[Federal Register Volume 66, Number 81 (Thursday, April 26, 2001)]
[Rules and Regulations]
[Pages 20927-20931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10251]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-114-2-7494; FRL-6969-4]


Approval and Promulgation of Air Quality State Implementation 
Plans (SIP); Texas: Control of Gasoline Volatility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of Texas establishing a low-Reid Vapor 
Pressure (RVP) fuel requirement for gasoline distributed in 95 counties 
in the eastern and central parts of Texas. Texas developed this fuel 
requirement to reduce emissions of volatile organic compounds (VOCs) as 
part of the State's strategy to achieve the National Ambient Air 
Quality Standard (NAAQS) for ozone in the Houston-Galveston and Dallas-
Fort Worth nonattainment areas. We are approving Texas' fuel 
requirement into the SIP because we found that the fuel requirement is 
in accordance with the requirements of the Clean Air Act (the Act) as 
amended in 1990 and is necessary for these

[[Page 20928]]

nonattainment areas to achieve the ozone NAAQS.

DATES: This final rule is effective on May 29, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. Persons interested in examining these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day.
    Environmental Protection Agency, Region 6, Air Planning Section 
(6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
    Texas Natural Resource Conservation Commission, 12100 Park 35 
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Rennie, Air Planning 
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733, telephone (214) 665-7367.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

What Action Is EPA Taking Today?

    We are granting final approval of Texas' low RVP fuel requirement 
for gasoline distributed in 95 counties in the eastern and central 
parts of Texas. The State's low-RVP program will only apply in the 
attainment counties listed in this action and will not apply in the 
designated nonattainment counties in the Houston-Galveston (HGA), 
Dallas-Fort Worth (DFW), or Beaumont-Port Arthur (BPA) ozone 
nonattainment areas because these areas are already subject to Federal 
fuel controls that are at least as stringent.

What Are the Clean Air Act Requirements?

    Section 172 of the Act provides the general requirements for 
nonattainment plans. Section 172(c)(6) and section 110 require SIPs to 
include enforceable emission limitations, and such other control 
measures, means or techniques as well as schedules and timetables for 
compliance, as may be necessary to provide for attainment by the 
applicable attainment date. Today's SIP revision involves approval of 
one of a collection of controls adopted by the State to achieve the 
ozone standard in the DFW and HGA nonattainment areas as required under 
section 172. EPA approval of this SIP revision is governed by section 
110 of the Act.
    In addition to these general requirements, section 211(c)(4)(C) 
provides that a state fuel control, otherwise preempted under section 
211(c)(4)(A), may only be approved into a SIP if EPA finds the fuel 
control is ``necessary'' to achieve a NAAQS. Today's approval of the 
State's fuel control also meets the requirements of section 
211(c)(4)(C) because we have found that the control is ``necessary'' to 
achieve the NAAQS in the DFW and HGA ozone nonattainment areas.

Why Is EPA Taking This Action?

    We are taking this action because the State submitted an adequate 
demonstration to show the necessity for this fuel requirement to 
achieve the NAAQS in the DFW and HGA ozone nonattainment areas.

What Does the State's Low-RVP Regulation Include?

    The State's low-RVP regulation requires that gasoline sold within 
the 95 attainment counties listed in the regulations have a maximum RVP 
of 7.8 psi. The regulations apply to gasoline sold at gasoline 
dispensing facilities between June 1 and October 1 of each year, and 
between May 1 and October 1 of each year for bulk plants, gasoline 
terminals and gasoline storage vessels.
    The 95 central and eastern Texas counties affected by these rules 
are Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, 
Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, 
Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Ellis, 
Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, 
Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, 
Hopkins, Houston, Hunt, Jackson, Jasper, Johnson, Karnes, Kaufman, 
Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, 
Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, 
Nueces, Panola, Parker, Polk, Rains, Red River, Refugio, Robertson, 
Rockwall, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, 
Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van 
Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, 
and Wood Counties.

What Did the State Submit?

    The State submitted SIP revisions for 30 Texas Administrative Code 
(TAC) 114 on August 16, 1999, and April 25, 2000, as well as technical 
supplements dated October 13, 1999, and February 11, 2000. The 
submittals contained data and analyses to support a finding under 
section 211(c)(4)(C) that the State's low-RVP requirement is necessary 
for the DFW and HGA nonattainment areas to achieve the ozone NAAQS. For 
further discussion of the submittal, see the proposed approval, 65 FR 
69720 (November 20, 2000) and accompanying Technical Support Document.

What Comments Did EPA Receive in Response to the November 20, 2000, 
Proposed Rule?

    EPA received comments on the Notice of Proposed Rulemaking (NPR) 
from the Texas Oil and Gas Association (TxOGA) and Southwest Research 
Institute. A summary of the comments received and EPA's response is 
presented below.

A. State Regulation of Fuels Outside Nonattainment Areas

    Comment: TXOGA supports the use of cleaner burning fuel, but 
opposes the regional regulation of gasoline in areas outside of 
designated nonattainment areas because they do not believe that 
regulation of gasoline in attainment areas has been demonstrated to be 
necessary for NAAQS attainment in the HGA or DFW areas.
    Response: We believe it is reasonable to justify fuel controls in 
attainment areas as ``necessary to achieve the NAAQS'' where, as here, 
it is demonstrated that emissions reductions associated with fuel use 
in the surrounding attainment areas benefit the nonattainment areas of 
concern and there are no reasonable or practicable non-fuel 
alternatives that would bring about timely attainment. Regional 
approaches to reducing pollution are acceptable to EPA because air 
pollution does not recognize political or geographic boundaries.
    In our Technical Support Document (TSD) accompanying the proposed 
approval, we explained the way in which the low-RVP program will help 
the nonattainment areas achieve the NAAQS (more detailed discussions of 
how the regional fuel benefits the nonattainment areas are provided in 
the responses to comments below). Second, we reviewed the 
reasonableness and practicability of non-fuel control alternatives. 
Finally, we showed that with implementation of all reasonable and 
practicable control measures including the regional fuel control, the 
HGA and DFW nonattainment areas will be able to attain the ozone NAAQS 
but with no margin for error.

B. Transport of Emissions and Emissions From Commuting Vehicles

    Comment: TXOGA points out that controls in areas downwind of the 
nonattainment areas do not benefit DFW or HGA. TXOGA also notes a 
recent modeling study showed Corpus Christi does not affect HGA and 
asserts that

[[Page 20929]]

other areas in North Texas claim similar lack of influence on the DFW 
area.
    Response: The TSD presents specific modeling data identifying those 
counties from which NOX and ozone are transported to the DFW 
and/or HGA nonattainment areas. TXOGA does not dispute these modeling 
results or provide reason not to rely on this data. The models show 
that at least 82 of the 95 counties subject to the regional low-RVP 
control have some meteorological connection with the DFW and HGA 
nonattainment areas such that it is reasonable to conclude that 
emissions reduction in these counties will benefit the DFW and HGA 
areas. TxOGA's specific examples do not undermine our overall 
conclusion that many areas transport ozone and/or VOCs and that 
reduction of emissions in these areas will benefit nonattainment areas.
    Comment: TXOGA argues that the evaporative benefits from 
controlling RVP used in newer vehicles are small because new vehicle 
standards already result in evaporative emissions controls. In 
addition, TXOGA argues that the benefit attributed to vehicles fueling-
up in the attainment areas and commuting into the nonattainment areas 
is small because the large geographic area has little commuting and 
people more often purchase gas in cities and go to surrounding areas 
than vice-versa.
    Response: TXOGA's claims that the benefits associated with 
commuting vehicles are small, are unsupported, and do not undermine the 
overall conclusion that controls in these surrounding areas are 
reasonably related to attainment in the DFW and HGA areas. It should be 
noted, at the outset, that TXOGA does not question the modeled benefits 
of the low-RVP program. Its claims regarding the benefits associated 
with commuting vehicles therefore are taken only as a challenge to 
EPA's justification for approving of the fuel control in surrounding 
attainment areas.
    The State provided data on commuting for counties surrounding DFW 
and HGA areas. This showed where potential impacts from commuting are 
most significant. For example, in the DFW area, 17 of the 22 attainment 
counties immediately surrounding the nonattainment counties have 10 
percent or more of their county work trips being made into the 
nonattainment counties. These numbers support EPA's conclusion that 
controlling the fuel in these areas will benefit the DFW and HGA 
nonattainment areas.
    TXOGA has provided no basis to support its assertion that commuting 
vehicles are more likely to refuel in the cities than in the areas in 
which the commuters live. It is equally as reasonable to expect that, 
given price and convenience factors, commuters are at least as likely 
to refuel in the surrounding attainment areas as they are in the 
nonattainment areas.
    In addition, we note that even though the benefits of a low-RVP 
fuel are not as significant in newer vehicles, there is still a benefit 
from controlling RVP across the fleet as a whole. EPA's estimates of 
nationwide vehicle fleet age distribution indicate that more than half 
of the existing light duty vehicle fleet is eight years or older. 
Additionally, these estimates show that the light duty fleet includes a 
significant percentage of trucks (about 40%) which are currently 
subject to less stringent emission standards than passenger cars. 
Therefore, it is still reasonable to conclude that the low-RVP control 
will benefit the nonattainment areas, not only through transport of 
emissions but also through reduction in direct emissions.

C. Distribution

    Comment: TXOGA argues that approval of the regional fuel program 
cannot be justified based on distribution issues because distribution 
within the geographic area has nothing to do with air quality. TXOGA 
supports as broad a fuel program as possible including a national 
program but argues that even with the regional plan there will be a 
patchwork because pipelines supply both sides of the program boundary.
    Response: We looked at distribution to support the conclusion that 
the scope of the program is reasonable even though not all of the 95 
counties covered by the rule contribute to air quality in DFW and HGA. 
The analysis shows that at least 82 of these 95 counties contribute 
emissions to the DFW and/or HGA nonattainment areas through either 
meteorologic transport or via commuting vehicles, or both. Fuel 
controls are therefore justified in these counties. We concluded that 
extending the low-RVP program to the remaining 13 counties was 
reasonable to simplify distribution and compliance. EPA has used 
similar considerations in approving other regional fuel controls. See 
54 FR 26030 (June 21, 1989) (approving low-RVP program in New York); 55 
FR 20601 (May 18, 1990) (approving low-RVP program in Maine). We 
believe that the broader program is more reasonable than limiting the 
scope of the program to only those areas demonstrated to impact DFW and 
HGA air quality, which would result in a county-by-county patchwork.

D. Necessity

    Comment: TxOGA also challenges EPA's analysis of the availability 
of non-fuel alternatives. TxOGA argues that because the emission 
reduction benefit was not quantified in terms of actual VOC reductions, 
EPA cannot support the conclusion that the Regional Low-RVP fuel 
program is the most reasonable and practicable measure to reduce 
background ozone levels and curtail transport of ozone and precursors 
in the nonattainment areas. They argue that without quantifying the VOC 
reductions attributable to the use of low-RVP fuel in each county, it 
is not possible to determine the cost-effectiveness of the rule in each 
attainment county and impossible to determine if more reasonable and 
practicable measures are available.
    Response: Texas considered over 300 measures within the 
nonattainment areas and submitted a long list of non-fuel measures that 
it considered for implementation outside the nonattainment areas. All 
reasonable and practicable measures have been adopted and the reasons 
for rejecting the others have been provided. TxOGA has not pointed to 
any particular alternative control measure that EPA or the State 
improperly rejected as unreasonable or impracticable. Instead, TXOGA 
argues generally that the analysis of alternatives was incomplete. We 
believe the analysis of alternatives was thorough and appropriate even 
without strict comparison of cost-effectiveness.
    We disagree that a reasonable analysis of alternatives must be 
based on a county-by-county comparison of the cost-effectiveness of the 
fuel program and the cost-effectiveness of other controls. First, the 
county-by-county approach TXOGA suggests is itself unreasonable to the 
extent it implies that the State must mix and match regulations at the 
county level to ensure that the most cost-effective controls are used 
in each county. Such a regulatory approach could not realistically be 
implemented and has never been required.
    Second, we disagree with TXOGA's claim that non-fuel alternatives 
can only be rejected based on a comparison to the cost-effectiveness of 
the fuel measure. EPA's 1997 Guidance (Guidance on Use of Opt-in to RFG 
and Low RVP Requirements in Ozone SIPs, August, 1997, U.S. 
Environmental Protection Agency, Office of Mobile Sources) describes 
the factors generally to be considered in evaluating the reasonableness 
and practicability of non-fuel alternatives under section 211(c)(4)(C). 
These factors include, but

[[Page 20930]]

are not limited to, the following: length of time to implement the 
measure; length of time to achieve ozone reduction benefits; degree of 
disruption entailed by implementation; other implementation concerns 
such as supply issues; costs to industry, consumers and/or the state; 
cost effectiveness; or reliance on commercially unavailable technology. 
Some factors may be appropriate for some areas but not for others. 
Cost-effectiveness is not the only factor to be considered in making 
the determination for reasonableness and practicability. Given the 
deadlines imposed by the Act and consequences for failure to attain, 
length of time to achieve ozone reduction benefits and supply issues 
were also critical factors for today's action.
    Even though some point source control programs can be cost-
effective, a regional fuel program can be implemented on a faster 
timetable and impacts a much larger geographic area. Those additional 
factors make the Regional Fuel program more reasonable and practicable 
than point and area source controls of similar cost and benefit.
    We continue to believe there are no reasonable or practicable 
alternative control measures that would bring about timely attainment.

E. Methyl Tertiary Butyl Ether (MTBE)

    Comment: TXOGA asks EPA to clarify whether the proposed SIP and 
section 211(c)(4)(C) waiver address the portion of the Texas RVP rule 
that restricts the use of MTBE to levels used in conventional gasoline 
prior to the implementation of this requirement.
    Response: EPA did not make a determination under section 
211(c)(4)(C) on the MTBE provision of the Texas rule because the State 
did not submit that portion of the rule for SIP approval. Therefore, we 
are not acting on the MTBE provisions.

F. Exemptions

    Comment: Southwest Research Institute (SwRI) commented that the 
fuel rule would not allow them to conduct research during the summer 
ozone season because there were no exemptions provided for research and 
development operations to utilize test fuels that do not meet the 7.8 
RVP requirement.
    Response: EPA agrees with the commenter that the Texas rule 
contains no exemptions for research facilities. While we understand 
that this was an oversight, this is not cause for disapproval. It is 
our understanding that Texas has committed to revising 30 Texas 
Administrative Code (TAC) 114 at the earliest opportunity to provide an 
exemption for research and development operations from the 7.8 RVP 
requirement. We will review such a regulatory change to determine the 
impact upon the attainment demonstration when Texas submits the measure 
as a formal SIP revision.

EPA's Rulemaking Action

    We are granting final approval pursuant to sections 110 and 
211(c)(4)(C) because we find that the State has (1) identified the 
reduction in modeled peak values needed to achieve attainment of the 
ozone NAAQS; (2) identified all other reasonable and practical control 
measures; (3) shown that even with the implementation of all reasonable 
and practicable control measures, the State would need additional 
emissions reductions for these nonattainment areas to meet the ozone 
NAAQS (124 ppb) on a timely basis; and (4) demonstrated that the low-
RVP requirement would contribute to those additional reductions.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 29, 2001.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of

[[Page 20931]]

this action must be filed in the United States Court of Appeals for the 
appropriate circuit by June 25, 2001. 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, 
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: April 9, 2001.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

    2. In Sec. 52.2270(c) the table is amended by revising the entry 
for ``Section 114.1'' and adding to the end of the section ``Chapter 
114 (Reg 4)--Control of Air Pollution From Motor Vehicles'' a new 
heading with entries for ``Subchapter H--Low Emission Fuels'' to read 
as follows:


Sec. 52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
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                                                     State approval/
        State citation             Title/subject     submittal date       EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
                        Chapter 114 (Reg 4)--Control of Air Pollution From Motor Vehicles
----------------------------------------------------------------------------------------------------------------
Subchapter A--Definitions:
    Section 114.1............  Definitions.........        08/16/99  4/26/01 [and Federal        New definitions
                                                                      Register citation].         added.
 
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                                                        *
Subchapter H--Low Emission
 Fuels; Division I: Gasoline
 Volatility:
    Section 114.301..........  Control Requirements        04/25/00  4/26/01 [and Federal        Part (c) is not
                                for Reid Vapor                        Register citation].         approved.
                                Pressure.
    Section 114.304..........  Registration of             04/25/00  4/26/01 [and Federal        ...............
                                Gasoline Producers                    Register citation].
                                and Importers.
    Section 114.305..........  Approved Test               04/25/00  4/26/01 [and Federal        ...............
                                Methods.                              Register citation].
    Section 114.306..........  Recordkeeping,              04/25/00  4/26/01 [and Federal        ...............
                                Reporting, and                        Register citation].
                                Certification
                                Requirements.
    Section 114.307..........  Exemptions..........        04/25/00  4/26/01 [and Federal        ...............
                                                                      Register citation].
    Section 114.309..........  Affected Counties...        04/25/00  4/26/01 [and Federal        ...............
                                                                      Register citation].
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 01-10251 Filed 4-25-01; 8:45 am]
BILLING CODE 6560-50-U