State of Rhode Island 

Department of Environmental Management 

Office of Air Resources 

File No. 

In Re: Adoption of Amendments to Air Pollution Control Regulation No. 11 "Petroleum 

Liquids Marketing and Storage" and Air Pollution Control Regulation No. 25, "Control of 

Volatile Organic Compound Emissions from Cutback and Emulsified Asphalt" 

DECISION 

Introduction 

On 31 July 2000 a notice was published in the Providence Journal-Bulletin and was mailed to 

interested parties announcing a public hearing and comment period to accept comments on the 

proposed adoption of amendments to Air Pollution Control Regulation No. 11, "Petroleum 

Liquids Marketing and Storage" and Air Pollution Control Regulation No. 25, "Control of 

Volatile Organic Compound Emissions from Cutback and Emulsified Asphalt." The public 

hearing was held on 7 September 2000 in Room 300 of the Department of Environmental 

Management Building, 235 Promenade Street, Providence, Rhode Island . The public comment 

period was extended until 4:00 PM on 22 September 2000. 

The proposed amendments to Regulation No. 11 would modify the Stage II vapor recovery 

requirements in the regulation in order to clarify the definition of the term "substantially 

modified," allow newly constructed and substantially modified facilities with throughputs less 

than 10,000 gallons per month to apply for exemptions from Stage II requirements, clarify 

certification and training requirements, specify that vapor and vent piping must be made of a 

nonmetallic rigid material, and clarify and expand initial and periodic testing requirements. 

Other proposed amendments to Regulation No. 11 include a modification of inspection 

requirements for stationary vessels which store petroleum products and the removal of annual 

certification requirements for gasoline tank trucks . 

These changes were proposed to ensure that vapor recovery systems and storage tanks are 

installed, operated and maintained in a way that minimizes emissions of gasoline vapors and 

petroleum products and to eliminate unnecessarily burdensome aspects of the regulation that do 

not yield significant environmental benefits. 

The proposed amendments to Regulation No. 25 would remove restrictions on the manufacture, 

mixing, storage, use and application of cutback and emulsified asphalt during the non-ozone 

season, relax restrictions on cutback asphalt during the ozone season, and change the dates that 

ozone season restrictions apply from May 1 - October 14 to April 1 - September 30. These 
amendments were proposed to address the concerns of a rural municipality regarding the cost and 

performance of alternative asphalt products when used on rural roads and to make the ozone 

season dates in the regulation consistent with the dates that ozone monitoring is required in the 

State. 

Response to Comments 

This section will present the Rhode Island Department of Environmental Management's (RI 

DEM's) response to the comments received at the public hearing and during the public comment 

period . Each comment has been paraphrased and is followed by RI DEM's response. Similar 

comments have been grouped together . A list of commenters is attached . 

Comments on proposed amendments to Regulation No. 11 

Comment: The proposed revision to Subsection 11 .10.2 .1, which requires "installation of 

Stage II systems that are currently certified by CARB", would obligate the Office of Air 

Resources to adopt CARB's Enhanced Vapor Recovery (EVR) program. EVR systems are 

dramatically different from the present Stage II vapor recovery systems and CARB's adoption of 

EVR will result in the decertification of most of the Stage II equipment currently in operation. 

EVR will result in significant changes, which include : 

" Storage tank pressure limits ; 

" Unihose dispensers ; 

" Demonstrating compatibility with onboard refueling vapor recovery (ORVR); 

" Provisions for "In Station Diagnostics" (ISD) which could shut down a dispenser or an entire 

station if an EVR specification is not met. 

EVR was developed for the specific needs of the State of California, specifically CARB's legal 

obligation to revise the vapor recovery program for the South Coast Air Quality Management 

District (Los Angeles region). The gasoline industry has concerns over the availability of 

certified equipment because some provisions of EVR take effect in April 2001 . It is questionable 

that equipment, which meets the EVR standards, can be manufactured and certified to meet the 

proposed deadlines. Several of EVR's requirements are "technology forcing" ; in that there is 

currently no demonstrated technology to meet these_ requirements. Requiring ISD may result in 

recording erroneous information and may result in shutting down dispensers . If Rhode Island 

were to adopt EVR, facility owners and operators would be subject to potential expenditures of 

$30,000 - $60,000 per station to retrofit a typical Stage II installation to bring it into compliance 

with EVR. (API, Mass. Petroleum Council, DeBlois, EPA) 

Response: It was not the intention of the OAR to adopt the CARB Enhanced Vapor 

Recovery (EVR) program at this time. The word "currently" was added in an attempt to 

eliminate improper Stage I and Stage II vapor recovery installations which result from the use of 
out-of-date versions of CARB certifications by installation contractors. 

The proposed language has been amended to in response to this comment. The word "currently" 

has been removed from paragraph 11 .10.2 .1(a) and a new paragraph, 11 .10.2 .1(b), has been 

added that specifies that Stage II systems installed after the effective date of the amended 

regulation must be certified according CARB certification procedures adopted on 12 April 1996 

(pre- EVR) or later. Therefore, existing stations would not be required to replace equipment, and 

new or modified installations could be done according to the pre-EVR certifications . However, a 

sentence was added to section 11 . 10.2 .2 which specifies that any systems installed that were 

certified according to procedures adopted after 12 April 1996 (post-EVR) must adhere to all 

provisions of those certifications, including EVR, if applicable. 

The OAR will continue to monitor the EVR issue. If, in the future, the OAR finds that adopting 

portions of the EVR program would result in significant improvements to the Rhode Island Stage 

II program, further amendments to Regulation No. 11 would be proposed and would again be the 

subject of a public hearing and comment period . In particular, OAR is concerned that many of 

the systems currently in operation are not compatible with ORVR, and may propose amendments 

mandating ORVR compatibility when such technology is readily available. 

Comment: The proposed revision of Subsection 11 . 10.3 .8 stating that "any additional tests 

required by the applicable CARB certification shall be performed", would require that the State 

adopt any additional more stringent testing requirements as CARB sees fit. This requirement 

would cause additional financial hardship for the owners and operators. (DeBlois) 

Response: The proposed amendments were not changed in response to this requirement. 

Testing according to the specifications of applicable CARB certification is necessary to 

guarantee that the Stage II equipment is 95% efficient, as certified. Practically speaking, CARB 

has no plans to modify existing certifications, because it is in the process of switching to EVR, 

which Rhode Island is not adopting at this time, as discussed above. Therefore, it is highly 

unlikely that CARB will add any additional tests to the current certifications . 

Comment: There is no method for informing the owners and operators of gasoline dispensing 

facilities of the need to perform additional testing. It is important that any changes to the testing 

requirements go before the regulated community to allow an opportunity for comments. 

(DeBlois) 

Response: The amendments were not changed in response to this comment. A notice of the 

public hearing and a fact sheet about the proposed amendments was sent to all station owners at 

the beginning of the public comment period . When the amended regulation is filed, RI DEM 

will notify owners and operators, as well as testing and installation contractors, about the new 

requirements . Any tests that may be required in the future, beyond those specifically identified 
in the regulation and those that are required in applicable CARB certifications, would require 

fiirther amendment of the regulation, including a public hearing. In the unlikely event that 

CARB modifies the testing requirements in a certification, RI DEM would make every effort to 

notify affected facilities about that change. 

Comment: The proposed amendments to the regulation increase the frequency of testing and 

impose additional testing requirements. UST owners and operators have endured substantial 

financial hardship in order to comply with the 1998 Federal and State UST requirements. 

Additional expenditures for Stage II testing would not be prudent at this time. (DeBlois) 

Response: The regulation was not amended in response to this comment. Regulation 11 was 

amended on 31 January 1993 to require the installation, operation, and testing of CARBapproved Stage II vapor recovery systems. Since that date, CARB has added new testing 

requirements to its Stage II certifications . These tests are critical for determining the operational 

status of the Stage II vapor recovery system, and must be implemented to ensure that the systems 

are operating at the required 95% efficiency . 

One of these additional test requirements for vacuum or aspirated assist "bootless" nozzle 

systems is the Air to Liquid Ratio Test (A/L). The A/L test is used to determine the volume of 

gasoline vapor returned to the gasoline storage tank, in relation to the volume of gasoline liquid 

dispensed from the storage tank. A/L testing has been performed at several vacuum assist Stage 

JI vapor recovery sites during the past three years. Additionally, it was recently performed, on a 

voluntary basis, at approximately thirty-five facilities belonging to a major oil company . The 

results of this testing showed that vacuum pumps, which draw the gasoline vapors from the 

vehicle and return them to the gasoline storage tank, often are not operating at the required 

levels, and sometimes are not operating at all. 

These sites adhered to the required annual Leak Test and Vapor Space Tie Test requirements and 

the required periodic Liquid Blockage testing. However, those tests do not indicate the 

operational status of the vacuum pumps, as does the A/L test . Obviously, a vacuum assist Stage 

II system is not effective if the vacuum pump is not working properly . RI DEM believes that the 

additional testing is necessary. Moreover, additional expenses costs associated with the 

increased testing are expected to be less than $500 per year. 

Comment: The current regulation allows for records to be maintained at an alternate location. 

There is no language in the amended regulation that would allow for this . The Department 

should allow, with a written request, for records to be maintained at an alternate location . It is 

extremely important for a chain operator to be allowed to maintain records at a centralized 

location to protect important records and documents . (DeBlois) 

Response: In response to this comment, the proposed amendment requiring all records to be 

4 
kept at the facility for the first two years has been changed back to require that only records of 

visual inspections, removals of dispensers from operation, and replacement and repair of parts be 

maintained on-site for two years. Other required records may be maintained at a central location 

approved by the Department . 

Comment: If the State wants to reduce ozone concentrations, it should reduce emissions of 

oxides of nitrogen (NOx), not of VOC. (API) 

Response: RI DEM has promulgated regulations regulating NOx emissions. Although NOx 

emissions reductions tend to provide the greatest ground-level ozone reduction benefits on a 

regional basis, VOCs are often important for local reductions . Therefore, both of these pollutant 

types are regulated in Rhode Island . 

Comment: In subsection 11 .5 .2 .2 (a)(1), "1/2 -3/4" should be changed to "1/4 to 3/8," since 

this is the correct sized orifice for a 2" vent line . (API) 

Response: Since orifice size was not part of the proposed amendments and was not subject to 

public comment, the regulation was not changed in response to this comment. However, this 

issue will be considered when the regulation is next amended. 

Comment: In subsection 11 .10.2 .1(a), change "dispensing pump" to "dispenser ." This 

terminology is more technically correct. (API) 

Response: The OAR is not amending this portion of Air Pollution Regulation 11 at this time. 

Comments must be limited to currently proposed amendments only. However, this comment 

will be considered when the regulation is next amended. 

Comment: In subsection 11 .10.2 .1(c), delete "which has been approved by the Director and 

by EPA". Due to ongoing changes it will be burdensome to approve all training sessions . (API) 

Response: The OAR is not amending this portion of Air Pollution Regulation 11 at this time. 

Comments must be limited to currently proposed amendments only. However, this comment 

will be considered when the regulation is next amended. 

Comment: Delete the references to Ten Gallon per Minute testing in subsections 11 .10.3 .3(d) 

and 11 . 10.3 .8 . The Ten Gallon per Minute test is part of the A/L test . (API) 

Response: No change was made in response to this comment. The Ten-Gallon Per Minute 
(10 GPM) Test is required, in addition to the A/L test, in some certifications . It is also required 

by some of the balance system certifications, which do not require A/L testing. 

Comment: In subsection 11 .10.3 .7, change the word "certify" in the first sentence to "provide 

test results" and change "15 days" to "30 days." (API) 

Response: The OAR is not amending this portion of Air Pollution Regulation 11 at this time. 

Comments must be limited to currently proposed amendments only. This comment will be 

considered when the regulation is next amended. 

Comment: The proposal, in Subsection 11 .10.1(e), to exempt new or substantially modified 

facilities that dispense 10,000 gallons per month is reasonable due to the small amount of 

emissions from the facilities . This exemption should be applied for future determinations and 

not retroactively. (EPA) 

Response: The proposed language was not amended in response to this comment. Several 

facilities with very low throughputs and feasibility issues have been given extensions to Stage II 

installation requirements in the past few years, pending these amendments. RI DEM believes 

that those facilities should be eligible for exemptions . 

Comment: Rhode Island should consider adding a provision to Regulation 11 which would 

require the installation of pressure vacuum (PV) vent valves on underground gasoline storage 

tank vents. 

Response: Since RI DEM has decided not to require that all systems be "currently certified," 

which would have obviated the need for a separate requirement for PV vent valves, paragraph 

11 .10.2 .1(d) was added in response to this comment, which requires PV vent valves on all Stage 

II vapor recovery systems. 

Comments on proposed amendments to Regulation No. 25 

Comment: Small communities must use tax dollars effectively. The best short-term 

management practice for surface maintenance for Charlestown roads is cutback asphalt in the 

medium range, especially for severely cracked and deteriorated surfaces . Cutback asphalt resists 

immediate cracking and is superior in function and durability to emulsified asphalt on older 

pavements. Therefore the proposed amendments should be promulgated . (Town of 

Charlestown) Since most towns have not had difficulty complying with the rule, Rhode Island 

should maintain its existing rule for all communities except those that demonstrate that relief is 
needed. (EPA) Since Regulation No. 25 has virtually eliminated the use of these products in 

the State, why bring them back, considering the negative impact on air quality? Such a change 

may cause municipalities that have successfully eliminated using cutback to revert to its use. 

Instead of doing the minimum required, RI DEM should be doing everything possible to improve 

air quality in the State. (Major) 

Response: RI DEM continues to believe that promulgating those amendments would have a 

minimal impact on air quality in the State, since no municipality other than Charlestown has 

indicated an interest in initiating or reinitiating use of cutback asphalt and since the volatiles 

content of any cutback asphalt used during the ozone season would be limited to 5%. However, 

it is true that promulgating the amendments could prompt some municipalities that are now 

successfully using alternative products to reconsider cutback asphalt. Therefore, the proposed 

amendments that relax the rule will not be promulgated. A community may apply for a singlesource SIP revision relaxing these requirements, provided that that community can demonstrate 

that complying with the regulation is technically and/or economically infeasible . Single-source 

SIP revisions are subject to public comment. 

Comment: The proposed amendments would provide Rhode Island highway professionals 

with the same opportunities as those in Connecticut and Massachusetts. (Town of Charlestown) 

Response: As discussed above, the proposed amendments reducing the stringency of the 

current restrictions in Regulation No. 25 will not be adopted. It is true that some states, 

particularly those that adopted cutback asphalt regulations many years ago, have requirements 

that are less stringent than the current Rhode Island requirements . However, the requirements in 

this rule were written to reflect Reasonably Available Control Technology (RACT) available 

when the rule was adopted in 1992, and RACT often becomes more stringent as new products 

and techniques become available. 

Comment: Other areas, like California's South Coast Air Quality Management District 

(SCAQMD), have implemented requirements that are actually more stringent than the current 

provisions in Regulation No . 25 . For instance, SCAQMD allows cutback asphalt to contain no 

more than 0.5% VOCs evaporating up to 500°F; while Rhode Island allows 5%, and SCAQMD 

restricts emulsified asphalt to 3% VOC, while Rhode Island allows 3-12%, depending on the 

application. RI DEM should investigate whether advances in product design now allow more 

stringent provisions . (USEPA) 

Response : Making the regulation more stringent is out of the scope of the amendments 

proposed, but may be considered in the future . 
Comment: Although emission of VOCs is not an issue for ozone formation in the cooler 

months, the application of cutback asphalt is also associated with emissions of hazardous air 

pollutants, specifically ethylbenzene, toluene and xylene . DEM should maintain its existing 

restrictions in the non-ozone season to preserve air toxics benefits. (USEPA) 

Response: As discussed previously, the proposed amendments that would make the 

regulation less stringent will not be promulgated. Although use of these products is unlikely to 

cause exposures to toxics above health benchmarks, RI DEM agrees that toxics exposures should 

be minimized to the extent practicable. 

Comment: The fact sheet for the proposed amendments states that the regulation was initially 

adopted to fulfill requirements in the Clean Air Act Amendments of 1990, among them that 

VOC emissions be reduced by 15% by 1996. Has this requirement been met? It appears that it 

has not, because a recent article in the Providence Journal said that greenhouse gas emissions 

have increased since 1990 . (Major) 

Response: The requirement for a 15% reduction in emissions of volatile organic compounds 

(VOC) by 1996 was met. RI DEM's plan documenting these reductions was approved by the US 

EPA in the December 8, 1998 Federal Register . It is true that emissions of greenhouse gases 

have increased since 1990, but the application of cutback asphalt is not a significant source of 

such emissions. Greenhouse gases, like carbon dioxide, are primarily emitted from combustion 

processes, such as those used to generate electricity and heat. 

Comment: Since RI DEM is revising Regulation No. 25, the State should consider updating 

its definition of VOC in that regulation at this time to make it consistent with the Federal 

definition . (EPA) 

Response: A change in the VOC definition is beyond the scope of the proposed amendments . 

The VOC definition occurs in several of RI's Air Pollution Control regulations. In the future, the 

VOC definition in all of these regulations will be updated at the same time, as was done in 1996. 

Comment: When RI DEM submits Regulation No. 25 to EPA as a State Implementation Plan 

(SIP) revision, Section 25.2 .2 should be deleted. (EPA) 

Response: Section 25.2 .2 will not be included in RI DEM's request to amend the SIP. 
Comment: We are requesting a list of every municipality that used or is using cutback and 

emulsified asphalt, where they get this asphalt, and the amount of usage and dates/years of usage. 

The fact sheet says they have been "virtually eliminated;" are they still being used? Also, we are 

requesting information about availability of no VOC emulsion products, low VOC cutback 

products and bituminous concrete and the amounts and dates/years of usage for every 

municipality . (Major) 

Response: In 1993, five municipalities, Charlestown, Foster, Jamestown, Richmond and W. 

Greenwich, purchased cutback asphalt. In addition, private companies located in Johnston, 

Middletown, North Kingstown, Wakefield, Warwick and Cumberland purchased cutback that 

year. Some may have been under contract with one or more municipalities . All asphalt was 

purchased from Hudson Liquid Asphalts. According to Hudson, no cutback has been sold to 

Rhode Island municipalities since the promulgation of the Regulation No . 25 . RI DEM does not 

have detailed information available about the use of emulsified and other asphalt products by 

municipalities. 

Comment: Changing the dates for the ozone season restrictions to correspond with the dates 

that ozone monitoring is required in the State is not in the best interest of air quality in RI. Since 

no ozone monitoring is done between 1 October and 31 March, no one will know how the use of 

these asphalt products affect air quality during that time period . This is particularly important 

given that RI is a serious nonattainment area that has gotten worse in the 1990's . Who does the 

ozone monitoring, and where and how often is it done? (Major) 

Response: RI DEM, in cooperation with the RI Department of Health Air Pollution 

Laboratory, operates ozone monitors continuously from April through September at three 

locations in the State ; the Alton Jones campus of the University of Rhode Island in W. 

Greenwich, the EPA Laboratory in Narragansett, and the Francis School in East Providence. 

Ozone monitors are operated only during the warm months because the photochemical reactions 

that lead to the formation of ground level ozone occur only in the presence of elevated 

temperatures . Exceedances of the ozone standards typically occur only when temperatures are in 

the high eighties or above and the wind is from the southwest or west. Other pollutants, such as 

carbon monoxide, volatile organic compounds, nitrogen oxides, particulate matter and sulfur 

dioxide are monitored at various locations throughout the State year round. The reason that the 

restrictions on the application of asphalt are less stringent in the October through March time 

period is that VOC emitted during the colder months do not cause elevated ozone levels . Note 

that, although RI is still classified as a serious nonattainment area for ozone, the frequency and 

severity of exceedances have decreased during the past ten years. 

Comment: The fact sheet states that "RI DEM has determined that implementation of these 

amendments would not cause a significant increase in emissions of VOCs in the State." How 

was this determination made? Any increase would be detrimental. We believe there would be a 
steep increase in VOC emissions, which would negatively impact our already seriously 

compromised air quality. (Major) 

Response : This determination was made by calculating the VOC emissions that would occur 

if all of the municipalities and companies that formerly used cutback asphalt resumed use of this 

product during the ozone season . Since the regulation restricts the volatiles content of the 

product to 5%, calculated emissions would be considerably lower (0.2 tons per year) than those 

that occurred before the implementation of Regulation No. 25 (3 .2 tons per year), when products 

with volatile contents of approximately 70% were used. However, as discussed previously, RI 

DEM has decided not to promulgate the proposed amendments relaxing the requirements, in 

order to avoid any unnecessary increase in emissions. 

Comment: Why were no alternative approaches considered? (Major) 

Response: No alternative approaches were identified. 

Comment: Who requested that the regulation be relaxed, when, and what proof of expense 

and performance limitations of alternatives was supplied? The fact sheet states that the 

amendments may "reduce road paving costs for certain municipalities." Was a cost analysis 

done to prove this? The possibility of reducing costs for a few should not outweigh an increase 

in VOC emissions, since RI DEM has the obligation to protect human health, quality of life, and 

the environment. (Major) 

Response: The amendments were initiated at the request of the Town of Charlestown. No 

formal cost analysis was done. As discussed previously, the proposed amendments relaxing the 

requirements will not be promulgated. 

Comment: Citizens of Johnston are concerned that Granite Asphalt Corp. might soon locate a 

huge emulsified asphalt plant next to the Central Landfill. Relaxing Regulation No . 25 appears to 

be a back door way of allowing this to happen. (Major) 

Response : As discussed previously, the proposed amendments were requested by the Town 

of Charlestown and, to our knowledge, are not related to the Central Landfill area. We have no 

information that would suggest that an asphalt plant is being considered for Johnston, and, 

regardless of the final disposition of the proposed amendments, any such facility would be 

required to apply for and receive a preconstruction permit from RI DEM prior to beginning 

operation. 

10 
Decision 

It is the decision of the Hearing Officer to adopt the proposed amendments to Air Pollution 

Control Regulation No. 11, "Petroleum Liquids Marketing and Storage" and Air Pollution 

Control Regulation No . 25, "Control of Volatile Organic Compound Emissions from Cutback 

and Emulsified Asphalt," with the revisions noted above. The final regulations are appended to 

this Decision. 

22 N~~~ QD 

Date 

Approved: 

; ,; 

Stephen Majkut, 

Hearing Officer 

cJ 

Date JanlH. Reitsma 

Director 
Copies of Decision to : 

INTER-OFFICE MAIL 

Kathleen Lanphear 

DEM-Administrative Adjudication Division 

235 Promenade Street 

Providence, RI 02908 

John Langlois, Legal Counsel 

DEM, Office of Legal Services 

235 Promenades Street 

Providence, RI 02908 

Patricia A. Nolan, M.D., MPH 

Director of Dept. of Health 

3 Capitol Hill 

Providence, RI 02908 

Terry Gray, Asst. Director 

DEM 

235 Promenade Street 

Providence, RI 02908 

Janis Loiselle 

Governor's Policy Office 

State House 

COMMENTERS 

Alan A. Arsenault, Director of Public Works 

Town of Charlestown 

4540 South County Trail 

Charlestown, RI 02813 

David B. Conroy, Manager 

Air Quality Planning Unit 

EPA Region I 

1 Congress St., Suite 1100 

Boston, MA 02114-2023 

Bill and Patti Major 

12 Apple Tree Lane 

Johnston, RI 02919 

Jeff Trask 

American Petroleum Institute (API) 

John E. Quinn, Executive Direction 

Massachusetts Petroleum Council 

(A Division of API) 

11 Beacon St. 

Boston, MA 02108 

Charles H. DeBlois, Jr. 

DB Companies, Inc. 

PO Box 9471 

Providence, RI 02940-9471