[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70589-70592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32373]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA074-4094a; FRL-6501-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Pennsylvania; Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on a revision to the 
Commonwealth of Pennsylvania State Implementation Plan (SIP). The 
revision makes the oxygenated gasoline program a contingency measure 
for the five-county Philadelphia area, which means that the oxygenated 
gasoline program would only be required to be implemented in the five-
county Philadelphia area if there is a violation of the carbon monoxide 
(CO) national ambient air quality standard (NAAQS). The revision also 
makes technical amendments to the oxygenated gasoline regulation. EPA 
is approving this revision in accordance with the requirements of the 
Clean Air Act.

DATES: This rule is effective on February 15, 2000 without further 
notice, unless EPA receives adverse written comment by January 18, 
2000. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments should be mailed to David L. Arnold, Chief, 
Ozone and Mobile Sources Branch, Mailcode 3AP21, US Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, US Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and 
Radiation Docket and Information Center, US Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; Pennsylvania Department 
of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 
Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Mrs. Kelly L. Bunker, (215) 814-2177, 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    Motor vehicles are significant contributors of carbon monoxide (CO) 
emissions. An important control measure to reduce these emissions is 
the use of cleaner-burning oxygenated gasoline. Extra oxygen enhances 
fuel combustion and helps to offset fuel-rich operating conditions, 
particularly during vehicle starting, which are more prevalent in the 
winter.
    Section 211(m) of the Clean Air Act, 42 U.S.C. 7401 et seq. (the 
Act), requires that states with carbon monoxide nonattainment areas 
with design values of 9.5 parts per million (ppm) or more, based on 
data for the two year period of 1988 and 1989 or any two year period 
after 1989, submit revisions to their State Implementation Plan (SIP) 
which establish oxygenated gasoline programs. Each state's oxygenated 
gasoline programs must require gasoline in the specified control areas 
to contain not less than 2.7% oxygen by weight, except that states may 
adopt an averaging program employing marketable oxygen credits. Where 
an averaging program is adopted, gasoline containing oxygen above 2.7% 
by weight may offset the sale of gasoline with a oxygen content below 
2.7% by weight.
    The minimum 2.7% standard shall apply during that portion of the 
year in which the areas are prone to high ambient concentrations of CO. 
The Act requires that the oxygenated gasoline program apply to all 
gasoline sold or dispensed in the larger of the Consolidated 
Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical 
Area (MSA) in which the nonattainment area is located. Under section 
211(m)(2), the length of the control period, to be established by the 
EPA Administrator, shall not be less than four months in length unless 
a state can demonstrate that, because of meteorological conditions, a 
reduced control period will assure that there will be no carbon 
monoxide exceedances outside of such reduced period. EPA announced 
guidance on the establishment of control periods by area in the Federal 
Register on October 20, 1992.1
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    \1\ See ``Guidelines for Oxygenated Gasoline Credit Programs and 
Guidelines on Establishment of Control Periods under Section 211 (m) 
of the Clean Air Act as Amended--Notice of Availability,'' 57 FR 
47853 (October 20, 1992).
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    In addition to the guidance on establishment of control period by 
area, EPA has issued additional guidance related to the oxygenated 
gasoline program. On October 20, 1992, EPA announced the availability 
of oxygenated gasoline credit program guidelines in the Federal 
Register.2 Under a credit program, marketable oxygen credits 
may be generated from the sale of gasoline with a higher oxygen content 
than is required (i.e. an oxygen content greater than 2.7 percent by 
weight). These oxygen credits may be used to offset the sale of 
gasoline with a lower oxygen content than is required. Where a credit 
program has been adopted, EPA's guidelines provide that no gallon of 
gasoline should contain less than 2.0% oxygen by weight. EPA issued 
labeling regulations under section 211(m)(4) of the Act. These labeling 
regulations were published in the Federal Register on October 20, 
1992.3
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    \2\ See note 1, above. EPA was issued guidelines for credit 
programs under section 211(m)(5) of the Act.
    \3\ See ``Notice of Final Oxygenated Fuels Labeling Regulations 
under section 211(m) of the Clean Air Act as Amended--Notice of 
Final Rulemaking,'' 57 FR 47769. The labeling regulations may be 
found at 40 CFR 80.35.
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II. Background

    The Philadelphia-Camden County CO nonattainment area had a design 
value above 11.6 ppm based on 1988 and 1989 data and consequently was 
subject to the requirement to adopt an oxygenated gasoline program 
under section 211(m) of the Act. The oxygenated gasoline program was 
required to be implemented in the Pennsylvania portion of the 
Philadelphia CMSA. The Pennsylvania portion of the Philadelphia CMSA 
includes the counties of Bucks, Chester, Delaware, Montgomery and 
Philadelphia.
    On November 12, 1992 the Commonwealth of Pennsylvania officially 
submitted to EPA a revision to the Pennsylvania SIP for an oxygenated 
gasoline program in the Pennsylvania portion of the Philadelphia CMSA. 
Pennsylvania's oxygenated gasoline regulations, 25 PA Code Chapters 121 
and 126, required the implementation of an averaging program employing 
marketable oxygen credits. EPA approved these revisions to the SIP on 
July 21, 1994 (59 FR 37162).
    On August 19, 1995, Pennsylvania adopted two major modifications to 
their oxygenated gasoline regulations. The first modification allows 
for the discontinuance of the oxygenated gasoline program in a control 
area if EPA approves a redesignation request for the control area which 
does not require the implementation of an oxygenated gasoline program. 
The Pennsylvania oxygenated gasoline regulation also states that if an 
area is redesignated to attainment and then violates the CO standard 
that the program must be reinstated in

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accordance with the provisions of the maintenance plan. The second 
modification to Pennsylvania's oxygenated gasoline regulation was to 
switch from an averaging program to a per-gallon program. This 
modification was necessary because it became apparent that none of the 
facilities participating in this program used the averaging provisions 
of the regulation, and it is not anticipated that anyone will do so in 
the future. Therefore, the attest engagement and certain reporting 
requirements which were needed for implementation of an averaging 
program were no longer necessary and were removed from the regulation.
    On September 8, 1995 the Commonwealth of Pennsylvania submitted to 
EPA a redesignation request and maintenance plan for the Philadelphia 
portion of the Philadelphia-Camden County CO nonattainment area. In its 
demonstration of maintenance, the Commonwealth showed that oxygenated 
gasoline in the Pennsylvania portion of the Philadelphia CMSA was not 
necessary for continued maintenance of the CO national ambient air 
quality standards (NAAQS). The oxygenated gasoline program was 
relegated to a contingency measure in the maintenance plan. If the 
redesignated area violates the CO standard then the oxygenated gasoline 
program would be reinstated at the beginning of the next oxygenated 
gasoline control period. EPA approved the redesignation request and 
maintenance plan on January 30, 1996 (61 FR 2926).
    On September 13, 1995, the Commonwealth of Pennsylvania submitted 
the August 19, 1995 oxygenated gasoline regulation modifications as a 
formal revision to its State Implementation Plan (SIP). The submittal 
consisted of copies of the proposed and final oxygenated gasoline 
regulations, 25 Pennsylvania (PA) Code Chapters 121 and 126, copies of 
the Pennsylvania Bulletin's notice of proposed and final rulemaking, 
comment and response documents and proof that public notice and hearing 
was given on the proposed regulation. The SIP revision consists of 
revisions to 25 PA Code Chapter 121, General Provisions, section 121.1 
Definitions, the additions of section 126.101 General, section 126.102 
Sampling and testing, section 126.103 Recordkeeping and reporting and 
section 126.104 Labeling requirements to 25 PA Code Chapter 126 and the 
removal of section 126.1 Oxygenate content of gasoline from 25 PA Code 
Chapter 126. These regulatory revisions were adopted by the 
Commonwealth on April 18, 1995 and became effective on August 19, 1995. 
The September 13, 1995 SIP submittal is the subject of this action. EPA 
summarizes its analysis of the state submittal below. A more detailed 
analysis of the state submittal is contained in a Technical Support 
Document (TSD) which is available from the Region III office listed in 
the ADDRESSES section of this document.

III. EPA's Analysis of Pennsylvania's Oxygenated Gasoline Program

    As discussed above, section 211(m)(2) of the Act requires that 
gasoline sold or dispensed for use in the specified control areas 
contain not less than 2.7 percent oxygen by weight. Under section 
211(m)(5), the EPA Administrator issued guidelines for credit programs 
allowing the use of marketable oxygen credits. The Commonwealth of 
Pennsylvania has elected to adopt a regulation requiring 2.7% oxygen 
content for each gallon of gasoline sold in a control area. The 
following sections of this document address some specific elements of 
the state's submittal.

Applicability and Program Scope

    Section 211(m)(2) requires oxygenated gasoline to be sold during a 
control period based on air quality monitoring data and established by 
the EPA Administrator. Pennsylvania has established the control period 
as November 1 to February 29 which is consistent with the EPA guidance. 
Section 211(m)(2) requires that the oxygenated gasoline program apply 
to all gasoline sold or dispensed in the larger of the CMSA or MSA in 
which the nonattainment area is located. The Pennsylvania oxygenated 
gasoline regulations require oxygenated gasoline to be sold in areas as 
determined by section 211(m) of the Act.

Transfer Documents

    The Commonwealth of Pennsylvania has included requirements related 
to transfer documentation in its regulation. These transfer document 
requirements will enhance the enforcement of the oxygenated gasoline 
regulation, by providing a paper trail for each gasoline sample taken 
by state enforcement personnel.

Enforcement and Penalty Schedules

    State oxygenated gasoline regulations must be enforceable by the 
state oversight agency. EPA recommends that states will visit at least 
20% of regulated parties during a given control period. Inspections 
should consist of product sampling and record review. In addition, each 
state should devise a comprehensive penalty schedule. Penalties should 
reflect the severity of a party's violation, the compliance history of 
the party, as well as the potential environmental harm associated with 
the violation.
    The Pennsylvania regulation does not address enforcement 
provisions; however, enforcement provisions for the oxygenated gasoline 
program are found in section 9 of the Pennsylvania Air Pollution 
Control Act as amended on June 29, 1992. The Pennsylvania Air Pollution 
Control Act allows for the adoption of regulations for oxygenated 
gasoline. Section 9 of the Pennsylvania Air Pollution Control Act 
states that employees of the Department of Environmental Resources who 
are authorized to conduct inspections or investigations are declared to 
be law enforcement officers and are authorized to issue or file 
citations for violations of any regulation adopted under the 
Pennsylvania Air Pollution Control Act, and that the General Counsel is 
authorized to prosecute the offenses. This section provides for 
authority to enforce the oxygenated gasoline regulation. Section 9 also 
provides for penalty provisions. The provisions provided are both civil 
and criminal, depending on the type and severity of the violation. 
Pennsylvania's enforcement and penalty provisions are acceptable.

Test Methods and Laboratory Review

    EPA's sampling procedures are detailed in Appendix D of 40 CFR part 
80. EPA has recommended that states adopt these sampling procedures. 
The Commonwealth of Pennsylvania has adopted EPA sampling procedures. 
Each state regulation must include a test method and procedures for the 
calculation of oxygen content in the gasoline sampled. EPA's guidance 
``Guidelines for Oxygenated Gasoline Credit Programs under Section 
211(m) of the Clean Air act as Amended,'' issued on October 20, 1992, 
allow for the use of either the oxygenate flame ionization detector 
(OFID) test, preferred by EPA, or the American Society for Testing and 
Materials (ASTM) standards test method, Designation D 4815-89, although 
another method could be used if approved by EPA. This guidance document 
also describes the calculations to determine the oxygen content of the 
gasoline. The Commonwealth of Pennsylvania regulations require the use 
of the testing methods and calculations specified in EPA's guidance.

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Labeling

    EPA was required to issue federal labeling regulations under 
section 211(m)(4) of the Act. These regulations, published in the 
Federal Register on October 20, 1992, required the following statement 
be posted for a per-gallon program or credit program with minimum 
oxygen content requirement:

    ``The gasoline dispensed from this pump is oxygenated and will 
reduce carbon monoxide pollution from motor vehicles.''

    The Federal regulation also specifies the appearance and placement 
requirements for the labels. EPA has strongly recommended that states 
adopt their own labeling regulations, consistent with the Federal 
regulation. The Commonwealth of Pennsylvania has adopted labeling 
regulations consistent with the federal regulation.

IV. Final Action

    EPA is approving the amendments to 25 PA Code Chapter 121, General 
Provisions, section 121.1 Definitions, the additions of section 126.101 
General, section 126.102 Sampling and testing, section 126.103 
Recordkeeping and reporting and section 126.104 Labeling requirements 
to 25 PA Code Chapter 126 and the removal of section 126.1 Oxygenate 
content of gasoline from 25 PA Code Chapter 126.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipate no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the SIP revision if adverse comments are 
filed. This rule will be effective on February 15, 2000 without further 
notice unless EPA receives adverse comment by January 18, 2000. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under E.O. 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation. This final rule will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Thus, the requirements of section 6 
of the Executive Order do not apply to this rule.

C. Executive Order 13045

    E.O. 13045, entitled ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that the EPA determines (1) Is ``economically 
significant,'' as defined under E.O. 12866, and (2) The environmental 
health or safety risk addressed by the rule has 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 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This final rule is not subject 
to E.O. 13045 because it does not involve decisions intended to 
mitigate environmental health and safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects 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. If the mandate is unfunded, 
EPA must 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 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. This action does not involve or impose any requirements 
that affect Indian Tribes. 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,

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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).

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. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. The EPA believes that VCS are inapplicable to this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

I. 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 February 15, 2000. 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 approving Pennsylvania's oxygenated 
gasoline regulation 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.

    Dated: November 18, 1999.
A.R. Morris,
Acting Regional Administrator, Region III.
    40 CFR part 52 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 paragraphs (c)(142) to 
read as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (142) Revisions to the Pennsylvania Regulations for an oxygenated 
gasoline program submitted on September 13, 1995 by the Pennsylvania 
Department of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letter of September 13, 1995 from the Pennsylvania Department 
of Environmental Protection transmitting the oxygenated gasoline 
regulation as a SIP revision.
    (B) Revisions to 25 PA Code Chapter 121, General Provisions , 
section 121.1 Definitions, the additions of section 126.101 General, 
section 126.102 Sampling and testing, section 126.103 Recordkeeping and 
reporting and section 126.104 Labeling requirements to 25 PA Code 
Chapter 126 and the removal of section 126.1 Oxygenate content of 
gasoline from 25 PA Code Chapter 126. These revisions became effective 
August 19, 1995.
    (ii) Additional Material.--Remainder of September 13, 1995 
submittal.

[FR Doc. 99-32373 Filed 12-16-99; 8:45 am]
BILLING CODE 6560-50-P