19828 Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Proposed Rules 

hour ozone NAAQS for the subject 

sources of VOC in Pennsylvania, as they 

are not covered by or cannot meet 

Pennsylvania’s presumptive RACT 

regulation. 

EPA also finds that all the proposed 

revisions to previously SIP approved 

RACT requirements, under the 1979 1- 

hour ozone standard (RACT I), as 

discussed in PADEP’s SIP revisions, 

will result in equivalent or additional 

reductions of NOX and/or VOC 

emissions and should not interfere with 

any applicable requirement concerning 

attainment or reasonable further 

progress with the NAAQS or interfere 

with other applicable CAA requirement 

in section 110(l) of the CAA. 

EPA’s complete analysis of PADEP’s 

case-by-case RACT SIP revision for 

Hydro Carbide is included in the TSD 

available in the docket for this 

rulemaking action and available online 

at https://www.regulations.gov, Docket 

number EPA–R03–OAR–2022–0284. 

IV. Proposed Action 

Based on EPA’s review, EPA is 

proposing to approve the Pennsylvania 

SIP revision for case-by-case RACT 

determinations for individual sources at 

Hydro Carbide and incorporate by 

reference in the Pennsylvania SIP, via 

the RACT II permit, source specific 

RACT determinations under the 1997 

and 2008 8-hour ozone NAAQS for 

those sources. EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

V. Incorporation by Reference 

In this document, EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

source specific RACT determinations 

via the RACT II permit as described in 

Sections II and III–Summary of SIP 

Revisions and EPA’s Evaluation of SIP 

Revisions in this document. EPA has 

made, and will continue to make, these 

materials generally available through 

https://www.regulations.gov and at the 

EPA Region III Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 

rulemaking, addressing the NOX and 

VOC RACT case-by-case requirements 

for individual sources at Hydro Carbide 

for the 1997 and 2008 8-hour ozone 

NAAQS, does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in 

Pennsylvania, and EPA notes that it will 

not impose substantial direct costs on 

tribal governments or preempt tribal 

law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: March 29, 2022. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2022–07219 Filed 4–5–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2022–0196; FRL–9701–01– 

R3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Removal of Stage II 

Gasoline Vapor Recovery Program 

Requirements and Revision of Stage I 

Gasoline Vapor Recovery Program 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

state implementation plan (SIP) 

revision, made in two separate 

submittals, by the State of Delaware. 

This revision removes requirements for 

gasoline vapor recovery systems 

installed on gasoline dispensers, the 

purpose of which are to capture 

emissions from vehicle refueling 

operations, otherwise known as Stage II 

vapor recovery. This revision also 

strengthens Delaware’s requirements for 

gasoline vapor recovery systems that 

capture emissions from storage tank 

refueling operations, otherwise known 

as Stage I vapor recovery. Specifically, 

this action would remove from the 

approved SIP prior-approved Stage II 

requirements applicable to new and 

existing gasoline dispensing facilities 

(GDFs). New and existing GDF’s will be 

required to decommission their Stage II 

vapor recovery systems (VRS) and to 

install, maintain, and periodically test 

Stage I enhanced vapor recovery 

systems (EVRS). Delaware’s SIP revision 

establishes a compliance schedule for 

these changes and includes a 

demonstration that removal of Stage II 

requirements is consistent with the 

Clean Air Act (CAA) and meets all 

relevant EPA guidance. 

DATES: Written comments must be 

received on or before May 6, 2022. 


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1EPA Guidance on Removing Stage II Gasoline 

Vapor Control Programs from State Implementation 

Plans and Assessing Comparable Measures, Table 

A–1 (August 7, 2012). 

2See CAA Section 202(a)(6) 

3EPA Guidance on Removing Stage II Gasoline 

Vapor Control Programs from State Implementation 

Plans and Assessing Comparable Measures, Table 

A–1 (August 7, 2012). 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2022–0196 at https://

www.regulations.gov, or via email to 

gordon.mike@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the ‘‘For Further 

Information Contact’’ section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Adam Yarina, Planning & 

Implementation Branch (3AD30), Air & 

Radiation Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. The telephone number is (215) 

814–2103. Mr. Yarina can also be 

reached via electronic mail at 

Yarina.Adam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer 

to EPA. The following outline is 

provided to aid in locating information 

in this preamble. 

I. Background and Purpose 

II. Summary of Delaware’s Stage I and Stage 

II Vapor Recovery Program and SIP Revisions 

III. EPA’s Evaluation of Delaware’s SIP 

Revisions 

IV. Proposed Action 

V. Incorporation by Reference 

VI. Statutory and Executive Order Reviews 

I. Background and Purpose 

On November 17, 2020, the Delaware 

Department of Natural Resources and 

Environmental Control (DNREC) 

submitted a revision to its SIP. This SIP 

submittal includes Delaware’s revised 

Stage I and Stage II vapor recovery 

regulations at 7 DE Admin Code 1124 

Section 26.0 Gasoline Dispensing 

Facility Stage I Vapor Recovery and 

Section 36.0 Vapor Emission Control at 

Gasoline Dispensing Facilities, 

respectively. These regulations have 

been revised to require the 

decommissioning of existing Stage II 

VRS and the installation, maintenance, 

and testing of Stage I EVRS at new and 

existing GDFs. The SIP submittal 

establishes a compliance schedule for 

these changes and includes a 

demonstration that removal of Stage II 

VRS in Delaware will not interfere with 

any requirement concerning attainment 

or reasonable progress of any national 

ambient air quality standard (NAAQS), 

or any other applicable requirement of 

the CAA. All existing GDFs in Delaware 

were to decommission their Stage II 

VRS by December 31, 2021, and install 

Stage I EVRS by December 31, 2025. 

New GDFs are prohibited from 

installing Stage II VRS and must install 

Stage I EVRS at construction. Delaware’s 

SIP demonstration is also intended to 

show that removal of Stage II 

requirements is consistent with all 

relevant EPA guidance. 

Stage II vapor recovery is an emission 

control system that is installed on 

gasoline dispensing equipment at GDFs 

for the purpose of capturing fuel vapor 

that would otherwise be released from 

vehicle gas tanks into the atmosphere 

during vehicle refueling. Stage II VRS 

installed on dispensing equipment 

capture these refueling emissions at the 

dispenser and route the refueling vapors 

back to the GDF’s underground storage 

tank, preventing volatile organic 

compounds (VOCs) that comprise these 

vapors from escaping to the atmosphere. 

Beginning in 1998, newly manufactured 

gasoline-burning cars and trucks have 

been equipped with on-board vapor 

recovery (ORVR) systems that utilize 

carbon canisters installed directly on 

the vehicle to capture refueling vapors 

in the vehicle to be later routed to the 

vehicle’s engine for combustion during 

engine operation. 

Stage I VRS are systems that capture 

vapors displaced from storage tanks at 

GDFs during gasoline tank truck 

deliveries. When gasoline is delivered 

into an aboveground or underground 

storage tank, vapors that were taking up 

space in the storage tank are displaced 

by the gasoline entering the storage 

tank. Stage I VRS route these displaced 

vapors into the delivery truck’s tank. 

Some vapors are vented when the 

storage tank exceeds a specified 

pressure threshold, however Stage I VRS 

greatly reduce the possibility of these 

displaced vapors being released into the 

atmosphere. 

The 1990 CAA amendments initially 

required implementation of both Stage II 

VRS and ORVR systems. Section 

182(b)(3) of the CAA required areas 

classified as moderate and above ozone 

nonattainment to implement Stage II 

vapor recovery programs, while CAA 

section 184(b)(2) required states in the 

Northeast Ozone Transport Region 

(OTR) to implement Stage II vapor 

recovery or comparable measures. CAA 

section 202(a)(6) required EPA to 

promulgate regulations for ORVR for 

light-duty cars and trucks (passenger 

vehicles); EPA adopted these 

requirements in a final action published 

in the April 6, 1994 Federal Register (59 

FR 16262, hereafter referred to as the 

ORVR rule). Upon the effective date of 

that final rule, moderate ozone 

nonattainment areas were no longer 

subject to CAA section 182(b)(3) Stage II 

vapor recovery requirements. Under the 

ORVR rule, new passenger cars built in 

model year 1998 and later were required 

to be equipped with ORVR systems, 

followed by model year 2001 and later 

light-duty trucks. ORVR equipment has 

been installed on nearly all new 

gasoline-powered light-duty cars, lightduty trucks, and heavy-duty vehicles 

manufactured since 2006.1

During the phase-in of ORVR controls, 

Stage II has provided VOC emission 

reductions in ozone nonattainment 

areas and in certain areas of the OTR. 

Congress recognized that ORVR systems 

and Stage II VRS would over time 

become largely redundant technologies 

acting to capture the same pollutants; 

Congress therefore provided authority in 

the 1990 CAA amendments for EPA to 

allow states to remove Stage II vapor 

recovery programs from their SIPs upon 

EPA making a finding that ORVR is in 

‘‘widespread use.’’ 2 EPA issued a 

widespread use finding in a final rule 

published in the May 16, 2012 Federal 

Register (77 FR 28772), in which EPA 

determined that ORVR was in 

widespread use on a nationwide basis. 

EPA estimated that by the end of 2016, 

more than 88 percent of gasoline 

refueling nationwide would occur with 

ORVR-equipped vehicles.3 Thus, Stage 

II vapor recovery programs have become 

largely redundant control systems for 

ORVR-equipped vehicles and, as a 

result, Stage II VRS achieve everdeclining emissions benefits as more 


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4EPA Guidance on Removing Stage II Gasoline 

Vapor Control Programs from State Implementation 

Plans and Assessing Comparable Measures, p.1 

(August 7, 2012). 

5CAA Section 182(b)(3). 

6The title of this section was subsequently 

revised by Delaware to ‘‘Vapor Emission Control at 

Gasoline Dispensing Facilities,’’ as discussed later 

in this rule. 

7Although these SIP revisions were approved by 

EPA on different dates, the Delaware state effective 

date for these requirements was January 11, 1993. 

The Federal Register document published on 

December 7, 1998 at 63 FR 67407 has a 

comprehensive list of approved Delaware SIP 

revisions as of that date. 

8 19 DE Reg. 199, 7 DE Admin. Code 1124 Control 

of Volatile Organic Compound Emissions; issued 

August 17, 2015 via Secretary’s Order No. 2015–A– 

0030, effective September 11, 2015. 

9 24 DE Reg. 61, 7 DE Admin. Code 1124 Control 

of Volatile Organic Compound Emissions, Section 

26—Gasoline Dispensing Facility Stage I Vapor 

Recovery, and Section 36—Vapor Emission Control 

at Gasoline Dispensing Facilities; issued June 11, 

2020 via Secretary’s Order No.: 2020–A–0017, 

effective July 11, 2020. 

10See 24 DE Reg. 61, 7 DE Admin. Code 1124, 

Control of Volatile Organic Compound Emissions, 

Section 36.4 Standards for Facilities with Stage I 

Vapor Recovery Systems, and Section 36.3 

Standards for Facilities with Stage II Vapor 

Recovery Systems, respectively. 

ORVR-equipped vehicles continue to 

enter the on-road motor vehicle fleet.4

In areas where certain types of vacuumassist Stage II VRS are used, such as 

Delaware, the incompatibility between 

ORVR systems and certain 

configurations of Stage II vapor recovery 

systems results in the reduction of 

overall control system efficiency in 

capturing VOC refueling emissions, 

compared to what would otherwise be 

achieved by ORVR or Stage II VRS 

acting in the absence of the other. In its 

May 16, 2012 widespread use 

rulemaking, EPA also exercised its 

authority under CAA section 202(a)(6) 

to waive certain federal statutory 

requirements for Stage II VRS at GDFs, 

which among other things, exempted all 

new ozone nonattainment areas 

classified serious or above from the 

requirement to adopt Stage II vapor 

recovery programs. Finally, EPA’s May 

16, 2012 rulemaking also noted that any 

state currently implementing Stage II 

vapor recovery program may submit SIP 

revisions that would allow for the 

phase-out of Stage II VRS. 

Stage I VRS have been in place since 

the 1970s. EPA has issued the following 

guidance regarding Stage I systems: 

‘‘Design Criteria for Stage I Vapor 

Control Systems—Gasoline Service 

Stations’’ (November 1975, EPA Online 

Publication 450R75102), which is 

regarded as the control techniques 

guideline (CTG) for the control of VOC 

emissions from this source category; and 

the EPA document ‘‘Model Volatile 

Organic Compound Rules for 

Reasonably Available Control 

Technology’’ (Staff Working Draft, June 

1992) contains a model Stage I 

regulation. In more recent years, the 

California Air Resources Board (CARB) 

has required Stage I VRS capable of 

achieving vapor control efficiencies 

higher than those achieved by 

traditional systems. These systems are 

commonly referred to as Stage I EVRS. 

II. Summary of Delaware’s Stage I and 

Stage II Vapor Recovery Program and 

SIP Revisions 

Since the early 1990s, ambient air 

quality in Delaware—in particular that 

of New Castle County, which is 

Delaware’s portion of the PhiladelphiaWilmington-Trenton, PA-NJ-DE-MD 

metropolitan area—has been in 

nonattainment for the ground-level 

ozone NAAQS. New Castle County and 

Kent County were both classified as 

Severe-15 nonattainment for the 1-hour 

1979 ozone NAAQS, while Sussex 

County was classified as Marginal 

nonattainment. See 56 FR 56694. 

Because gasoline vapors contain mainly 

VOCs and contribute to the formation of 

ground-level ozone, Section 182(b)(3) of 

the CAA Amendments of 1990 requires 

states with moderate and higher ozone 

nonattainment areas to revise their SIPs 

to require ‘‘owners or operators of 

gasoline dispensing systems to install 

and operate . . . a system for gasoline 

vapor recovery of emissions from the 

fueling of motor vehicles.’’ 5 As a result, 

in 1993 Delaware adopted Stage I and 

Stage II vapor recovery requirements at 

7 DE Admin Code 1124, Section 26.0 

Gasoline Dispensing Stage I Vapor 

Recovery, and Section 36.0 Stage II 

Vapor Recovery,6 respectively. These 

changes were subsequently incorporated 

into Delaware’s SIP; see the Federal 

Register notice from June 10, 1994 at 59 

FR 29956, and May 3, 1995 at 60 FR 

21707.7

In September 2015, due to the 

widespread use of ORVR and its 

incompatibility with the Stage II 

vacuum-assist VRS in use at Delaware 

GDFs, Delaware revised its vapor 

recovery regulations to allow existing 

GDFs the option to decommission their 

Stage II VRS, and for new GDFs to forgo 

them entirely, provided that GDFs 

installed, maintained, and periodically 

tested Stage I EVRS.8 These revisions, 

referred to by Delaware as the ‘‘2015 

Stage II Regulation,’’ were interim 

updates that were intended to test the 

feasibility and effectiveness of this 

approach, and were not incorporated 

into Delaware’s SIP at that time. 

Delaware subsequently revised and 

finalized these requirements in 2019 

and 2020. The finalized revisions, 

referred to by Delaware as the ‘‘2019 

Stage II Revision,’’ mandated that 

existing GDFs decommission their Stage 

II VRS by December 31, 2021, and 

prohibited new GDFs from installing 

them at all. At the same time, Delaware 

also updated and finalized changes to 

the 2002 version of 7 DE Admin. Code 

1124, Section 26.0, Gasoline Dispensing 

Facility Stage I Recovery. These updated 

requirements mandated that existing 

GDFs install Stage I EVRS by December 

31, 2025, while new GDFs were 

required to install them upon 

construction.9

On November 17, 2020, Delaware 

submitted a SIP revision to EPA 

consisting of these state regulatory 

requirements adopted by DNREC, along 

with a demonstration of the emission 

impacts of the changes to Stage I and 

Stage II requirements on affected 

Delaware areas. This SIP revision, 

referred to by Delaware as the ‘‘DE 2019 

Stage I–II SIP Revision’’ includes 

revised rules that mandated the 

decommissioning of Stage II VRS at 

existing GDFs by December 31, 2021, 

prohibit the installation of Stage II VRS 

at new GDFs, and mandate the 

installation of Stage I EVRS at existing 

GDFs by December 31, 2025, and at new 

GDFs upon construction. Delaware’s 

revised rules incorporate by reference 

requirements and procedures for 

decommissioning Stage II VRS based on 

Chapter 14 of the Petroleum Equipment 

Institute’s ‘‘Recommended Practices for 

Installation and Testing of VaporRecovery Systems at Vehicle-Fueling 

Sites,’’ 2019 edition, PEI/RP300–19. The 

revised rules also incorporate by 

reference requirements and procedures 

for the design, installation, 

maintenance, and periodic testing of 

Stage I EVRS, and for the maintenance 

and periodic testing of Stage II VRS for 

GDFs that opt to continue operating 

them until the decommission 

deadline.10

Delaware’s November 17, 2020 SIP 

revision also includes a demonstration 

supporting the discontinuation of the 

Delaware Stage II vapor recovery 

program. This demonstration, discussed 

in greater detail below, consists of an 

analysis that after the year 2016, the 

overall emissions benefits associated 

with the Stage II program, operated in 

conjunction with ORVR, are 

overwhelmed by an emissions 

disbenefit caused by ORVR 

incompatibility with the vacuum-assist 

type Stage II VRS equipment in use at 

Delaware GDFs. DNREC’s analysis 

shows that continued operation of the 


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11 24 DE Reg. 944, 7 DE Admin. Code 1124, 

Control of Volatile Organic Compound Emissions, 

Section 36.0, Vapor Emission Control at Gasoline 

Dispensing Facilities, specifically Section 36.5 

Requirements for Stage I Facilities with Continuous 

Pressure Monitoring Systems, 36.10 Approved 

Systems, and Section 36.11 Referenced Standards; 

issued March 11, 2021 via Secretary’s Order No.: 

2021–A–0009, effective April 11, 2021. 

12The ozone season is the five-month period from 

May 1 to September 30 in the calendar year. 

13EPA Guidance on Removing Stage II Gasoline 

Vapor Control Programs from State Implementation 

Plans and Assessing Comparable Measures, Section 

2.2 (August 7, 2012). 

Stage II vapor recovery program beyond 

2016 actually increases VOC emissions 

due to the incompatibility between the 

vacuum-assist type Stage II VRS 

equipment in use at Delaware GDFs and 

ORVR, coupled with the increasing 

prevalence of ORVR-equipped vehicles. 

Delaware further demonstrates that 

mandating the decommissioning of all 

Stage II VRS equipment by December 

31, 2021, will result in additional 

emissions benefits, especially when 

combined with Stage I EVRS and the 

increasing prevalence of ORVRequipped vehicles. 

On July 14, 2021, Delaware submitted 

an additional SIP revision to further 

amend 7 DE Admin. Code 1124, Control 

of Volatile Organic Compound 

Emissions, Section 36.0 Vapor Emission 

Control at Gasoline Dispensing 

Facilities. These amendments update 

references to several CARB Executive 

Orders (EOs) previously incorporated by 

reference into 7 DE Admin. Code 1124, 

which were subseuently modified by 

CARB between July 17, 2019 and June 

3, 2020, after Delaware’s 2020 

amendments to 7 DE Admin. Code 1124. 

The modified CARB EOs extend 

expiration dates and specify additional 

parts to be used in some certified Stage 

I EVRS.11 The 2020 SIP submittal and 

2021 SIP submittal will both be 

considered in this rulemaking. 

III. EPA’s Evaluation of Delaware’s SIP 

Revisions 

EPA has reviewed Delaware’s revised 

7 DE Admin. Code 1124, Control of 

Volatile Organic Compound Emissions, 

and accompanying SIP narrative, and 

has concluded that Delaware’s 

November 17, 2020 and July 14, 2021 

SIP revisions are consistent with EPA’s 

widespread use rule (77 FR 28772, May 

16, 2012) and with EPA’s ‘‘Guidance on 

Removing Stage II Gasoline Vapor 

Control Programs from State 

Implementation Plan and Assessing 

Comparable Measures’’ (EPA–457/B– 

12–001; August 7, 2012), hereafter 

referred to as EPA’s Stage II Removal 

Guidance. 

Delaware’s November 17, 2020 

revision includes a demonstration 

supporting the discontinuation of the 

Delaware Stage II vapor recovery 

program, in compliance with the 

requirements of the CAA sections 110(l) 

requirement that revision of the SIP will 

not interfere with attainment of or 

reasonable further progress towards 

attainment of any NAAQS or any other 

applicable CAA requirement. This 

demonstration was prepared by DNREC 

based on relevant equations provided in 

EPA’s Stage II Removal Guidance. From 

this analysis, Delaware determined that 

by2017 the emissions benefits from the 

Stage II vapor recovery program, in 

conjunction with ORVR will be 

overwhelmed by the emission 

disbenefits stemming from an 

incompatibility between Stage II 

vacuum-assist type VRS equipment and 

ORVR. Beyond 2016, the continuation 

of Stage II vapor recovery requirements 

would increase emissions in Delaware, 

as summarized in Table 1 in this 

document. If not removed, the vacuumassist Stage II systems in Delaware 

would lead to an emission increase of 

30.87 tons in the ozone season 12 and 

71.13 tons annually by 2021. As a result, 

Delaware elected to allow 

decommissioning of Stage II VRS 

beginning in September 2015 and to 

mandate decommissioning of Stage II 

VRS by December 31, 2021. 

Implementation of these requirements 

are estimated to reduce emissions 

resulting from the incompatibility of 

Stage II VRS and ORVR to 7.59 tons 

during the 2021 ozone season and 17.48 

tons for all of 2021. The EPA has 

reviewed Delaware’s work and finds 

that its underlying data, methods, and 

resulting conclusions are consistent 

with all relevant EPA guidance for Stage 

II vapor recovery requirements. 

TABLE 1—ESTIMATES OF DELAWARE VOC EMISSIONS BENEFITS FROM STAGE II VAPOR RECOVERY EQUIPMENT

Year 

Tons * 

(ozone 

season) 

Tons * 

(annual) 

2016 ......................................................................................................................................................................... 3.74 8.625 

2017 ......................................................................................................................................................................... ¥4.96 ¥11.43 

2018 ......................................................................................................................................................................... ¥13.08 ¥30.14 

2019 ......................................................................................................................................................................... ¥19.78 ¥45.58 

2020 ......................................................................................................................................................................... ¥25.55 ¥58.86 

2021 ......................................................................................................................................................................... ¥30.87 ¥71.13 

2022 ......................................................................................................................................................................... ¥35.75 ¥82.37 

2023 ......................................................................................................................................................................... ¥40.17 ¥92.55 

2024 ......................................................................................................................................................................... ¥44.12 ¥101.65 

2025 ......................................................................................................................................................................... ¥47.59 ¥109.64 

2026 ......................................................................................................................................................................... ¥51.10 ¥117.74 

* Negative numbers indicate emissions increases instead of emissions reductions. 

In evaluating whether a given SIP 

revision would interfere with 

attainment of a NAAQS, EPA generally 

considers whether the SIP revision will 

allow for an increase in actual emission 

into the air over what is allowed under 

the existing EPA-approved SIP. EPA has 

not required that states produce a new 

complete attainment demonstration for 

every SIP revision, provided that the 

status quo air quality is preserved.13

EPA believes that a planned Stage II 

decommissioning that is shown not to 

result in an increase in areawide VOC 

emissions is consistent with the 

conditions of CAA section 110(l), and 

would not jeopardize attainment or 

maintenance of an area that formerly 

relied upon Stage II emission reductions 

in the approved SIP. Delaware has 

demonstrated that Stage II vapor 

recovery will no longer provide 

emission reductions when compared to 

ORVR without Stage II vapor recovery. 

Stage II vapor recovery operated in 

conjunction with ORVR has been shown 

by Delaware to result in increased VOC 


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14EPA’s most recent approval of 7 DE Admin. 

Code 1124, Sections 26.0 and 36.0 was on August 

11, 2010 (see 75 FR 48566). 

emissions since 2017, due to 

incompatibilities between certain types 

of Stage II VRS equipment and vehicle 

ORVR systems. Therefore, EPA believes 

discontinuance of Stage II in Delaware 

will not interfere with the state’s ability 

to attain or maintain the NAAQS, or to 

provide reasonable further progress in 

meeting the NAAQS. 

States in the OTR defined by the CAA 

remain obligated under CAA section 

184(b)(2) to implementeither a statewide 

Stage II vapor recovery program or other 

measures capable of achieving emission 

reductions ‘‘comparable to those 

achievable’’ by Stage II vapor recovery. 

EPA issued guidance on this OTR 

comparability demonstration in 1995 

and later updated that guidance as part 

of its August 2012 Stage II Removal 

Guidance. 

Delaware is required to demonstrate 

Stage II comparability for areas where 

Stage II vapor recovery was previously 

mandated by CAA section 182(b)(3) 

prior to EPA’s issuance of its ORVR 

‘‘widespread use’’ determination; for 

Delaware, this applies statewide (i.e., for 

New Castle, Kent, and Sussex counties). 

The 110(l) demonstration in Delaware’s 

November 17, 2020, SIP revision shows 

that Stage II no longer yields VOC 

emissions benefits in these areas after 

2016 when operated in conjunction 

with ORVR, and in fact results in 

emissions increases. Therefore, since 

Stage II provides no additional benefits 

beyond ORVR, and results in increases 

in VOC emissions after 2016, EPA 

believes that removal of Stage II satisfies 

the Stage II comparability requirement 

of section 184 for these areas. 

In addition to the CAA section 182 

and 184 requirements applicable to 

Stage II vapor recovery, CAA section 

193 prohibits modification of any 

control requirement in effect before 

enactment of the CAA of 1990 (i.e., 

November 15, 1990) in a current 

nonattainment area—unless 

modification ‘‘ensures equivalent or 

greater emission reductions.’’ Therefore, 

a Stage II vapor recovery control 

program implemented under a SIP prior 

to November 1990 may not be removed 

from the SIP until another requirement 

is shown to achieve equal or greater 

emissions reductions than Stage II vapor 

recovery. Delaware did not have a Stage 

II program prior to November 15, 1990, 

so Stage II was not a part of the 

Delaware SIP prior to that date. 

Therefore, this ‘‘general savings clause’’ 

requirement of CAA section 193 does 

not apply to Delaware or to this action. 

With respect to Stage I vapor recovery 

requirements, Delaware’s revised 

regulations in 7 DE Admin. Code 1124, 

Sections 26.0 and 36.0 are more 

stringent than the previously approved 

version of the rule,14 thus meeting the 

CAA section 110(l) anti-back sliding 

requirements. As noted above, the 

revised rule requires existing GDFs to 

install CARB-approved Stage I EVRS by 

December 31, 2025, while new GDFs are 

required to install them upon 

construction. CARB-approved Stage I 

EVRS have been certified to achieve a 

98 percent reduction in VOC emissions, 

compared to 95 percent for non-EVRS 

Stage I systems. Thus, when non-EVRS 

Stage I systems in Delaware are replaced 

with CARB-approved Stage I EVRS, 

greater emission reductions will be 

achieved. 

IV. Proposed Action 

EPA is proposing to approve 

Delaware’s November 17, 2020, and July 

14, 2021 SIP revisions for statewide 

removal of Stage II vapor recovery 

requirements, statewide prohibition of 

Stage II VRS installation at new GDFs, 

the statewide mandatory 

decommissioning of Stage II VRS at 

existing GDFs by December 31, 2021, 

and the statewide mandatory 

installation of Stage I EVRS at all GDFs 

by December 31, 2025. Specifically, EPA 

is proposing to approve Delaware’s 

revised 7 DE Admin. Code 1124, Control 

of Volatile Organic Compound 

Emissions, and incorporate it into the 

Delaware SIP. EPA is proposing to 

approve this SIP revision because it 

meets all applicable requirements of the 

Clean Air Act and relevant EPA 

guidance and because approval of this 

SIP revision will not interfere with 

attainment or maintenance of the ozone 

NAAQS. 

EPA is soliciting public comments on 

the issues discussed in this notice or 

other relevant matters. These comments 

will be considered before taking final 

action. 

V. Incorporation by Reference 

In this document, EPA proposes to 

include, in our subsequent final EPA 

rule, regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, EPA is proposing to incorporate by 

reference the State of Delaware’s revised 

7 DE Admin Code 1124 Section 26.0 

Gasoline Dispensing Facility Stage I 

Vapor Recovery and Section 36.0 Vapor 

Emission Control at Gasoline 

Dispensing Facilities, which will 

include the revisions issued on August 

17, 2015 via 19 DE Reg. 199 (state 

effective date September 11, 2015), the 

revisions issued on June 11, 2020 via 24 

DE Reg. 61 (state effective date July 11, 

2020), and the revisions issued on 

March 11, 2021 via 24 DE Reg. 944 (state 

effective date April 11, 2021). 

EPA has made, and will continue to 

make, these materials generally 

available through https://

www.regulations.gov and at the EPA 

Region III Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VI. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 


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Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Proposed Rules 19833 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule to 

remove Delaware’s Stage II vapor 

recovery requirements does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: March 30, 2022. 

Adam Ortiz, 

Regional Administrator, Region III. 

[FR Doc. 2022–07214 Filed 4–5–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

45 CFR Part 164 

RIN 0945–AA04 

Considerations for Implementing the 

Health Information Technology for 

Economic and Clinical Health (HITECH) 

Act, as Amended 

AGENCY: Office for Civil Rights, Office of 

the Secretary, Department of Health and 

Human Services. 

ACTION: Request for Information. 

SUMMARY: The Office for Civil Rights 

(OCR) at the United States Department 

of Health and Human Services (HHS or 

the Department) is issuing this Request 

for Information (RFI) to solicit public 

comment on certain provisions of the 

Health Information Technology for 

Economic and Clinical Health (HITECH) 

Act, namely: The consideration of 

recognized security practices of covered 

entities and business associates when 

OCR makes determinations regarding 

fines, audits, and remedies to resolve 

potential violations of the Health 

Insurance Portability and 

Accountability Act of 1996 (HIPAA) 

Security Rule; and the distribution to 

harmed individuals of a percentage of 

civil money penalties (CMPs) or 

monetary settlements collected pursuant 

to the HITECH Act, which requires the 

Secretary of HHS (Secretary) to establish 

by regulation, and based upon 

recommendations from the Government 

Accountability Office (GAO), a 

methodology under which an individual 

who is harmed by an act that constitutes 

an offense under certain provisions of 

the HITECH Act or the Social Security 

Act relating to privacy or security may 

receive a percentage of any CMP or 

monetary settlement collected by OCR 

with respect to such offense. 

DATES: Comments must be submitted on 

or before June 6, 2022. 

ADDRESSES: Written comments may be 

submitted through any of the methods 

specified below. Please do not submit 

duplicate comments. 

• Federal eRulemaking Portal: You 

may submit electronic comments at 

https://www.regulations.gov by 

searching for the Docket ID number 

HHS–OCR–0945–AA04. Follow the 

instructions for submitting electronic 

comments. Attachments should be in 

Microsoft Word or Portable Document 

Format (PDF). 

• Regular, Express, or Overnight Mail: 

You may mail comments to U.S. 

Department of Health and Human 

Services, Office for Civil Rights, 

Attention: HITECH Act Recognized 

Security Practices Request for 

Information, RIN 0945–AA04, Hubert H. 

Humphrey Building, Room 509F, 200 

Independence Avenue SW, Washington, 

DC 20201. 

All comments received by the 

methods and due date specified above 

may be posted without change to 

content to https://www.regulations.gov, 

which may include personal 

information provided about the 

commenter, and such posting may occur 

after the closing of the comment period. 

However, the Department may redact 

certain non-substantive content from 

comments before posting, including 

threats, hate speech, profanity, graphic 

images, or individually identifiable 

information about a third-party 

individual other than the commenter. In 

addition, comments or material 

designated as confidential or not to be 

disclosed to the public will not be 

accepted. Comments may be redacted or 

rejected as described above without 

notice to the commenter, and the 

Department will not consider in 

rulemaking any redacted or rejected 

content that would not be made 

available to the public as part of the 

administrative record. Commenters 

providing information regarding their 

organizations’ implementation of 

recognized security practices should not 

include details that, if disclosed to the 

public, may put the security of the 

organizations’ information systems at 

risk. 

Because of the large number of public 

comments normally received on Federal 

Register documents, OCR is not able to 

provide individual acknowledgments of 

receipt. 

Please allow sufficient time for mailed 

comments to be received timely in the 

event of delivery or security delays. 

Please note that comments submitted 

by fax or email and those submitted 

after the comment period will not be 

accepted. 

Docket: For complete access to 

background documents or posted 

comments, go to https://

www.regulations.gov and search for 

Docket ID number HHS–OCR–0945– 

AA04. 

FOR FURTHER INFORMATION CONTACT: 

Lester Coffer at (800) 368–1019 or (800) 

537–7697 (TDD). 

SUPPLEMENTARY INFORMATION: OCR, 

which administers and enforces the 

HIPAA Privacy, Security, Breach 

Notification, and Enforcement Rules 

(HIPAA Rules), is issuing this RFI to 

improve its understanding of how 

covered entities and business associates 

(regulated entities) are voluntarily 

implementing recognized security 

practices as defined in Public Law 116– 

321, which added Section 13412 to the 

HITECH Act. The information received 

in public comments will help OCR 

determine what potential information or 

clarifications it needs to provide, 

through future guidance or rulemaking, 

to help regulated entities understand the 

application of the new law. This RFI 

also seeks public input on issues 

relating to the distribution of a 

percentage of CMPs or monetary 

settlements to individuals who are 

harmed by acts that constitute offenses 

under subtitle D of the HITECH Act or 

Section 1176 of the Social Security Act 

relating to privacy or security, as 

required by Section 13410(c)(3) of the 

HITECH Act. Among the issues on 

which OCR seeks public input are how 

to define compensable individual harm 

resulting from a violation of the HIPAA 

Rules and the appropriate distribution 

of payments to harmed individuals. 

OCR will use the information received 

in public comments to inform the 

development of future distribution 

methodology and policies. 


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