[Federal Register Volume 64, Number 105 (Wednesday, June 2, 1999)]
[Rules and Regulations]
[Pages 29573-29580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13805]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NV-034-0016; FRL-6350-5]
Approval and Promulgation of Implementation Plans; Nevada State
Implementation Plan Revision, Clark County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing the approval of revisions to the Nevada
State Implementation Plan (SIP) proposed in the Federal Register on
December 11, 1998. This action specifically includes approval of
revisions to Clark County Health District's wintertime oxygenated fuels
program. This approval action will incorporate these revisions into the
federally approved SIP. The intended effect of approving these
revisions is to regulate emissions of carbon monoxides (CO) in
accordance with the requirements of the Clean Air Act, as amended in
1990 (CAA or the Act). Thus, EPA is finalizing the approval of these
revisions into the Nevada SIP under provisions of the CAA regarding EPA
action on SIP submittals, SIPs for national primary and secondary
ambient air quality standards and plan requirements for nonattainment
areas.
EFFECTIVE DATE: This action is effective on July 2, 1999.
ADDRESSES: Copies of the SIP revision and EPA's evaluation report are
available for public inspection at EPA's Region 9 office during normal
business hours. Copies of these documents are
[[Page 29574]]
also available for inspection at the following locations:
Nevada Division of Environmental Protection, Bureau of Air Quality, 123
W. Nye Lane, Carson City, NV
Clark County Health District, P.O. Box 3902, 625 Shadow Lane, Las
Vegas, NV
FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, Air Planning Office
(AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 744-1225.
SUPPLEMENTARY INFORMATION:
I. Applicability
The revisions being approved into the Nevada SIP include: Clark
County District Board of Health, (Clark County), Air Pollution Control
(APC) Section 53, Oxygenated Gasoline Program (as amended and approved
on September 25, 1997). This SIP revision was submitted by the Nevada
Division of Environmental Protection to EPA on August 7, 1998.
II. Background
On December 11, 1998, EPA proposed to approve Clark County's
Oxygenated Gasoline Program as a revision to the Nevada SIP. 63 FR
68415. EPA has evaluated the revisions for consistency with the
requirements of the CAA and EPA regulations. EPA has found that Clark
County's revisions to its wintertime gasoline oxygenated fuels program
meet applicable EPA requirements. A detailed discussion of the SIP
revisions and evaluation has been provided in the December 11, 1998
Federal Register (63 FR 68415), and in the technical support document
(TSD) available at EPA's Region IX office.
III. Response to Public Comments
A 30-day public comment period was provided in the notice of
proposed rulemaking, 63 FR 68415, December 11, 1998. EPA received only
one comment letter, from the Western States Petroleum Association
(WSPA). WSPA's comments and EPA's responses are set forth below.
A. Preemption
WSPA commented that Nevada's 3.5% oxygen content requirement is
preempted by section 211(c)(4) of the Act because EPA has previously
promulgated regulations to prescribe controls or prohibitions on the
oxygen content of gasoline and by section 211(m)(2) because this
section of the Act requires certain nonattainment areas to implement an
oxygenated gasoline program with not less than 2.7% oxygen. WSPA also
commented that Clark County's 3.5% gasoline oxygen content requirement
is preempted under the doctrines of conflict and field preemption.
EPA does not believe that Clark County's 3.5% gasoline oxygen
content requirement is barred by section 211(m) or preempted by the
Act, either explicitly under section 211(c)(4)(A) or implicitly based
on the judicial doctrines of conflict preemption or field preemption.
EPA's response to WSPA's preemption comments begins with a discussion
of consistency with section 211(m), followed by a response to the other
preemption arguments.
1. Consistency with Section 211(m)
On March 18, 1997, the Clark County Commission adopted a resolution
requesting that the Board of Health adopt the proposed regulations
specifying that the minimum oxygen content of wintertime gasoline shall
be 3.5% oxygen by weight, starting October 1, 1997. Because the Las
Vegas Valley was being designated by EPA as a serious nonattainment
area for carbon monoxide (CO), the Board of Health moved to propose the
minimum 3.5% oxygenate regulation to help reach attainment of the
National Ambient Air Quality Standards for CO.
Section 211(m)(1) requires that certain states with areas
designated nonattainment for CO implement an oxygenated gasoline
program. This applies to states containing CO nonattainment areas with
a CO design value 1 of at least 9.5 parts per million based
on 1988 and 1989 data.
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\1\ The carbon dioxide design value is a surrogate measure of
attainment status, a measure of progress, and an indicator of how
much concentrations must be reduced to meet the standard.
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Section 211(m) requires that various states submit revisions to
their SIP, and implement oxygenated gasoline programs. This section
also identifies certain elements that the state program must contain.
Section 211(m)(2)(A) identifies the geographic area of the state
program (it must apply throughout the Consolidated Metropolitan
Statistical Area (CMSA) or the Metropolitan Statistical Area (MSA)) and
the time period of the program (it must apply during that portion of
the year in which the area is prone to high ambient concentrations of
CO, as determined by the Administrator, but no less than four months).
Section 211(m)(2)(A)(B) requires that gasoline be blended to contain
not less than 2.7% oxygen. Under certain circumstances (section
211(m)(7)), gasoline must be blended to contain not less than 3.1%
oxygen. Section 211(m)(5) requires that EPA promulgate guidelines for
states to implement provisions for marketable oxygen credits. This
section also authorizes EPA to waive the above requirements under
limited circumstances.
WSPA argues that, under section 211(m), a state must adopt a 2.7%
standard and may not adopt any other standard, except as expressly
provided in section 211(m)(7). The requirement that gasoline be blended
to contain ``not less than 2.7 percent oxygen by weight'' would
therefore set both a floor and a ceiling for a minimum oxygen content
that a state must establish.2 Clark County's requirement of
a 3.5% minimum oxygen content would violate the requirements of section
211(m) under this interpretation. EPA believes that the better reading
of section 211(m)(2) is that, at a minimum, states must require that
gasoline contain 2.7% oxygen by weight, and that states could satisfy
this by requiring gasoline to contain 2.7% oxygen or by setting any
higher requirement such as 3.1% oxygen content, or 3.5% oxygen content.
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\2\ In support of its claim, WSPA points to the 1996 extension
of the CO attainment date for the Las Vegas area. WSPA argues that
in the preamble to that action EPA identified the 2.7% oxygen
content requirement without expressing that the requirement for the
area was a minimum content requirement. EPA believes WSPA has read
too much into the preamble's abbreviated listing of requirements for
the area. Nothing in that preamble indicated an intent to interpret
the confines of section 211(m)(2). In fact, EPA noted that Clark
County had revised its regulations ``to meet the minimum 2.7%
oxygenate by weight requirement of the CAA.'' 61 FR 41759, 41763
(Aug. 12, 1996).
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Neither the text of section 211(m) nor the legislative history
indicate a clear Congressional intent to prohibit states from adopting
any oxygen content requirement greater than 2.7%. This interpretation
would be inconsistent with the general structure of the Act because it
would restrict the ability of states to develop programs to meet the
federal ambient air quality standards. See Title I generally, sections
107, 110, and 116. Oxygenated gasoline is one of the simplest and most
cost-effective measures for control of carbon monoxide. This
interpretation would limit a state's ability to use this strategy for
air quality purposes, as any increase above the 2.7% minimum would only
be allowed where a severe nonattainment area had already failed to meet
its statutory deadline for attaining the NAAQS. Thus, states would be
barred from adopting any oxygen content requirement above 2.7%, even
where an area needed a more stringent
[[Page 29575]]
standard to attain the NAAQS. Instead, such a state with a moderate
nonattainment area could not take action needed to meet the air quality
standard. The area would likely have to continue to violate the
standard until it had been upgraded to a severe nonattainment area and
had missed the deadline for severe nonattainment areas to come into
compliance with the NAAQS, before it could adopt a more effective
control measure designed to help attain the NAAQS. There is no
indication that Congress intended a limitation so potentially injurious
to public health and so contrary to rational planning. This
interpretation is also inconsistent with the principle that a statute
should not be read to preempt state authority unless it is clear that
Congress intended such a result. See Medtronic, Inc. v. Lohr, 518 U.S.
470, 485 (1996); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518
(1992).
WSPA asserts that the legislative history of sections 211 (m) and
(k) shows that the 2.7% oxygen content level was set to ensure fuel
neutrality and opportunity for all oxygenates in the marketplace. They
argue that state programs requiring greater than 2.7% oxygen conflict
with this goal and Congress therefore intended to prohibit
them.3 However, while much of the legislative history of
section 211(m) concerns the appropriate level at which to set the
minimum federally mandated oxygenate requirement in the Clean Air Act,
there is no indication that Congress intended to bar the states from
setting more stringent oxygenate requirements.
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\3\ This concern arises because ethanol is currently the only
oxygenate additive that may lawfully be blended in gasoline at
levels greater than 2.7% oxygen by weight.
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The Chafee-Baucus Statement of the Senate Managers (discussing the
Conference Committee version of the bill which Congress adopted as the
1990 Amendments to the CAA) states merely that ``[t]he conference
agreement requires any gasoline sold in a carbon monoxide nonattainment
area to contain at least 2.7 percent oxygen. * * *'' Senate Committee
on Environment and Public Works, 103d Cong., 1st Sess., A Legislative
History of the Clean Air Act Amendments of 1990 (hereinafter
``Legislative History'') at 896 (1993) (statement from Senate debate on
October 27, 1990). Senator Simpson and Congressmen Sharp and Hall all
reiterated a statement that has been cited in support of the
proposition that section 211(m) bars states from requiring a higher
fuel oxygen content. ``The level of 2.7 percent was chosen in part to
provide more even opportunities for competition between the two major
oxygenates, methyl tertiary butyl ether, or MTBE, and ethyl alcohol, or
ethanol. * * * The Administrator may not discriminate among these
different oxygenates, and should encourage fair competition among
them.'' Legislative History at 1171 (statement from Senate debate on
October 26, 1990) (emphasis added). See also id. at 1216, 1328. Senator
Simpson and others added that in exercising its waiver authority under
section 211(m)(3), EPA may not approve partial waivers of the oxygenate
requirements. ``In particular, new 211 (k) and (m) already create
several new kinds of gasoline, and different oxygen concentrations may
already exist under the various NOX cap provisions of these
two subsections. Further balkanizing of the gasoline industry--with
different oxygenate concentrations in different east coast cities, for
example--potentially risks further disruptions and precision from
refiners that may not be possible.'' Id. at 1169 (statement from Senate
debate October 26, 1990). All of these statements address limitations
on EPA's, not states', authority to choose between oxygenates or set
more or less stringent oxygen content requirements. These statements
simply give no indication of whether or not Congress intended to limit
states' ability to set more stringent requirements, which might be
critical to carry out their responsibility to adopt state
implementation plans to protect the health of their citizens.
Other statements in the legislative history suggest that Congress
was primarily concerned about establishing a preference for one
oxygenate over another as a matter of federal law and intended to give
states flexibility in their fuels programs. The Senate version of the
bill provided that the wintertime oxygen content requirements would be
a direct federal mandate on the fuel producers to sell gasoline with at
least 3.1% oxygen content, rather than a directive to states for their
state implementation plans. S.1630, 103d Cong. (1990), reprinted in
Legislative History at 4119, 4388. Commenting on his proposed amendment
to substitute 2.7% for 3.1% oxygen content, Senator Lautenberg stated:
But the question is, should we, as a Federal initiative, provide
an advantage to one of these fuels over another? I do not think so.
* * * [A 2.7% requirement] would allow for open and free competition
among the various fuels and provide State and local officials with
the flexibility to decide what fuels they need in their areas. * * *
[The 3.1% requirement] takes away flexibility from State and local
officials. * * * [Quoting from State and Territorial Air Pollution
Program Administrators (STAPPA) and Association of Local Air
Pollution Control Officials (ALAPCO) letter] ``We believe it is
critically important that any alternative fuels programs be `fuel
neutral.' This would provide State and local governments with the
ability to select from a variety of fuels--not just gasohol--to
address problems (e.g., carbon monoxide and ozone) unique to their
jurisdictions.'' * * * [A]nd most importantly, as STAPPA noted, [my
amendment] would allow localities to use the fuels that best meet
their particular needs. * * * USDA notes that four States have
oxygenated fuels program in place: Arizona, Colorado, Nevada, and
New Mexico. * * * [The 3.1% requirement] would force the areas that
already have oxygenated fuels programs to scrap them and switch to
gasohol. * * *
Legislative History at 5429-5430 (statement from Senate debate on
March 7, 1990) (emphasis added). Senator Wirth added: ``As I understand
it, the amendment offered by the Senator from New Jersey would not set
this issue in concrete. It would require that oxygenated fuels sold in
these nonattainment areas contain 2.7 percent oxygen. If, a few years
down the road it makes sense for a State, or a city like Denver, to set
a higher minimum oxygen content, that possibility always exists. All we
are saying with this amendment is that we don't want to set a national
minimum oxygen content standard of 3.1 percent.'' Id. at 5457 (emphasis
added).
While Senator Lautenberg's 2.7% oxygen content amendment did not
pass in the Senate, the final CAA set a 2.7% oxygen content
requirement. Consequently, the arguments advanced by Senators
Lautenberg and Wirth should be considered indicative of some of the
reasons underlying Congress' final decision to adopt a 2.7% minimum
standard rather than a 3.1% minimum standard. As enunciated by Senators
Lautenberg and Wirth, preserving state flexibility to make choices
regarding the best fuel requirements for a particular locality was an
important motivation for preferring 2.7% over 3.1%. This goal hardly
comports with an intent to limit states' ability to adopt oxygen
content requirements more stringent than 2.7%. Senator Wirth's
statement, in particular, makes it clear that these provisions were not
intended to prevent states from adopting more stringent requirements.
Nor did Senator Wirth anticipate that states would have to jump any
particular hurdle before adopting such requirements. Rather, he stated
``that possibility always exists'' if ``down the road it makes sense.''
In addition, during the debates over the Senate bill several
senators referred to the existing oxygenated fuels
[[Page 29576]]
programs that states were already implementing at that time. At least
one of those programs was more stringent than 2.7%. Nowhere was it
suggested or noted that the legislation would require the state to
remove that program. In contrast, Senator Lautenberg explicitly raised
as an objection to the 3.1% requirement that it would negate existing
state programs mandating a 2.7% oxygen content.
The most reasonable inference from this legislative history is that
Congress did not want to directly mandate that all state programs under
section 211(m) require greater than 2.7% oxygen, as this would severely
reduce the flexibility of states to develop their own programs and
would by act of Congress directly limit open competition in the
marketplace between oxygenates.4 Congress rejected a
provision that would require all state oxygenated gasoline programs
under section 211(m) to require 3.1% oxygen content. Instead, Congress
set the minimum amount acceptable under section 211(m) at 2.7%, and
only mandated that states adopt standards setting a higher oxygen
content under limited circumstances. Section 211(m)(7) 5.
While Congress rejected a federal requirement for an oxygen content
greater than 2.7%, there is no similar indication that Congress
intended to prohibit states from adopting such programs where the state
considered it appropriate. To the contrary, the statements of
individual congressmen indicate an intent to preserve state
flexibility. Section 211(m)'s provision on marketable oxygen credits
also supports this view. While Congress did not mandate that states
adopt such credit programs, they are explicitly authorized to do so.
This gives states the flexibility to structure their programs as
desired, including the ability to adopt credit programs to promote the
use of various oxygenates even where the minimum oxygen content is
greater than 2.7%.6
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\4\ Similarly, certain members of Congress indicated that they
did not want EPA, the federal agency implementing section 211(m), to
use its waiver authority under sections 211(m) and 211(k) in a
manner that would limit the marketplace.
\5\ WSPA claims that treating the 2.7% oxygen content
requirement in section 211(m)(2) as merely a floor would effectively
read out of the statute section 211(m)(7), which requires serious
nonattainment areas to require gasoline with a minimum oxygen
content of 3.1 %. EPA is not persuaded by WSPA's logic. Because both
section 211(m)(2) and 211(m)(7) are phrased in terms of minimum
requirements, there is no inconsistency created by allowing states
to adopt programs that meet or exceed these requirements. Section
211(m)(7) still serves a purpose--it requires an increase in the
minimum oxygenate content for certain serious nonattainment areas
that have not previously exercised their discretion to require
greater oxygen content levels.
\6\ For example, if a state sets an oxygen content standard of
3.1% without any provisions for a credit program, refiners could not
meet such a requirement by using MTBE. If a state included a credit
program, however, refiners could meet a 3.1% oxygen content standard
by supplying a combination of some oxygenated gasoline using ethanol
(at 3.5% oxygen content) and some oxygenated gasoline using MTBE (at
2.7% oxygen content).
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Section 211(m) is most reasonably interpreted as requiring adoption
of an oxygenated gasoline program with any weight percent oxygen
content requirement that will result in gasoline being blended to
contain not less than 2.7% oxygen by weight. A content requirement of
2.7% or higher satisfies this requirement and is authorized by section
211(m). This interpretation is consistent with the terms of section
211(m) and the legislative history discussed above. It is also
consistent with the Clean Air Act's basic approach of providing
flexibility to the states in developing state programs to achieve and
maintain the NAAQS. Under the Act, states have the primary
responsibility for determining the manner by which to achieve these air
quality standards. See CAA section 116; Virginia v. EPA, 108 F.3d 1397
(D.C. Cir. 1997), reh'g granted, 116 F.3d 499 (D.C. Cir. 1997)
(modifying so as not to vacate Part 85 of EPA's final rule). EPA has
relied on this interpretation in approving SIP revisions for state
programs. See 62 FR 10690 (March 10, 1997) (approval of 3.1% oxygen
content requirement for Denver, CO); 62 FR 49442 (September 22, 1997)
(approval of 3.5% oxygen content as a contingency measure for Spokane,
WA).
2. Preemption under the Clean Air Act
WSPA has raised three separate arguments claiming that state
programs under section 211(m) requiring gasoline blending at levels
greater than 2.7% are preempted under the Act, except where required
under section 211(m)(7). The first argument is that section
211(c)(4)(A) prohibits such programs absent a showing of necessity
under section 211(c)(4)(C). The second argument is that the state
program is in conflict with the Clean Air Act and is therefore
preempted. Finally, it has been argued that the state program is
preempted because Congress through the Clean Air Act has occupied the
field of gasoline oxygen content controls.
a. Preemption under section 211(c)(4). Section 211(c)(4) of the Act
is a provision of general applicability that expressly prohibits state
fuel controls under specified circumstances. Section 211(c)(1) of the
Act authorizes EPA to prescribe a control or prohibition on a fuel or
fuel additive upon a finding that emissions products from such fuel or
fuel additive may endanger public health or welfare, or impair emission
control devices or systems.
Section 211(c)(4)(A) prohibits states from prescribing or
attempting to enforce a control or prohibition respecting any
characteristic or component of a fuel or fuel additive if EPA has
prescribed a control or prohibition applicable to the same
characteristic or component under section 211(c)(1).7 This
prohibition does not apply if the state control is identical to
EPA's.8 Section 211(c)(4)(C) provides that a state may
prescribe and enforce such a nonidentical fuel control or prohibition
if EPA approves the provision in a state implementation plan (SIP). EPA
may approve the state control or prohibition in a SIP only if it is
necessary to achieve the NAAQS that the plan implements.
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\7\ State regulation is also prohibited if EPA publishes a
finding in the Federal Register that no control or prohibition of
the characteristic or component is necessary.
\8\ The prohibition also does not apply to California. Section
211(c)(4)(B).
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For the purpose of determining whether a state gasoline requirement
is preempted under section 211(c)(4)(A), EPA believes it is appropriate
to look at the federal gasoline requirements applicable in the area
where the state requirements would apply. For further discussion see
the May 26, 1998 letter from Margo T. Oge, Director, US EPA Office of
Mobile Sources in the docket for this action. (See docket file: NV-OXY-
98-VI.) Clark County is subject to the conventional gasoline
requirements, not the RFG requirements. 40 CFR 80.70; 40 CFR
80.101(b)(3). Thus, any preemption under section 211(c)(4)(A) of Clark
County's oxygen content controls would have to be based on federal
oxygen content requirements found in the conventional gasoline
regulations. The only conventional gasoline provision adopted under
section 211(c)(1) that directly references oxygen content is the use of
oxygen content as an input into the Complex Model, which is used to
measure emissions performance for the exhaust toxics and NOX
performance standards. As discussed below, however, EPA need not
address the issue of whether the conventional gasoline provisions
arguably preempt state control of oxygen in conventional gasoline areas
because EPA believes that section 211(m) authorizes the Clark County
requirement and overrides any potential preemption under section
211(c)(4).
[[Page 29577]]
Even assuming a state control on oxygen content would otherwise be
preempted under section 211(c)(4)(A), in the absence of section 211(m),
a threshold issue is whether the CAA requires the state to satisfy both
the necessity requirement of section 211(c)(4)(C) as well as the
requirements of section 211(m) for the state oxygenated gasoline
program to be approved into a SIP.9 WSPA asserts, ``[I]f
Congress intended to exempt CAA Sec. 211(m) from the preemption
provisions of Sec. 211(c)(4)(A) it would certainly have done so
expressly within Sec. 211(m).'' EPA disagrees. EPA believes section
211(m) itself is an express statement on the ability of states to
control oxygen content. It seems more logical to conclude that, given
Congress' intent to provide state flexibility and ensure attainment of
the CO NAAQS, if Congress has intended states also to satisfy the
conditions of 211(c)(4), it would have expressly referenced that
section.
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\9\ This issue only arises where a state control would be
preempted under section 211(c)(4)(A) (without reference to the
requirements of section 211(m)). If the state control would not be
preempted under section 211(c)(4)(A), then the criteria for approval
of a SIP in section 211(c)(4)(C) are not applicable. The SIP
revision would have to be consistent with section 211(m) but not
section 211(c)(4)(C).
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EPA believes the most reasonable interpretation is that those
elements of a state oxygenated gasoline program within the range of
programs specified by section 211(m) are not subject to the preemption
provisions of section 211(c)(4). However, those elements of a state
oxygenated gasoline program beyond the range of programs specified by
section 211(m) would be subject to section 211(c)(4)(A) and, if
preempted, would be required to show necessity under section
211(c)(4)(C).10
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\10\ EPA discussed the relationship between 211(m) and 211(c)(4)
in approving a CO SIP revision for New Jersey. See 61 FR 5299
(February 12, 1996).
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The interaction of section 211(c)(4) and section 211(m) is not
addressed in the text of these provisions, and it is not discussed in
the legislative history. The structure of section 211, however,
indicates that section 211(m) is the best indication of Congressional
intent concerning the criteria for SIP approval of state programs in
the designated CO nonattainment areas. While section 211(c)(4)
addresses state fuel control programs in general, Congress specifically
addressed state oxygenated gasoline programs in section 211(m).
Congress required that certain states adopt these programs, and
Congress specified several elements that the programs must contain. Yet
Congress did not indicate that the section 211(m) requirements for a
state oxygenated gasoline program may be subject to preemption under
section 211(c)(4) and, if preempted, could not be approved absent a
showing of necessity under section 211(c)(4)(C). It is reasonable to
interpret section 211 such that the requirement of a necessity showing
under section 211(c)(4)(C) does not apply to those elements of a state
program that are specified in section 211(m) because the more specific
provisions of section 211(m) take precedence over the more general
provisions of section 211(c)(4) for those elements. Congress required
states to adopt those elements of a program and submit them as a SIP
revision, and Congress expected that EPA would be able to approve such
a SIP revision without a further showing of necessity under section
211(c)(4)(C).
Consider, for example, a state oxygenated gasoline program that
extends beyond the boundaries of the CMSA or MSA. Section 211(m)
contains a specific requirement regarding geographic scope--the program
must include the entire CMSA or MSA. Requiring oxygenated gasoline
within the CMSA/MSA is clearly within the range of program elements
specified under section 211(m), and thus such a state requirement would
not be subject to the preemption and necessity demonstration provisions
of section 211(c)(4). If section 211(m) and 211(c)(4) were not
interpreted in this manner, a state program might satisfy this
requirement of section 211(m), but if oxygen content requirements were
preempted under section 211(c)(4)(A), the state program might still not
be approvable into the SIP.11 This would be contrary to the
clear purpose of section 211(m) that certain states would have approved
into their SIPs and implement the oxygenated gasoline requirements
specified in section 211(m).
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\11\ For example, preempted state fuel controls may not be
approved for a waiver unless they are necessary for achieving a
NAAQS. As a result, waivers for fuel measures can only be justified
for areas where emission reductions are necessary for a NAAQS. The
211(m) program, however, requires adoption of the oxygen control
throughout the MSA or CMSA, irrespective of need. It is conceivable
that the area needing CO reductions to achieve the NAAQS is smaller
than the MSA or CMSA. Thus a state might find itself required by
211(m) to adopt a control for the entire MSA or CMSA, and yet unable
to justify a waiver under 211(c)(4) for an oxygen control applicable
to the entire area.
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That portion of the state program requiring oxygenated gasoline
beyond the CMSA or MSA, however, involves a state gasoline control
beyond that which Congress required or expected in order to comply with
section 211(m). Hence, such a provision should be subject to the
requirements of section 211(c)(4)(C) if the state program would
otherwise be preempted under section 211(c)(4)(A). The structure of
section 211 does not indicate that oxygenated gasoline requirements
beyond the geographic area specified in section 211(m) should be
approvable without restriction under section 211(c)(4)(C).
The elements of geographic scope and control period are clearly
specified in section 211(m) as a single area or time
period.12 However, the oxygen content requirement is not
limited to a single specified value. Congress did not specify, for
example, that the state program must require exactly 2.7% oxygen
content, nor, as discussed above, did Congress prohibit states from
establishing a larger weight percent requirement. Instead Congress
specified that the SIP revisions must contain provisions requiring that
gasoline be blended to contain not less than 2.7% oxygen by weight.
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\12\ Section 211(m)(2) provides that the requirements shall
apply during the portion of the year in which the area is prone to
high ambient concentrations of CO, which shall be as determined by
the Administrator. The Administrator may not select a time period of
less than four months, except under limited specified circumstances.
For any given area, the Administrator would determine a specific
time period in which the area is prone to high ambient
concentrations of CO.
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Arguably, the oxygen content requirements of section 211(m) could
be read in the same manner as the geographic scope and control period
provisions. Under this approach, a state requirement that is set at
2.7% would not be subject to the preemption provisions of section
211(c)(4), including the necessity showing under section 211(c)(4)(C).
However, for any requirement above 2.7%, the state would have to show
that the requirement is necessary, if the state program would otherwise
be preempted under section 211(c)(4)(A).13
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\13\ Section 211(c)(4)(C) would not apply under this
interpretation where a state program was required to require at
least 3.1% oxygen content under section 211(m).
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An alternative interpretation is that the oxygen content
requirements of section 211(m)(2) call for any one of a range of
minimum concentrations, and not one specific level. Any content
requirement that results in gasoline containing not less 2.7% oxygen is
within the scope of programs authorized and envisioned by Congress
under section 211(m). Under this interpretation, a state requirement of
greater than 2.7% oxygen content would not be subject to preemption
under section 211(c)(4) and the state would
[[Page 29578]]
not need to show necessity under section 211(c)(4)(C).
EPA believes that the latter interpretation better implements
Congressional intent. The text of section 211(m)(2) is reasonably read
to envision a range of oxygen contents, whereas the geographic scope
and control period are specifically identified as a single area or time
period. The legislative history indicates that Congress intended to
provide flexibility to states regarding oxygen content, and did not
want to restrain that flexibility by setting a federal mandate for a
specific oxygen level that states must require. While Congress
deliberately rejected a federal mandate that would reduce the market
opportunities for various oxygenates, it did this with the goal of
preserving state flexibility, not limiting it, and the latter
interpretation is consistent with this goal. Moreover, the overall
structure established by the Act supports this interpretation, as the
Act assigns states the primary responsibility to adopt programs to
achieve clean air goals and preserves flexibility for the states in
developing the programs needed to satisfy this role. This
interpretation is also consistent with the general principle of
avoiding a statutory interpretation that preempts state action unless
Congressional intent to do so is clear. See Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996); Cipollone v. Liggett Group, Inc., 505 U.S.
504, 518 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947). Thus, EPA believes that a state is not preempted under the
provisions of section 211(c)(4) from adopting a weight percent oxygen
requirement greater than 2.7% under a section 211(m) state program,
within the geographic scope and control period specified in section
211(m), and that EPA may approve a SIP revision to implement such a
section 211(m) program without a showing of necessity under section
211(c)(4)(C).
b. Conflict preemption. WSPA commented that Clark County's 3.5%
oxygen rule is preempted under the doctrine of conflict preemption
because it hinders the accomplishment of a federal objective--namely
EPA's ``charge'' under the waiver provisions of section 211(m)(3) to
``ensur(e) that the areas with the greatest need for oxygenated
gasoline receive priority in obtaining such gasoline.'' WSPA has not
documented any problem with the supply or availability of compliant
gasoline or oxygenates. In fact, refiners have been providing gasoline
containing a minimum 3.5% oxygen content for at least two winter
seasons, and there are no indications of a lack of supply of oxygenates
in other areas subject to section 211(m). Thus, there do not appear to
be concerns under 211(m)(3). Likewise, WSPA has not supported its
conflict preemption assertion.
A federal statute implicitly overrides a state law when the state
law is in actual conflict with the federal law. This occurs when it is
impossible for a private party to comply with both the state and
federal requirements, or where the state law stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of
Congress. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)
(quoting English v. General Electric Co., 496 U.S. 72, 78-79 (1990) and
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Contrary to WSPA's
comments, EPA has not seen any evidence indicating that the Clark
County provisions for oxygenated gasoline would lead to either of these
results. First, there is no impossibility here; it is practically and
legally possible to blend and supply gasoline that meets the federal
conventional gasoline requirements and that has an oxygen content of
3.5%. Second, EPA does not believe that the 3.5% oxygen content
requirement would be an obstacle to the accomplishment and execution of
Congress' purposes. Here, a primary objective of Congress is that
gasoline meet all of the applicable requirements specified in section
211, including the oxygenated gasoline provisions of section 211(m),
the summertime RVP requirements of section 211(h), and the conventional
gasoline requirements of section 211(k)(8). A state program requiring
greater than 2.7% oxygen content is not an obstacle to accomplishing
this Congressional objective; rather, it is consistent with the
requirements of section 211(m) and the goals of Congress embodied in
this provision. By providing that states must set an oxygen content at
least as stringent as 2.7%, section 211(m) contemplates that states may
require higher oxygen contents. In addition, such higher oxygen content
requirements do not conflict with the federal summertime RVP or
conventional gasoline requirements applicable in Clark
County.14 There is no evidence that the Clark County
requirement would conflict with or interfere with the specifications
for annual oxygen content limits in the conventional gasoline program,
or interfere with refiners' or importers' ability to produce complying
conventional gasoline.
---------------------------------------------------------------------------
\14\ Issues concerning conflict with the requirements or goals
of the federal reformulated gasoline program need not be addressed
to evaluate the Clark County program.
---------------------------------------------------------------------------
c. Field preemption. WSPA further commented that Clark County's
3.5% oxygen requirement is preempted under the doctrine of field
preemption. WSPA, however, does not elaborate on this claim.
A state program is preempted under field preemption where Congress
has implicitly indicated an intent to occupy a given field to the
exclusion of state law. ``Such a purpose properly may be inferred where
the pervasiveness of the federal regulation precludes supplementation
by the States, where the federal interest in the field is sufficiently
dominant, or where the object sought to be obtained by federal law and
the character of obligations imposed by it * * * reveal the same
purpose.'' Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1987)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
Here, neither section 211(m) nor section 211 as a whole establishes
a comprehensive federal presence. Instead, the fuels programs under
section 211 provide a number of federal requirements but also
explicitly preserve a role for the states in regulating fuels. Section
211(c)(4) explicitly preempts state action, but only under certain
circumstances, and provides an exemption from preemption under section
211(c)(4)(C). Section 211(m) requires states, not the federal
government, to adopt oxygenated gasoline programs. As discussed above,
state programs requiring greater than 2.7% oxygen content are within
the range of programs authorized under section 211(m), and Congress did
not intend to prohibit them. Thus, federal regulation here is not so
pervasive as to preclude supplementation by states, nor is the federal
interest in the field sufficiently dominant to preempt state action.
State programs under section 211(m) requiring greater than 2.7%
oxygen content are therefore not preempted based on either conflict or
field preemption.
d. Preemption under 211(f). WSPA also appears to argue that EPA's
authority to grant waivers from the substantially similar prohibition
of section 211(f)(1), and its authority to control or ban fuel
additives under section 211(c)(1), mean that only EPA can act to
allegedly ban the use of a fuel additive such as MTBE, not states. In
addition, WSPA claims that EPA must satisfy the requirements of section
211(c)(1) before it could approve Nevada's SIP provision.
[[Page 29579]]
EPA has explained above that the Clark County provision is neither
expressly prohibited under section 211(c)(4), nor implicitly prohibited
under conflict or field preemption. EPA's authority under sections
211(c)(1) and (f)(4) does not provide an additional basis for
preemption of state fuel controls. Congress indicated expressly in
section 211(c)(4) what state fuel controls are prohibited, and there is
no reason to believe EPA's authority to act under section 211(c)(1) and
(f)(4) indicates a Congressional intent to preempt state fuel controls
not otherwise preempted under section 211(c)(4). In addition, EPA's
authority to act on a state SIP submission is not based on or limited
by section 211(c)(1). Nothing in section 211(c) or (m) or section 110
indicates that section 211(c)(1) applies to EPA's action on a state SIP
submission involving a state oxygenated gasoline program. Such an
interpretation would run counter to the central structure of the Act,
by limiting a state's SIP measures to only those provisions that EPA
could or would be able to adopt under it's own federal authority.
B. Regulatory Negotiation Agreement
WSPA commented that EPA's approval of Clark County's SIP revision
``violates the spirit, if not the letter * * * '' of an Agreement in
Principle entered into in August 1991 between EPA, environmental
groups, state and local agencies, and industry. WSPA claims the parties
agreed that during the control periods for CO nonattainment areas the
required oxygenate level in gasoline would be set at 2.7 percent by
weight. WSPA also claims that EPA agreed on how to limit components in
conventional gasoline areas and to invoke 211(c) to preempt state
regulation of fuel. The 1991 Agreement in Principle was an agreement on
the underlying principles to be proposed for implementation of the
then-new provisions of sections 211(k) and 211(m). Nothing in the
Agreement suggests that states subject to 211(m) are prohibited from
requiring oxygen content levels greater than the statutory minimum. The
Agreement outlines the minimum oxygen content levels to be proposed for
reformulated gasoline (RFG) and describes the ranges of oxygen content
that will be deemed to comply with NOX standards in RFG
areas. These provisions both applied to the ``simple model'' for
certifying RFG. These provisions are not informative for this
rulemaking because: (1) Las Vegas is not an RFG area; (2) nothing in
the provisions states that higher oxygen content levels are prohibited;
and, (3) the simple model described in these provisions has been
replaced by the ``complex model'' throughout the country.15
See 40 CFR 80.42(c)(2).
---------------------------------------------------------------------------
\15\ The complex model includes ranges of fuel components that
the model can accept for predicting the emissions that will result
from use of a particular fuel. The range for oxygen content that the
model can accept is 0.0 to 4.0 percent by weight. See 40 CFR
80.45(f)(1). Clark County's 3.5% requirement fits within the range
limits of the model.
---------------------------------------------------------------------------
The Agreement also described the oxygenated gasoline guidelines
that EPA would recommend. This section of the Agreement highlighted
state flexibility by stating, ``While recognizing state discretion, EPA
guidelines shall recommend a credit program. * * *'' The elements of
the recommended credit program do not suggest that states be limited to
the statutory minimum requirements of 211(m). Likewise nothing in the
Agreement suggests that 211(c) preempts state compliance with 211(m) or
that 211(c) would be used in any way beyond that provided by the
statute.
C. Commerce Clause of the U.S. Constitution
Finally, WSPA commented that Clark County's 3.5% gasoline oxygen
content requirement is barred by the Commerce Clause. WSPA argues that
the Clark County Board of Health's purpose for enacting the requirement
is unclear and that the Board may have enacted the requirement with the
ulterior motive of ``protect(ing) economic interests of ethanol
providers within the state. * * * '' The record clearly indicates that
the Board's purpose in adopting the requirement is to address Clark
County's carbon monoxide air quality problem and the attendant health
risks which it poses to the local population. WSPA has not submitted
any documentation to the contrary and there is no basis for EPA to
believe that the Board's motives were other than those stated in the
record. WSPA has also failed to submit documentation to support its
assertion that the 3.5% oxygen content requirement imposes an
unreasonable burden on interstate commerce. Fuel suppliers in Clark
County have been complying with the 3.5% oxygen requirement for a
number of years--first voluntarily and, since October 1997, pursuant to
the Clark County rule.
IV. EPA Action
EPA is finalizing action to approve the above revisions for
inclusion into the Nevada SIP. EPA is approving the submittal under
section 110(k)(3) as meeting the requirements of section 110(a) and
Part D of the CAA. This approval action will incorporate Clark County's
revisions into the federally approved SIP. The intended effect of
approving these revisions is to regulate emissions of CO in accordance
with the requirements of the CAA.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, Regulatory
Planning and Review.
B. Executive Order 12875
Under Executive Order 12875, Enhancing the Intergovernmental
Partnership, EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to the Office of
Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the 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
[[Page 29580]]
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency. This rule is not subject to E.O.
13045 because it does not involve decisions intended to mitigate
environmental health or safety risks.
D. Executive Order 13084
Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because 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 that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of 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).
F. 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
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. 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 the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
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).
H. 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 2, 1999. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: May 19, 1999.
Laura Yoshii,
Acting Regional Administrator, Region IX.
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 et seq.
Subpart DD--Nevada
2. Section 52.1470 is amended by adding paragraph (c)(38)to read as
follows:
Sec. 52.1470 Identification of plan.
* * * * *
(c) * * *
(38) On August 7, 1998, regulations for the following Health
District were submitted by the Governor's designee.
(i) Incorporation by reference.
(A) Clark County Health District.
(1) Section 53 adopted on September 25, 1997.
[FR Doc. 99-13805 Filed 6-1-99; 8:45 am]
BILLING CODE 6560-50-P