State of Rhode Island Department of Environmental Management

Office ofAir Resources File No. In Re: Adoption ofAmendments 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 fromCutback and Emulsified Asphalt." The public hearing was held on 7 September 2000 in Room300ofthe 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 orderto clarify the definition ofthe 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 ofa 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 ofannual 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 ofgasoline vapors and petroleumproducts and to eliminate unnecessarily burdensome aspects ofthe 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 ofcutback 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 fromMay 1 - October 14 to April 1 - September 30 . Theseamendments were proposed to address the concerns ofa rural municipality regarding the cost and

performance ofalternative 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. Alist ofcommenters 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 ofAir Resources to adopt CARB's Enhanced Vapor Recovery (EVR) program . EVRsystems are dramatically different fromthe present Stage II vapor recovery systems and CARB's adoption of EVRwill result in the decertification of most of the Stage II equipment currently in operation. EVRwill 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 EVRspecification is not met. EVRwas developed for the specific needs ofthe 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 EVRtake effect in April 2001 . It is questionable that equipment, which meets the EVRstandards, 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. IfRhode Island were to adopt EVR, facility owners and operators would be subject to potential expenditures of $30,000 - $60,000per 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 OARto 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 vaporrecovery installations which result fromthe use of

### out-of-date versions of CARB certifications by installation contractors.

The proposed language has been amended to in response to this comment . Theword "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 ofthe amended regulation must be certified according CARB certification procedures adopted on 12April 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-EVRcertifications. 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 12April 1996 (post-EVR) must adhere to all provisions of those certifications, including EVR, ifapplicable. The OARwill continue to monitorthe EVRissue. If, in the future, the OARfinds that adopting portions of the EVRprogramwould 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 ofa public hearing and comment period. In particular, OARis 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 ofSubsection 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 ofapplicable 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 ofswitching 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 ofgasoline dispensing facilities of the need to performadditional 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. Anotice ofthe public hearing and a fact sheet about the proposed amendments was sent to all station owners at the beginning ofthe public comment period. When the amended regulation is filed, RI DEM will notify owners and operators, as well as testing and installation contractors, aboutthe new requirements. Any tests that may be required in the future, beyond those specifically identifiedin the regulation and those that are required in applicable CARB certifications, would require

fiirther amendment ofthe regulation, including a public hearing. In the unlikely event that CARBmodifies 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 oftesting 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, andtesting ofCARBapproved 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 ofthese additional test requirements for vacuumor aspirated assist "bootless" nozzle systems is the Air to Liquid Ratio Test (A/L) . TheA/L test is used to determine the volume of gasoline vapor returned to the gasoline storage tank, in relation to the volume ofgasoline liquid dispensed fromthe 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 amajor oil company. The results ofthis testing showed that vacuum pumps, which draw

the gasoline vapors fromthe 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 ofthe vacuum pumps, as does the A/L test. Obviously, a vacuumassist Stage II systemis not effective ifthe vacuumpump 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 inthe 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 allowedto 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 

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

visual inspections, removals ofdispensers fromoperation, 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 ofVOC . (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 OARis not amending this portion ofAir 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 OARis not amending this portion ofAir 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 ofthe 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 "30days." (API) Response: The OARis not amending this portion ofAir 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 fromthe 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 inthe past few years, pending these amendments. RI DEM believes that those facilities should be eligible for exemptions. Comment : Rhode Island should consider adding aprovision to Regulation 11 whichwould require the installation of pressure vacuum(PV) vent valves on underground gasoline storage tank vents. Response: Since RI DEM has decided notto require that all systems be "currently certified," whichwould 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 mediumrange, 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 complyingwith the rule, Rhode Island should maintain its existing rule for all communities except those that demonstrate that relief isneeded. (EPA) Since Regulation No. 25 has virtually eliminated the use of these products in

the State, why bring themback, 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 ofcutback asphalt and since the volatiles content ofany 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. Acommunity 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 SIPrevisions 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, SCAQMDallows cutback asphalt to contain no more than 0

.5% VOCs evaporating up to 500°F; while Rhode Island allows 5%, and SCAQMD restricts emulsified asphaltto 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 inthe future.Comment : Although emission ofVOCs is not an issue for ozone formation in the cooler

months, the application ofcutback 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 VOCemissions 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 ofvolatile organic compounds (VOC) by 1996was 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 ofgreenhouse gases have increased since 1990, but the application ofcutback asphalt is not a significant source of such emissions. Greenhouse gases, like carbon dioxide, are primarily emitted fromcombustion 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 ofVOCin that regulation at this time to make it consistent with the Federal definition. (EPA) Response: Achange in the VOCdefinition is beyond the scope of the proposed amendments. The VOCdefinition occurs in several of RI's Air Pollution Control regulations. In the future, the VOCdefinition in all ofthese regulations will be updated at the same time, as was done in 1996. Comment : When RI DEM submits Regulation No. 25 to EPAas 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 ofevery municipality that used or is using cutback and

emulsified asphalt, where they getthis asphalt, and the amount of usage and dates/years ofusage. The fact sheet says they have been "virtually eliminated;" are they still being used? Also, we are requesting information about availability ofno VOCemulsion products, low VOCcutback 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 fromHudson 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 ofemulsified 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 ofair quality in RI . Since no ozone monitoring is done between 1 October and 31 March, no onewill 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 gottenworse inthe 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 fromApril through September at three locations in the State; the AltonJones campus ofthe University of Rhode Island in W . Greenwich, the EPALaboratory 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 ofground level ozone occur only in the presence ofelevated temperatures. Exceedances of the ozone standards typically occur only when temperatures are in the high eighties or above and the wind is fromthe 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 ofasphalt are less stringent in the October through March time period is that VOCemitted 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 ofexceedances 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 ofVOCs in the State." How was this determination made? Any increase would be detrimental . We believe there would be asteep increase in VOCemissions, which would negatively impact our already seriously

compromised air quality. (Major) Response: This determination was made by calculating the VOCemissions that would occur ifall of the municipalities and companies that formerly used cutback asphalt resumed use ofthis product during the ozone season. Since the regulationrestricts the volatiles content ofthe 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 ofapproximately 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 proofofexpense and performance limitations ofalternatives 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 VOCemissions, 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 ofthe Town of Charlestown. No formal cost analysis was done. As discussed previously, the proposed amendments relaxing the requirements will not be promulgated. Comment : Citizens ofJohnston 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 ofallowing 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 fromRI DEM prior to beginning operation.

10Decision

It is the decision of the Hearing Officer to adopt the proposed amendments to Air Pollution Control Regulation No. 11, "PetroleumLiquids Marketing and Storage" and Air Pollution Control Regulation No. 25, "Control ofVolatile Organic Compound Emissions fromCutback 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 DirectorCopies of Decision to:



### INTER-OFFICE MAIL Kathleen Lanphear DEM-Administrative Adjudication Division 235 Promenade Street 

### Providence, RI 02908 John Langlois, Legal Counsel DEM, Office ofLegal Services 235 Promenades Street 

### Providence, RI 02908 Patricia A

. Nolan, M

.D ., MPH Director ofDept. 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 ofCharlestown 4540 South County Trail Charlestown, RI 02813 David B. Conroy, Manager Air Quality Planning Unit EPARegion I 1 Congress St., Suite 1100 Boston, MA 02114-2023 Bill and Patti Major 12Apple Tree Lane Johnston, RI 02919 

### JeffTrask American Petroleum

Institute (API) John E. Quinn, Executive Direction Massachusetts PetroleumCouncil (A Division ofAPI) 11 Beacon St. Boston, MA 02108 Charles H

. DeBlois, Jr. DB Companies, Inc. POBox 9471 

### Providence, RI 02940-9471