[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4895-4897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2826]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[IN58-1-7216a; FRL-5342-9]


Approval and Promulgation of Implementation Plans; Revision to 
the Indiana State Implementation Plan for Ozone

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA approves the State Implementation Plan (SIP) 
revision request submitted by the State of Indiana on August 25, 1995, 
establishing a summertime gasoline Reid Vapor Pressure (RVP) limit of 
7.8 pounds per square inch (psi) for gasoline distributed in Clark and 
Floyd Counties, as part of the State's plan to attain 15 percent (%) 
Reasonable Further Progress (RFP) reductions of Volatile Organic 
Compounds (VOC) emissions in these two Counties by 1996. Emissions of 
VOC react with other pollutants, such as oxides of nitrogen, on hot 
summer days to form ground-level ozone, commonly known as smog. Ozone 
pollution is of particular concern because of its harmful effects upon 
lung tissue and breathing passages. RFP plans are intended to bring 
areas which have been exceeding the public health-based Federal ozone 
air quality standard closer toward the goal of attaining and 
maintaining this standard. Indiana expects that the summertime RVP 
gasoline limit will reduce VOC emissions by 2.29 tons per day in the 
Clark and Floyd Counties ozone nonattainment area. A final approval 
action is being taken because the submittal meets all pertinent Federal 
requirements.

DATES: The ``direct final'' is effective on April 9, 1996, unless USEPA 
receives adverse or critical comments by March 11, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Copies of the revision request is available for inspection 
at the following address: U.S. Environmental Protection Agency, Region 
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. (It is recommended that you telephone Mark J. Palermo 
at (312) 886-6082 before visiting the Region 5 Office.)
    Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Regulation Development Branch (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Mark J. Palermo at (312) 886-6082.

SUPPLEMENTARY INFORMATION:

I. Background

    RVP is a measure of a fuel's volatility and thereby affects the 
rate at which gasoline evaporates and emits VOC; the lower the RVP, the 
lower the rate of evaporation. The RVP of gasoline can be lowered by 
reducing the amount of its volatile components, such as butane. 
Lowering RVP in the summer months can offset the effect of summer 
temperature upon the volatility of gasoline, which in turn lowers 
emissions of VOC. Because VOC is a necessary component in the 
production of ground level ozone in hot summer months, reduction of RVP 
will assist the State of Indiana to attain the National Ambient Air 
Quality Standard (NAAQS) for ozone, which all States must promulgate 
SIPs to achieve under section 110(a) of the Act.
    The USEPA first proposed to regulate gasoline RVP in 1987 (52 FR 
31274). USEPA's gasoline RVP proposal resulted in a two-phased final 
regulation which was incorporated into the 1990 Amendments to the Clean 
Air Act (Act) in section 211(h). Phase I of the regulation took effect 
in 1990 (54 FR 11868) for the years 1990 and 1991. Phase II of the 
regulation became effective in 1992 (55 FR 23658). The rule divides the 
continental United States into two control regions, Class B and Class 
C. Generally speaking, the Class B states are the warmer southern and 
western states, and Class C states are the cooler northern states. The 
Phase II regulation limits the volatility of gasoline sold during the 
high ozone season to 9.0 psi RVP for Class C areas and 7.8 psi RVP for 
Class B ozone nonattainment areas. Indiana is a Class C State, and 
therefore, required under the Federal rule to meet the 9.0 psi RVP 
standard.
    State governments are generally preempted under section 
211(c)(4)(A) of the Act from requiring any or all areas in a state to 
meet a more stringent volatility standard.1 However, a state can 
require a more stringent standard in its SIP if the state can show 
under section 211(c)(4)(C) that the more stringent standard is 
necessary to achieve the National Ambient Air Quality Standard (NAAQS) 
for ozone in a particular nonattainment area. The state can make this 
showing by providing evidence that no other measures exist that would 
bring about timely attainment, or that such measures exist and are 
technically possible to implement, but are unreasonable or impractical. 
If a state makes this showing, it can lower the RVP of gasoline to 
whatever level has been shown to be necessary in the nonattainment 
area(s).

    \1\  USEPA's federal standards were promulgated under both 
section 211(c) and section 211(h). States are generally preempted 
under section 211(c)(4)(A) from requiring fuel standards promulgated 
under section 211(c).
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II. State Submittal

    Section 182 of the Act requires all moderate, serious, severe, and 
extreme ozone nonattainment areas to submit an RFP plan to achieve a 
15% reduction of 1990 emissions of VOC by 1996. In Indiana, Clark and 
Floyd Counties are classified as moderate nonattainment for ozone, and 
as such, subject to the 15% RFP requirement. See 40 CFR 81.315.
    The Indiana Department of Environmental Management (IDEM) developed 
and submitted a plan to USEPA on July 12, 1995, outlining the VOC 
emission control measures which will be implemented in order to satisfy 
the 15% RFP requirement for Clark and Floyd Counties. USEPA is 
currently reviewing the plan. One of the measures identified in the 
Clark and Floyd Counties plan is a summertime gasoline RVP limit of 7.8 
psi. On August 3, 1994, the Indiana Air Pollution Control Board (IAPCB) 
held a preliminary adoption hearing on a proposed rule to limit 
summertime gasoline RVP to 7.8 psi, and on January 11, 1995, the IAPCB 
adopted the rule. The rule became effective on August 5, 1995, and was 
published in the Indiana State Register on August 1, 1995. IDEM 
formally submitted the RVP rule to USEPA on August 25, 1995, as a 
revision to the Indiana ozone SIP. USEPA made a finding of completeness 
of this SIP revision in a letter dated October 2, 1995.
    In the 15% RFP plan for Clark and Floyd Counties, Indiana reviewed 
all reasonable control measures and calculated the total reductions 
that it could achieve through these measures. The plan's modeling 
demonstrates that limiting the RVP of gasoline to 7.8 reduces emissions 
in Clark and Floyd Counties by approximately 2.29 tons per day.
    ``Opt-in'' into the Federal reformulated gasoline program, pursuant 
to section 211(k)(6) of the Act, could also achieve this amount of 

[[Page 4896]]
emission reduction, but could not be implemented in time to qualify as 
a control measure which could help Clark and Floyd Counties meet 15% 
RFP reductions by 1996. Other reasonable control measures which could 
possibly achieve this degree of emission reduction, such as Stage II 
vapor recovery, enhanced vehicle Inspection/Maintenance, or new 
Reasonably Available Control Technology requirements for stationary 
sources, are already part of the RFP plan for Clark and Floyd Counties.
    Indiana has therefore selected the RVP control because it is the 
only other reasonable and practicable emission control option available 
to the Clark and Floyd County area 15% RFP plan, and gasoline RVP 
control is necessary to ensure timely attainment with the NAAQS for 
ozone. On this basis, USEPA has found that Indiana has sufficiently 
justified establishing a 7.8 psi summertime gasoline RVP limit under 
section 211(c)(4)(C) of the Act.

III. Analysis of Rule

    The Indiana RVP rule specifies that the gasoline distributed in 
Clark and Floyd Counties by all refineries, importers, carriers, or 
terminals between May 1 and September 15, and all retail stations and 
other end users who sell or dispense gasoline between June 1 and 
September 15, must meet a RVP standard of 7.8 psi or less per gallon. 
The rule provides a 1.0 psi volatility waiver for ethanol blended fuels 
and establishes reformulated gasoline (RFG) as a compliant fuel in 
order to allow gasoline distributors who sell only RFG to maintain a 
presence in Clark and Floyd Counties. In addition, the Indiana RVP rule 
requires all parties involved with the marketing of gasoline to 
maintain records indicating that the volatility of each gasoline 
shipment meets the 7.8 psi limit. The control period, ethanol blend 
waiver, and recordkeeping requirements, are all consistent with the Act 
and USEPA's final RVP rule (55 FR 23658). Reformulated gasoline is 
suitable as a compliant fuel because it achieves slightly higher 
emission reductions than gasoline with 7.8 psi RVP.
    IDEM will oversee compliance with this rule. Gasoline sampling and 
testing to assure compliance with the regulation began in the summer of 
1995. Sampling will be performed in accordance with the procedures 
described by USEPA in its gasoline volatility regulations in 40 CFR 
part 80, Appendix D. Gasoline volatility and ethanol content tests will 
be performed following procedures described by USEPA in 40 CFR part 80, 
Appendices E and F, respectively. The Indiana Code (IC) 13-7-13-1, 
states that any person who violates any provision of IC 13-1-1, IC 13-
1-3, or IC 13-1-11, or any regulation or standard adopted by one (1) of 
the boards (i.e., IAPCB), or who violates any determination, permit, or 
order made or issued by the commissioner (of IDEM) pursuant to IC 13-1-
1, or IC 13-1-3, is liable for a civil penalty not to exceed twenty-
five thousand dollars per day of any violation. Because this submittal 
is a regulation adopted by the IAPCB, a violation of which subjects the 
violator to penalties under IC 13-7-13-1, and because a violation of 
the ozone SIP would also subject a violator to enforcement under 
section 113 of the Act by USEPA, USEPA finds that the submittal 
contains sufficient enforcement penalties for approval. In addition, 
IDEM has submitted a civil penalty policy document which accounts for 
various factors in the assessment of an appropriate civil penalty for 
noncompliance with IAPCB rules, among them, the severity of the 
violation, intent of the violator, and frequency of violations. USEPA 
finds these criteria sufficient to deter non-compliance.

IV. Final Rulemaking Action

    The USEPA approves the SIP revision submitted by the State of 
Indiana. The State of Indiana has submitted a SIP revision which 
includes enforceable state regulations consistent with Federal 
requirements. Indiana has already conducted inspections at about one-
third of the regulated facilities during the first season of 
compliance. Substantial penalties which will provide an adequate 
incentive for the regulated industry to comply and are no less than the 
expected cost of compliance are included in current Pollution Control 
Board Regulation. USEPA is, therefore, approving this submittal.

Procedural Background

    The USEPA is publishing this action without prior proposal because 
USEPA views this action as a noncontroversial revision and anticipates 
no adverse comments. However, USEPA is publishing a separate document 
in this Federal Register publication, which constitutes a ``proposed 
approval'' of the requested SIP revision and clarifies that the 
rulemaking will not be deemed final if timely adverse or critical 
comments are filed. The ``direct final'' approval shall be effective on 
April 9, 1996, unless USEPA receives adverse or critical comments by 
March 11, 1996. If USEPA receives comments adverse to or critical of 
the approval discussed above, USEPA will withdraw this approval before 
its effective date by publishing a subsequent Federal Register document 
which withdraws this final action. All public comments received will 
then be addressed in a subsequent rulemaking document. Please be aware 
that USEPA will institute another comment period on this action only if 
warranted by significant revisions to the rulemaking based on any 
comments received in response to today's action. Any parties interested 
in commenting on this action should do so at this time. If no such 
comments are received, USEPA hereby advises the public that this action 
will be effective on April 9, 1996.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') (signed into law on March 22, 1995) requires that the 
USEPA prepare a budgetary impact statement before promulgating a rule 
that includes a Federal mandate that may result in expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more in any one year. Section 203 requires 
the USEPA to establish a plan for obtaining input from and informing, 
educating, and advising any small governments that may be significantly 
or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the USEPA must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The USEPA must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the USEPA explains why this 
alternative is not selected or 

[[Page 4897]]
the selection of this alternative is inconsistent with law.
    This final rule only approves the incorporation of existing state 
rules into the SIP and imposes no additional requirements. This rule is 
estimated to result in the expenditure by State, local, and tribal 
governments or the private sector of less then $100 million in any one 
year. USEPA, therefore, has not prepared a budgetary impact statement 
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Furthermore, because small 
governments will not be significantly or uniquely affected by this 
rule, the USEPA is not required to develop a plan with regard to small 
governments.
    Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq., 
USEPA must prepare a regulatory flexibility analysis assessing the 
impact of any proposed or final rule on small entities. (5 U.S.C. 
sections 603 and 604.) Alternatively, USEPA may certify that the rule 
will not have a significant impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements a State has already imposed. Therefore, because the 
Federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the Act, preparation of a regulatory flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of the 
State action. The Clean Air Act forbids USEPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S. 
246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410(a)(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 9, 1996. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbon, 
Incorporation by reference, Ozone.

    Dated: November 21, 1995.
Valdas V. Adamkus,
Regional Administrator.

    For the reasons stated in the preamble, part 52, chapter I, title 
40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart P--Indiana

    2. Section 52.770 is amended by adding paragraph (c)(101) to read 
as follows:


Sec. 52.770  Identification of plan.

* * * * *
    (c) * * *
    (101) On August 25, 1995, Indiana submitted a regulation which 
reduced the maximum allowable volatility for gasoline sold in Clark and 
Floyd Counties to 7.8 psi during the summer control period. The summer 
control period is June 1, to September 15, for retail outlets and 
wholesale customers, and May 1, to September 15, for all others.
    (i) Incorporation by reference. 326 Indiana Administrative Code 13-
3 Control of Gasoline Reid Vapor Pressure. Sections 1 through 7. 
Finally adopted by the Indiana Air Pollution Control Board January 11, 
1995. Signed by the Secretary of State July 6, 1995. Effective August 
5, 1995. Published at Indiana Register, Volume 18, Number 11, August 1, 
1995.

[FR Doc. 96-2826 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P