relatively small, the Agency does 

not believe that "large reserves" of fuel oil would be stockpiled in Vermont under this 

exemption. 

Furthermore, there is a practical reason that the Agency believes this exemption is 

necessary. Several large industrial and institutional facilities in the state, including 

IBM in Essex and UVM in Burlington, burn natural gas in their boilers with oil used as a 

backup fuel . These facilities, and others like them, only have oil delivered infrequently 

and may not consume an entire oil shipment for two or three years. Except for small 

amounts of diesel used for periodic testing of emergency generators, during some 

winters IBM may not burn any oil, and UVM may only burn oil for two or three weeks 

during the winter when the gas supply is interrupted. Since these facilities only burn 

small quantities of oil each year, if any, allowing them to store and use the oil after the 

effective dates of the limits in the rule would not cause a significant air quality impact. 

Consequently, forcing such facilities to remove or dilute their remaining stocks of 

stored fuel oil in order to meet the new sulfur content limits would create an 

unjustified economic burden on these facilities. 

For the above reasons, the Agency does not believe the exemption in §5-221(1)(b) will 

cause the potential for large stockpiling of oil as envisioned by the commenter, nor will 
use of any "stockpiled" oil create a significant air quality impact. Moreover, a one year 

or other time limit on the exemption is not feasible, as explained above. 

In response to concerns raised by the Legislative Committee on Administrative 

Rules, please note that the following changes were made to § 5-221(1)(b) after the 

Responsiveness summary was finalized: 

Notwithstanding the provisions of subsection (1)(a) of this section, fuel 

stored in Vermont that met the applicable maximum sulfur content limit at 

the time the fuel was stored in Vermont may continue to be stored, used, 

efferedf6r- sale ; sold-, delivered or exchanged in trade after the effective 

date of the applicable limit in subsection (1)(a) of this section but may not 

be offered for sale or sold. 

These edits were made to ensure consistency with 10 V.S.A. § 585(b)(1) and (2), 

which prohibit the sale in Vermont of "heating oil" after certain dates unless the 

oil's sulfur content meets specified limits., 

4. Comment: Section 5-221(1)(d) of the proposed rule, which discusses the ability of the 

Secretary to temporarily suspend implementation and enforcement of the rule due to 

inadequate supplies, should require EPA approval of temporary suspensions, should 

not allow for open-ended exemptions, and should establish criteria for issuing 

suspensions. [1] 

Response: As proposed, section 5-221(d) provided: "The Secretary, by order, may 

temporarily suspend the implementation and enforcement of subsection (1) (a) of this 

section if the Secretary determines, after consulting with the commissioner of public 

service, that meeting the requirements is not feasible due to an inadequate supply of 

the required fuel ." However, since the Agency proposed this language, the State of 

Vermont enacted a new law, as discussed above, that mandates limits on the sulfur 

content of heating oil. The new law also states : "The governor, by executive order, may 

temporarily suspend the implementation and enforcement of [the sulfur limits] . . . if the 

governor determines, after consulting with the secretary and the commissioner of 

public service, that meeting the requirements is not feasible due to an inadequate 

supply of the required fuel ." Act No. 47, sec. 19 (to be codified at 10 V.S .A. § 585). 

Therefore, the Agency is revising section 5-221(d) to mirror the temporary suspension 

language in Act 47. 

Section 19 of Act 47 clearly delegates the authority to suspend the implementation and 

enforcement of the sulfur limits to the Governor. Thus, the Agency lacks the statutory 

authority to require EPA approval for such suspensions. Doing so would be 

inconsistent with the plain language of the statute and contrary to legislative intent . 

Further, given the formal and public nature of executive orders, one would expect this 

authority to be used sparingly (e.g ., in emergency situations) . In addition, the law 

specifically states that any suspension from the requirements must be temporary. In 

other words, any suspension shall be effective for only a period of time and not be 
permanent or open ended, as the commenter suggests. Revising the rule to require EPA 

approval of temporary suspensions and/or to set restrictions on issuing such 

suspensions would encroach on the Governor's authority, which is expressly granted by 

statute. Thus, in light of the recently enacted state legislation, the Agency not only lacks 

the authority to make the changes suggested by the commenter, but also questions 

whether such changes are even needed given that the only means for issuing a 

temporary suspension is by executive order of the Governor. , 

5. Comment: Section 5-221(1) should include appropriate record keeping and reporting 

requirements, such as those required in Chapter 106 of Maine's low sulfur fuel 

regulations, to ensure the enforceability of the sulfur in fuel oil limits . [1] 

Response: The Agency agrees with the commenter and has revised section 5-221(1) 

to include reporting and recordkeeping requirements similar to those required by 

Maine.