[Federal Register Volume 63, Number 109 (Monday, June 8, 1998)]
[Rules and Regulations]
[Pages 31116-31120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX NO. PA110-4068a; FRL-6102-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Gasoline Volatility Requirements for the Pittsburgh-
Beaver Valley Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the Commonwealth of Pennsylvania. This revision amends the 
gasoline volatility requirement for the Pittsburgh-Beaver Valley 
nonattainment area. The intended effect of this action is to approve a 
summertime gasoline Reid vapor pressure (RVP) limit of 7.8 pounds per 
square inch (psi) for gasoline sold in Allegheny, Armstrong, Beaver, 
Butler, Fayette, Washington, and Westmoreland counties in Pennsylvania. 
These seven counties comprise the Pittsburgh-Beaver Valley ozone 
nonattainment area.

DATES: This final rule will become effective July 23, 1998 without 
further notification unless the Agency receives relevant adverse 
comments by July 8, 1998. If adverse comment is received, EPA will 
publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: Comments may be mailed to David Arnold, Chief, Ozone and 
Mobile Source Section, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107. Copies of the documents relevant to this action are available 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107; Pennsylvania 
Department of Environmental Protection, Bureau of Air Quality, P.O. Box 
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Marcia L. Spink at (215) 566-2104.

SUPPLEMENTARY INFORMATION: On December 3, 1997, the Commonwealth of 
Pennsylvania submitted a formal revision to its State Implementation 
Plan (SIP). The SIP revision amends the gasoline volatility requirement 
for the seven county Pittsburgh-Beaver Valley ozone nonattainment area 
(the Pittsburgh area). On April 17, 1998 the Commonwealth of 
Pennsylvania revised its December 3, 1997 SIP revision request by 
deleting the provisions relating to the use of reformulated gasoline 
(RFG).

I. Background

    In July 1995, EPA determined that the air quality of the Pittsburgh 
area met the national ambient air quality standard

[[Page 31117]]

(NAAQS) for ozone based upon 1991 through 1994 monitoring data. (Note: 
That this determination by EPA did not constitute an agency action to 
redesignate the Pittsburgh area to attainment.) Therefore, under an EPA 
policy applicable to ozone areas with three years of violation free 
data, the requirement for an attainment demonstration and other related 
requirements were waived for the Pittsburgh area. However, subsequent 
to EPA's determination, there were a number of exceedances in the 1995 
ozone season that resulted in a violation of the ozone NAAQS, and the 
previously waived requirements, including the need for an attainment 
demonstration, were reinstated. In response to the violation of the 
NAAQS in the Pittsburgh area, Pennsylvania Governor Thomas Ridge 
convened the Southwestern Pennsylvania Stakeholder Working Group to 
review the problem and recommend additional emission control strategies 
to reduce ozone precursors and produce the required attainment 
demonstration.
    One of the measures the Southwestern Pennsylvania Stakeholder 
Working Group (the Stakeholders) recommended as necessary to achieve 
the ozone standard in the Pittsburgh area was a fuels program for 
cleaner gasoline. There was much debate during the Stakeholders' 
deliberations as to whether the Group should recommend the adoption of 
a lower RVP program or whether the Governor should opt the moderate 
Pittsburgh ozone nonattainment area into the federal RFG program, which 
is mandated for ozone nonattainment areas classified as serious or 
above. (The federal RFG program is mandated, for example, in the 
Philadelphia-Wilmington-Trenton severe ozone nonattainment area.) The 
Stakeholders' eventual majority recommendation was for a so-called 
``dual fuel rule'' for the Pittsburgh area whereby either low RVP or 
RFG could be used to provide for market driven considerations. (There 
was a minority opinion issued by some Stakeholders who felt compelled 
to represent their constituencies by ``going on record'' that they 
recommended the federal RFG program.) Under the dual fuel scenario, 
however, it is important to recognize that any RFG distributed and sold 
in the Pittsburgh area would not have been required by and enforceable 
under the federal RFG program. The Pennsylvania Department of 
Environmental Protection (PADEP), in accordance with the Stakeholders' 
majority recommendation, proceeded to adopt a dual fuel regulation for 
the Pittsburgh area, and on December 3, 1997 submitted that regulation 
to EPA as a SIP revision.
    After PADEP adopted the dual fuel regulation and submitted it as a 
SIP revision, however, the dual fuel regulation became an issue of 
concern and debate in the Pennsylvania legislature. While concerns were 
raised over both low RVP gasoline and RFG, there was an understanding 
that a clean fuels program was an ozone precursor reduction measure 
that the Stakeholders had recommended as both cost-effective and 
necessary for timely attainment of the NAAQS for ozone in the 
Pittsburgh area. Moreover, the attainment demonstration submitted by 
PADEP to satisfy the reinstated requirement that such a demonstration 
be submitted for the Pittsburgh area by December 31, 1997, took credit 
for the reductions predicted to be achieved by the implementation of 
the clean fuels program. Modeling analyses performed during the 
Stakeholders process indicated that there was very little difference 
between low RVP gasoline and RFG as control strategies in terms of 
their effectiveness in lowering predicted ground level ozone 
concentrations. In fact, the modeling analyses performed for the actual 
attainment demonstration assumed the level of emission reductions that 
would occur if the low RVP program were to be implemented.
    In order to move forward with the implementation of a clean 
gasoline program in the Pittsburgh area in time to realize its public 
health benefits for the 1998 ozone season, the PADEP informed the 
legislature that it would amend the dual fuel regulations to remove the 
RFG provisions and that low RVP gasoline would be the ``complying 
fuel'' for the Pittsburgh area. On April 17, 1998, Pennsylvania amended 
its December 3, 1997 SIP revision request to EPA by asking that only 
the low RVP-related provisions of its regulations be approved into the 
SIP for the Pittsburgh area.
    This low RVP program adds new regulations to the Pennsylvania SIP 
for the Pittsburgh area. These new regulations apply to the sale of 
gasoline in the Pittsburgh area between May 1 and September 15 of each 
calendar year. The regulation imposes a RVP limit of 7.8 pounds per 
square inch (psi) on all gasoline marketed in Allegheny, Armstrong, 
Beaver, Butler, Fayette, Washington, and Westmoreland counties. The 
restrictions on fuel would be effective between May 1 and September 15 
of each year beginning in calender year 1998 for all refiners, 
distributors, resellers, carriers, and wholesalers. The restrictions 
would be applicable between June 1 and September 15 of each year for 
all wholesale purchaser consumers and retailers of gasoline.
    RVP is a measure of a fuel's volatility and thereby affects the 
rate at which gasoline evaporates and emits VOCs. The lower a fuel's 
RVP, the lower the rate of evaporation of the fuel. The RVP of gasoline 
can be lowered by reducing the amount of its volatile components, such 
as butane. Lowering RVP of gasoline sold during the summer months can 
offset the effect of summer temperature upon the evaporation of the 
fuel, which in turn lowers emissions of VOCs. Because VOCs are a 
component in the formation of ground-level ozone on sunny, hot summer 
days, lowering the RVP of gasoline sold in the Pittsburgh area is an 
effective ozone control strategy because it will reduce the VOC 
emissions from gasoline marketing and from vehicles.
    The EPA first proposed to regulate gasoline RVP in 1987 (52 FR 
31274). The EPA's gasoline RVP proposal resulted in a two-phased final 
regulation which was in large part incorporated into the 1990 
Amendments to the CAA in section 211(h). Phase I of the federal 
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). This federal 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 federal regulation limits 
the volatility of gasoline sold during the high ozone season to 9.0 psi 
for Class C areas and 7.8 psi for Class B ozone non-attainment areas. 
Pennsylvania is a Class C State, and therefore, required under the 
Federal rule to meet the 9.0 psi standard. Therefore, in order to 
approve the Commonwealth's SIP revision, EPA must find under section 
211(c)(4)(C) of the CAA that the state's requirement is necessary for 
the Pittsburgh area to meet the ozone NAAQS.

II. Summary and Approval of SIP Revision

    State governments are preempted under section 211(c)(4)(A) of the 
CAA from prescribing a control respecting a fuel characteristic or 
component that is not identical to a federal control promulgated under 
section 211(c)(1) that is applicable to the same characteristic or 
component. However, under section 211(c)(4)(C) a State can require, 
through a SIP revision, a more stringent RVP standard for a particular

[[Page 31118]]

area if the EPA finds that the more stringent standard is necessary to 
achieve the NAAQS for ozone and approves the SIP revision. In addition 
to demonstrating necessity under section 211(c)(4)(C), under section 
110 the State must also submit an adequate description of the low RVP 
program and associated enforcement procedures. If EPA finds that a 
State has shown necessity and has provided an adequate description of 
the program, EPA may approve the SIP revision requiring the lower state 
RVP standard for the selected areas.

A. Approval of Pennsylvania's Preempted State Fuel Control Program

    Pennsylvania has submitted to EPA data and analysis to support a 
finding under section 211(c)(4)(C) that its low RVP requirement is 
necessary for the Pittsburgh nonattainment area to achieve the ozone 
NAAQS. The Commonwealth has (1) identified the quantity of reductions 
of VOCs needed to achieve attainment of the ozone NAAQS; (2) identified 
all other control measures and the quantity of reductions each would 
achieve; and (3) shown that even with the implementation of all 
reasonable and practicable control measures, the additional emissions 
from the low RVP program are needed for the Pittsburgh area to meet the 
ozone NAAQS on a timely basis.
    Pennsylvania submitted analyses to EPA demonstrating the necessity 
for the low RVP requirement as part of the attainment demonstration SIP 
revision it submitted for the Pittsburgh area. The Commonwealth's 
submission used Urban Airshed Modeling to estimate the quantity of 
emissions of VOCs necessary to achieve the ozone NAAQS.
    Next, the Stakeholders evaluated a broad range of potential control 
measures to determine whether there are sufficient reasonable and 
practicable measures available to produce the needed emissions 
reductions without requiring low RVP gasoline. In addition to assessing 
the quantity of emission reductions attributable to each control 
measure, the state also considered the time needed for implementations 
and cost effectiveness of each measure in evaluating the reasonableness 
of the other control measures in comparison to the low RVP gasoline 
requirements. Pennsylvania found that a 7.8 psi RVP requirement would 
produce an estimated 13.12 tons per day of VOC emissions reductions. 
Based on the Commonwealth's evaluation, EPA finds that there are not 
sufficient other reasonable and practicable measures available to 
produce the quantity of emissions reductions needed to achieve the 
NAAQS for ozone, and thus a low RVP requirement is necessary.
    The EPA concurs with the Commonwealth's analysis and its implicit 
determination that ``other measures'' (as specified in section 
211(c)(4)) need not encompass other state fuel measures including state 
opt-in to RFG. The EPA believes that the CAA does not require a state 
to demonstrate that other fuel measures are unreasonable or 
impracticable, but rather section 211(c)(4) is intended to ensure that 
a state resorts to a fuel measure only if there are no available, 
practicable, and reasonable non-fuels measures. Thus, in demonstrating 
that measures other than requiring low RVP gasoline are unreasonable or 
impracticable, a state is not required to submit a demonstration that 
other state fuel requirements or state opt-in to RFG are unreasonable 
or impracticable. This interpretation resolves the ambiguity of the 
phrase ``other measures'' and reasonably balances the interests 
underlying the statutory preemption provision. In addition, the result 
preserves the state's role, specified in section 101(a)(3) of the CAA 
as the entity primarily responsible for determining the mix of controls 
to be used to achieve the required emission reductions. The 
Commonwealth has already adopted virtually every other available 
control measure it could practically implement in the Pittsburgh area. 
The other measures that have been adopted to reduce ozone precursor 
emissions, (such as enhanced Inspection and Maintenance, Stage II Vapor 
Recovery, Phase II of the NOx reduction requirements implemented 
pursuant to the Ozone Transport Region's Memorandum of Understanding, 
reasonably available control technology on numerous source categories) 
would not achieve all the reductions needed. A detailed discussion of 
Pennsylvania's evaluation relative to the emission reduction potential 
of each of these measures can be found as an attachment to EPA's 
Technical Support Document (TSD) prepared for this rulemaking. Copies 
of TSD are available, upon request, from the Regional Office listed in 
the ADDRESSES of this document.

B. Description of Pennsylvania Low RVP Program

    The Pennsylvania submittal specifies that the gasoline distributed 
in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and 
Westmoreland counties at the retail level must meet a RVP standard of 
7.8 psi or less per gallon between May 1 and September 1 of each 
calendar year for all refiners, distributors, resellers, carriers, and 
wholesalers. The restrictions would be applicable between June 1 and 
September 15 of each year for all wholesale purchaser consumers and 
retailers of gasoline. In order for the seven county area to meet the 
7.8 psi standard in calendar year 1998, the requirement will be 
effective for all entities as well as wholesale purchaser consumers and 
retailers on July 23, 1998. Because the State has satisfied all the 
program description elements, EPA has determined the Commonwealth's low 
RVP program for the Pittsburgh area meets all applicable federal 
requirements for approval as a SIP revision.
    To ensure enforcement of the program, each entity in the gasoline 
dispensing network, beginning with the terminal owner, is required to 
maintain records of the date, name and address of transferor and 
transferee, the location and volume of gasoline being sold or 
transferred, and a statement certifying that the gasoline meets the RVP 
requirement. The PADEP will conduct enforcement of the program. 
Sampling will be performed in accordance with the procedures described 
by EPA in its gasoline volatility regulations in 40 CFR part 80, 
Appendix D. Gasoline volatility tests will be performed following 
procedures described by EPA in 40 CFR part 80, Appendix E.
    EPA is approving this rule without prior proposal because it 
anticipates no adverse comments and believes that expedited approval of 
the low RVP program so it is implemented for the 1998 ozone season is 
in the best interest of the citizens of the area from a public health 
perspective. However, in the proposed rules section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision should EPA receive 
relevant adverse comments on the notice of proposed rulemaking. This 
rule will become effective July 23, 1998 without further notice unless 
the Agency receives relevant adverse comments by July 8, 1998.
    Should EPA receive such comments, it will publish a notice 
informing the public that this rule did not take effect. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on the proposed rule. Parties interested in commenting on this 
action should do so at this time. If no such comments are received, the 
public is advised that this rule will become effective on July 23, 1998 
and no further action will be taken on the proposed rule.

[[Page 31119]]

Final Action

    EPA is approving as a revision to the Pennsylvania SIP, the 
provisions of Pennsylvania's regulations pertaining to low RVP gasoline 
requirements for the Pittsburgh-Beaver Valley ozone nonattainment area 
submitted by the Pennsylvania Department of Environmental Protection on 
December 3, 1997 and April 17, 1998. Nothing in this action should be 
construed as permitting or allowing or establishing a precedent for any 
future request for revision to any state implementation plan. Each 
request for revision to the state implementation plan shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA 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. This federal action authorizes and approves into the 
Pennsylvania SIP requirements previously adopted by the state, and 
imposes no new requirements. Therefore, EPA certifies 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 CAA, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of state action. The Clean Air Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more in any one year. Under 
section 205, EPA must select the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule. EPA has 
determined that this final action does not include a federal mandate 
that may result in estimated costs of $100 million or more to either 
State, local, or tribal governments in the aggregate, or to the private 
sector. This federal action authorizes and approves into the 
Pennsylvania SIP requirements previously adopted by the State, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

D. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    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 August 7, 1998. 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, pertaining to the low RVP gasoline 
volatility requirements for the Pittsburgh-Beaver Valley ozone 
nonattainment area, may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

F. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to 
any rule that is (1) likely to be ``economically significant'' as 
defined under Executive Order 12866, and (2) the Agency has reason to 
believe that the environmental health or safety risk addressed by the 
rule may have a disproportionate effect on children. If a regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to E.O. 13045, ``Protection of Children 
from Environmental Health Risks and Safety Risks'' because this is not 
an ``economically significant'' regulatory action as defined by E.O. 
12866, and because it does not involve decisions on environmental 
health or safety risks that may disproportionately affect children.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: May 15, 1998.
A.R. Morris,
Acting Regional Administrator, Region III.
    40 CFR part 52, subpart NN of chapter I, title 40 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 et seq.

Subpart NN--Pennsylvania

    2. Section 52.2020 is amended by adding paragraph (c)(131) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (131) Revisions to the Pennsylvania Regulations governing gasoline 
volatility requirements submitted on December 3, 1997 and April 17, 
1998 by the Pennsylvania Department of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letters dated December 3, 1997 and April 17, 1998 from the 
Pennsylvania Department of Environmental Protection transmitting the 
low RVP gasoline volatility

[[Page 31120]]

requirements for the Pittsburgh-Beaver Valley ozone nonattainment area.
    (B) Revisions to 25 Pa Code, Chapters 121, 126, 139 pertaining to 
Gasoline Volatility Requirements, effective November 1, 1997.
    (1) Revisions to section 121.1--definitions of compliant fuel, 
distributor, Importer, Low RVP gasoline, Pittsburgh-Beaver Valley Area, 
RVP-Reid Vapor Pressure.
    (2) Addition of sections 126.301(a) through (c), 126.302 except for 
portions relating to RFG of (a)(6), and 126.303 (a).
    (3) Addition of paragraphs 139.4(18) and (19) pertaining to 
sampling procedures for Reid Vapor Pressure and gasoline volatility.
    (ii) Additional Material--Remainder of December 3, 1997 State 
submittal pertaining to the use of low RVP gasoline.

[FR Doc. 98-15023 Filed 6-5-98; 8:45 am]
BILLING CODE 6560-50-P