[Federal Register Volume 66, Number 235 (Thursday, December 6, 2001)]
[Proposed Rules]
[Pages 63343-63348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30271]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[ME065-7014; A-1-FRL-7114-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maine; Control of Gasoline Volatility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Maine on June 7, 2000 and May 29, 
2001, establishing a lower Reid Vapor Pressure (RVP) fuel requirement 
for gasoline distributed in southern Maine which includes York, 
Cumberland, Sagadahoc, Kennebec, Androscoggin, Knox, and Lincoln 
Counties. Maine has developed these fuel requirements to reduce 
emissions of volatile organic compounds (VOC) in accordance with the 
requirements of the Clean Air Act (CAA). EPA is proposing to approve 
Maine's fuel requirements into the Maine SIP because EPA has found that 
the requirements are necessary for southern Maine to achieve the 
national ambient air quality standard (NAAQS) for ozone. The intended 
effect of this action is to propose approval of Maine's request to 
control the RVP of fuel in these seven southern counties. This action 
is being taken under section 110 of the Clean Air Act.

DATES: Written comments must be received on or before January 7, 2002.

ADDRESSES: Comments may be mailed to David Conroy, Unit Manager, Air 
Quality Planning, Office of Ecosystem Protection (mail code CAQ), U.S. 
Environmental Protection Agency, EPA-New England, One Congress Street, 
Suite 1100, Boston, MA 02114-2023. Copies of the State submittal and 
EPA's technical support document are available for public inspection 
during normal business hours, by appointment at the Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA-New England, One 
Congress Street, 11th floor, Boston, MA and the Bureau of Air Quality 
Control, Department of Environmental Protection, 71 Hospital Street, 
Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, (617) 918-1045.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?
B. What is Reid Vapor Pressure?
C. What are the relevant Clean Air Act requirements?
D. How has the State met the Test Under Section 211(c)(4)(C)?
E. What Comments were Previously Submitted on Maine's low-RVP Rule?
F. Why is EPA Taking this Action?

[[Page 63344]]

II. Proposed Action

III. What Are the Administrative Requirements?

I. Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?

    Under the Clean Air Act Amendments of 1990, southern Maine was 
divided into three separate ozone nonattainment areas: the Portland 
area which is comprised of York, Cumberland and Sagadahoc Counties; the 
Lewiston-Auburn area which is comprised of Androscoggin and Kennebec 
counties; and the Knox and Lincoln County area. Each of these areas was 
classified as moderate nonattainment for ozone. The ozone attainment 
deadline for these areas was initially November 15, 1996. Just downwind 
from these areas, the largely rural counties of Hancock and Waldo were 
designated nonattainment for ozone and classified as marginal.
    To bring these areas into attainment, the State has adopted and 
implemented a broad range of ozone control measures including stage II 
vapor recovery on larger gasoline retail facilities, numerous 
stationary and area source VOC controls, a vehicle inspection and 
maintenance (I/M) program, and the California low emission vehicle 
program. In addition, the State participated in the federal 
reformulated gasoline (RFG) program in the seven southern counties in 
Maine from January 1, 1995 until March 10, 1999, when the State's opt-
out of the federal RFG became effective. This strategy and other 
measures resulted in significant air quality improvements in southern 
Maine.
    EPA issued a direct final rule to approve a low RVP control program 
for the seven southern Maine counties on May 14, 1999 (64 FR 26306), 
but received adverse comment on that action. As a result, that direct 
final action was withdrawn on June 28, 1999 (64 FR 24557). Those 
comments are addressed in this notice for the purpose of developing 
this proposal.
    After EPA withdrew the 1998 direct final approval of the State's 
low-RVP program, Maine Department of Environmental Protection (DEP) 
amended its low RVP control program and revised its SIP submittal 
request. The amendments changed the RVP of a compliant fuel and became 
effective on June 1, 2000. The rule as amended requires that beginning 
May 1, 1999 through September 15, 1999, and each May 1 through 
September 15 thereafter, no gasoline may be sold with an RVP greater 
than 7.8 psi in the counties of York, Cumberland, Sagadahoc, Kennebec, 
Androscoggin, Knox, and Lincoln. The State's low-RVP rule is codified 
in Chapter 119 of the Maine Department of Environmental Protection's 
regulations, entitled ``Motor Vehicle Fuel Volatility Limit.''
    The DEP submitted this amended low-RVP rule to EPA as a revision to 
the SIP on June 7, 2000. On May 29, 2001, Maine submitted additional 
technical support for the SIP revision, including materials supporting 
the State's request to waive Clean Air Act preemption of state fuel 
controls pursuant to section 211(c)(4) of the Act and a description of 
its fuel enforcement strategy.
    By this low-RVP rule, Maine is ensuring that it replaces much of 
the VOC benefits that RFG had been required to achieve. These emission 
reductions were critical to Maine's attainment of the 1-hour ozone 
standard in several areas.

B. What Is Reid Vapor Pressure?

    Reid Vapor Pressure, or RVP, is a measure of a gasoline's 
volatility at a certain temperature and is a measurement of the rate at 
which gasoline evaporates and emits VOC; the lower the RVP, the lower 
the rate of evaporation. The RVP of gasoline can be lowered by reducing 
the amount of its more volatile components, such as butane. Lowering 
RVP in the summer months can offset the effect of summer temperature 
upon the volatility of gasoline, which, in turn, lowers emissions of 
VOC. Because VOC is a necessary component in the production of ground 
level ozone in hot summer months, reduction of RVP will help areas 
achieve the NAAQS for ozone and thereby produce benefits for human 
health and the environment.
    The primary emission reduction benefits from low-RVP gasoline used 
in motor vehicles comes from reductions in VOC evaporative emissions; 
exhaust emission reductions are much smaller. Because oxides of 
nitrogen ( NOX) are a product of combustion from motor 
vehicles, they will not be found in evaporative emissions, and low-RVP 
gasoline will have little or no effect on NOX.

C. What Are the Relevant Clean Air Act Requirements?

    In determining the approvability of a SIP revision, EPA must 
evaluate the proposed revision for consistency with the requirements of 
the CAA and EPA regulations, as found in section 110 and part D of the 
CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans).
    For SIP revisions approving certain state fuel measures, an 
additional statutory requirement applies. CAA section 211(c)(4)(A) 
prohibits state regulations respecting a fuel characteristic or 
component for which EPA has adopted a control or prohibition under 
section 211(c)(1), unless the state control is identical to the federal 
control. Section 211(c)(4)(C) provides an exception to this preemption 
if EPA approves the state requirements in a SIP. Section 211(c)(4)(C) 
states that the Administrator may approve an otherwise preempted state 
fuel standards in a SIP:

only if [s]he finds that the State control or prohibition is 
necessary to achieve the national primary or secondary ambient air 
quality standard which the plan implements. The Administrator may 
find that a State control or prohibition is necessary to achieve 
that standard if no other measures that would bring about timely 
attainment exist, or if other measures exist and are technically 
possible to implement, but are unreasonable or impracticable.

    EPA's August, 1997 ``Guidance on Use of Opt-in to RFG and Low RVP 
Requirements in Ozone SIPS'' gives further guidance on what EPA is 
likely to consider in making a finding of necessity. Specifically, the 
guidance recommends breaking down the necessity demonstration into four 
steps: identify the quantity of reductions needed to reach attainment; 
identify other possible control measures and the quantity of reductions 
each measure would achieve; explain in detail which of those identified 
control measures are considered unreasonable or impracticable; and show 
that even with the implementation of all reasonable and practicable 
measures, that the state would need additional emission reductions for 
timely attainment, and that the state fuel measure would supply some or 
all of such additional reductions.
    EPA has evaluated the submitted SIP revision and has determined 
that it is consistent with the requirements of the CAA, EPA 
regulations, and conforms to EPA's completeness criteria in 40 CFR part 
51, Appendix V. Further, EPA has looked at Maine's demonstration that 
the low-RVP fuel control is necessary in accordance with 211(c)(4)(C) 
and agrees with the State's conclusion that a fuel measure is needed to 
achieve the 1-hour ozone NAAQS.
    The SIP submittal contains: (1) Chapter 119, Maine Department of 
Environmental Protection regulations, as amended by the Maine Board of 
Environmental Protection and effective on June 1, 2000; (2) 
documentation of

[[Page 63345]]

the public notice dated December 4, 1999, and a transcript of the 
public hearing regarding the amendment of Chapter 119, dated January 6, 
2000; (3) evidence of State legal authority; and (4) application for 
waiver of federal preemption. Information regarding prohibitions on the 
sale of non-conforming gasoline, test procedures and sampling for the 
SIP revision can be found in Chapter 119 of the Maine Department of 
Environmental Protection regulations, and Maine statutes on enforcement 
and penalties can be found at Title 38 of Maine Revised Statutes 
Annotated (M.R.S.A.) sections 348 and 349. Based on this and a detailed 
enforcement strategy in the May 29, 2001 submittal, EPA has concluded 
that these provisions confer on the State the requisite authority to 
enforce compliance with the 7.8 psi RVP limit.

D. How Has the State Met the Test Under Section 211(c)(4)(C)?

    CAA section 211(c)(4)(A) preempts certain state fuel regulations by 
prohibiting a state from prescribing or attempting to enforce any 
control or prohibition respecting any characteristic or component of a 
fuel or fuel additive for the purposes of motor vehicle emission 
control if the Administrator has prescribed under section 211(c)(1) a 
control or prohibition applicable to such characteristic or component 
of the fuel or fuel additive, unless the state prohibition is identical 
to the prohibition or control prescribed by the Administrator.
    EPA has adopted Federal RVP controls under sections 211(c) and 
211(h). See 56 FR 64704 (Dec. 12, 1991). These regulations are found in 
40 CFR 80.27. Maine is required under the Federal rule to meet the 9.0 
psi RVP standard. See 40 CFR 80.27(a)(2).
    A state may prescribe and enforce an otherwise preempted low-RVP 
requirement only if the EPA approves the control into the state's SIP. 
In order to approve a preempted state fuel control into a SIP, EPA must 
find that the state control is necessary to achieve a NAAQS because no 
other reasonable or practicable measures exist to bring about timely 
attainment. Thus, to determine whether Maine's low-RVP rule is 
necessary to meet the ozone NAAQS, EPA must consider whether there are 
other reasonable and practicable measures available to produce the 
emission reductions needed to achieve the 1-hour ozone NAAQS.
    With the State's decision to opt-out of the federal RFG program, 
additional VOC reductions are necessary to ensure that the Portland 
area meets the 1-hour ozone standard. The Portland area has measured 
air quality in recent years fluctuating between meeting and exceeding 
the 1-hour standard. Maine has had exceedances of the 1-hour ozone 
standard in 1999 and 2001--two out of the three years since the State 
opted out of the federal RFG program. Given this situation, it is clear 
that the VOC reductions provided by participation of the seven counties 
of southern Maine in the federal RFG program are critical to the 
Portland area's achievement of the ozone NAAQS.
    For purposes of demonstrating necessity, EPA has used the phase 1 
RFG VOC reductions required in the SIP submitted by Maine on July 19, 
1995 for its 15 percent rate of progress plan as an estimate of the 
emission reductions that are necessary for southern Maine to achieve 
the ozone NAAQS. EPA believes this estimate of necessary reductions is 
conservative. In its 15-percent rate of progress plan for the Portland 
area, Maine had estimated that RFG would achieve 6.96 tons of VOC 
reduction per summer day. This figure was calculated using only vehicle 
miles traveled in the three-county Portland area. The sale of RFG in 
the surrounding four counties further benefitted the Portland area due 
to driving patterns into and around the Portland area and the 
geographic proximity of these surrounding four counties (Knox, Lincoln, 
Androscoggin, and Kennebec). These counties are downwind of the 
Portland area, and had previously participated in the RFG program. 
While these areas are no longer violating the one-hour ozone NAAQS, 
they did benefit from the fuel program's reductions. Further, persons 
traveling from these areas do travel into the Portland area, 
exacerbating the air quality problem in that area.
    With this estimate of the VOC reductions necessary to achieve the 
ozone NAAQS, the State evaluated an extensive list of non-fuel 
alternative controls to determine if reasonable and practicable 
controls could be implemented to provide sufficient VOC reductions in a 
timely manner. The State analyzed potential control measures by 
reviewing previously prepared emission inventories to determine if 
other non-fuel control measures could be adopted and used to replace 
the VOC reductions that RFG had achieved. The State reviewed all the 
source categories that comprised the emission inventory, and evaluated 
control measures on each source category. For a variety of reasons, 
most control measures were either already implemented, or were found to 
be unreasonable or impracticable for achieving reductions in a timely 
manner. (See May 29, 2001 submittal from the State of Maine.)
    As one example, the State evaluated the possibility of further 
controlling gasoline refueling, or stage II, emissions. The State does 
have a stage II vapor recovery program for larger facilities, but 
expanding the geographic coverage, and requiring smaller facilities 
(i.e., gas stations) to comply would yield among the most additional 
VOC reductions of any control strategy that the State reviewed. The 
State concluded that a legislative change, as well as a regulatory 
change, would be necessary to further control emissions from this 
source category. As a result, such controls could not be adopted and 
implemented as quickly as the low-RVP fuel control. Further, the actual 
installation of these controls would take additional time, which would 
not be reasonable or practicable because the State needed to replace 
the reductions as soon as possible. For these reasons, the State 
concluded that further stage II controls were not a practical measure 
for achieving VOC emission reductions. Other control measures were 
similarly evaluated, and determined to be either technically impossible 
or unreasonable and impracticable, or in a longer time frame when the 
State needed to secure the replacement emission reductions as soon as 
possible to achieve the NAAQS.
    The State's analysis identified several non-fuel alternative 
controls that could conceivably be implemented by the summer of 2001--
the earliest time frame for EPA approval of this low-RVP standard. (See 
May 29, 2001 State submittal) At best, adoption of all available 
measures would result in about 0.5 tons per day (tpd) of emission 
reductions--substantially less than the estimated reductions needed. 
Thus, even with implementation of all reasonable and practicable non-
fuel control measures, additional VOC reductions are necessary. It 
should be noted that this low-RVP rule has been in effect at the State 
level since 1999, and the State reports that fuel sold in this area has 
been complying with this RVP limit.
    Maine's low-RVP rule achieves approximately 4.5 tpd of VOC 
reductions beginning the summer of 1999 (based on vehicle miles 
traveled in the Portland area). Because low-RVP fuel sales in the four 
surrounding counties will reduce emissions in the Portland area when 
drivers from these areas travel into Portland, EPA believes RVP 
controls in these areas will further benefit the Portland area. EPA 
believes these emission reductions are necessary to achieve the 
applicable ozone NAAQS

[[Page 63346]]

in southern Maine. EPA is basing today's action on the information 
available to the Agency at this time, which indicates that adequate 
reasonable and practicable non-fuel measures are not available to the 
State that would achieve these needed emission reductions, and protect 
Maine's air quality in a timely manner. Hence, EPA is finding that the 
RVP standards are necessary for attainment of the applicable ozone 
NAAQS, and EPA is proposing to approve them as a revision to the Maine 
SIP.

E. What Comments Were Previously Submitted on Maine's low-RVP Rule?

    On May 14, 1999 (64 FR 26306, 64 FR 26352), EPA published a Direct 
Final Rulemaking (DFR) and parallel Notice of Proposed Rulemaking 
(NPRM) proposing approval of a SIP revision for Maine for a low-RVP 
fuel control program. The NPRM provided the public with the opportunity 
to comment. On June 11, 1999, the Oxygenated Fuels Association (OFA) 
provided comment on that rulemaking. In accordance with established 
Direct Final Rulemaking procedures, EPA withdrew the DFR and would have 
had to respond to OFA's comments before taking final action on the 
NPRM.
    After EPA withdrew the DFR, however, Maine DEP amended its low-RVP 
program and submitted a revised SIP revision, which is the basis for 
today's new proposed rulemaking. While EPA is not taking final action 
on the 1999 NPRM on which OFA commented, EPA has nevertheless 
considered the comments raised by OFA in developing this new proposal 
and has decided to address those points in developing today's proposal. 
Because EPA's prior withdrawn action is distinct from the action 
proposed today, parties seeking to participate in this rulemaking for 
comment and judicial review purposes should submit comments during the 
comment period on this action.
    Comment 1. OFA commented that the State of Maine can not adopt a 
fuel strategy under section 211(c) because it is not necessary for 
attainment. Under the Clean Air Act (CAA), EPA can only waive the 
federal preemption of state fuel programs when the state fuel program 
is necessary for attainment. The State had already achieved attainment 
of the 1-hour ozone standard using RFG, and chose to no longer 
participate in the RFG program. OFA argues the State cannot adopt a new 
fuel control measure and justify it as necessary for attainment when it 
is choosing to no longer implement a control measure that helped 
achieve attainment. OFA also takes issue with the fact that RFG 
actually sold in Maine achieved more reductions than it was required 
to, and that we were only requiring Maine to replace the reductions 
that RFG was required to achieve.
    Response 1. The commenter is correct in that EPA believes that RFG 
contributed to cleaner air in Maine. Maine, however, has decided that 
RFG is no longer a desirable fuel control for the State and has adopted 
the low-RVP control measure to replace at least some of the emission 
reductions provided by RFG. Maine chose to implement RFG, and Federal 
regulations allowed the State to choose to no longer implement RFG 
subject to the constraints in the RFG opt-out rule. With RFG no longer 
viewed as a viable option in the State, due to concerns about MTBE 
contaminating groundwater, Maine moved forward to replace the fuel 
measure by achieving the emission reductions it had planned for in its 
SIP.
    It is important to note, however, that EPA required the State to 
take several steps before allowing the State to ``opt-out'' of the RFG 
program. Consistent with the RFG opt-out procedures (40 CFR 80.72), the 
State identified an alternative control measure to make up for planned 
emission reductions lost from opting-out of RFG, and provided adequate 
lead time to industry to notify that the State was opting-out of the 
program. Nevertheless, Maine made a decision fully allowed under the 
RFG program, and followed the criteria outlined in the rule. The State 
had relied upon RFG in the Portland area in the plan submitted under 
section 182(b)(1) of the CAA (i.e., the 15 percent plan). As required 
by the RFG opt-out rule (40 CFR 80.72(b)(3)), Maine identified the 
measures with which it intended to replace RFG. Based on that, EPA 
allowed the RFG opt-out to proceed.
    As OFA pointed out, current data suggests that RFG has achieved 
more clean air benefits than required under the Clean Air Act and the 
RFG rules. As the commenter correctly pointed out, RFG achieved 
emission reductions of VOC, air toxics and NOX well in 
excess of that required by law. However, the RFG opt-out rule only 
requires that States move to replace emission reductions that were 
planned for. In light of the fact that RFG did in fact achieve more 
emission reductions than required, EPA intends to continue to work with 
Maine to ensure that Maine's actual air quality is not degraded by the 
State's choice to opt-out of the RFG program.
    The relevant the issue for today's action, however, is whether or 
not Maine, in fact, needed emission reductions from RFG to attain the 
1-hour ozone standard. The fact that RFG was cleaner than required 
would seem to argue even more strongly that the emission reductions 
from RFG were necessary to achieve attainment. In fact, as pointed out 
in the May 14, 1999 Federal Register (64 FR 26308), Maine achieved the 
1-hour standard by the slimmest of margins. Since then, Maine has 
fluctuated between meeting and violating the 1-hour ozone standard. Not 
sustaining those emission reductions will jeopardize Maine's attainment 
of the 1-hour standard.
    Comment 2. OFA commented that this 211(c) waiver was not necessary 
to meet the 1-hour ozone standard, since EPA had proposed in December, 
1998 that the 1-hour standard was achieved in the Portland area, and 
had previously found that the 1-hour standard had been met in all other 
parts of the State. OFA further contends that, based on DC court ruling 
(ATA vs. EPA--May 14, 1999), that EPA could not justify the need for 
fuel controls based on the fact that Maine's air quality was violating 
the new 8-hour ozone NAAQS.
    Response 2. On June 9, 1999, EPA determined that the Portland, 
Maine area had attained the 1-hour ozone standard (64 FR 30911), and 
revoked the one-hour standard. This determination was based on data 
collected from 1996-1998. For the time period 1997-1999, however, Maine 
again violated the one-hour ozone standard. On July 20, 2000 (65 FR 
45182), due to uncertainty regarding the implementation of the 8-hour 
ozone standard, EPA determined that the one-hour standard should apply 
again in all areas where it was previously revoked, such as Maine. 
Subsequently, based on data collected in 1998-2000 and 1999-2001, Maine 
is again measuring air quality which meets the one-hour ozone standard.
    Because Maine achieved the 1-hour ozone standards by only the 
slimmest of margins with reductions achieved though fuel controls, and 
because Maine continues to monitor exceedances that could be even worse 
without the current RVP controls, EPA concludes that the VOC reductions 
provided by the State fuel controls are necessary to achieve the 1-hour 
ozone NAAQS. In today's action, we are proposing to approve the State's 
7.8 psi RVP fuel control program into the SIP to replace much of the 
emission reductions that RFG was designed to achieve. Failure to do so 
would jeopardize Maine's ability to achieve the 1-hour standard. EPA is 
not relying upon a finding that the State's

[[Page 63347]]

fuel control is necessary under section 211(c)(4)(C) to achieve the 8-
hour ozone NAAQS.
    Comment 3. OFA contends that Maine (or EPA) did not identify the 
level of reductions necessary to achieve attainment of the ozone 
standard in Maine.
    Response 3. EPA, and Maine, identified a conservative amount of 
reductions that were necessary for Maine to achieve the 1-hour ozone 
standard. Maine had previously established that, as part of the 15 
percent rate of progress plan for the Portland area, RFG had been 
expected to achieve 6.96 tons of VOC reductions per summer day. As 
pointed out in our earlier rulemaking (64 FR 26308), EPA had also 
determined that, with the strategies that Maine had implemented, the 1-
hour ozone standard had been achieved by the slimmest of margins. In 
short, the Portland area needed all of the reductions that had been 
achieved to secure attainment. As discussed in the previous response, 
this is further evidenced by the fact that Maine subsequently violated 
the 1-hour standard after opt-out. Even this past summer, 2001, Maine 
has recorded 1-hour exceedances. As such, in order to preserve clean 
air, Maine would need to replace emission reductions from any program 
implemented and relied upon in the 15 percent rate of progress plan. As 
stated earlier, because RFG is no longer being implemented, those 
reductions must be replaced.
    OFA made the additional point that the emission reductions from RFG 
were underestimated for two reasons, and that more than 6.96 tons of 
VOC reductions per summer day would need to be replaced for the 
Portland area. First, OFA pointed out that the 6.96 tpd estimate 
represents only the emission reductions required to be achieved in the 
Portland area (York, Cumberland, and Sagadahoc Counties) from RFG, and 
that RFG was also sold in four other counties (Androscoggin, Kennebec, 
Knox and Lincoln counties). Second, OFA explained that RFG in practice 
actually achieved more emission reductions than required, and that this 
should be the clean air target.
    EPA agrees with OFA that RFG likely provided more than 6.96 tpd of 
VOC reductions for the Portland area. As explained above, this further 
stresses the importance and necessity of Maine replacing this control 
measure even if the State's 7.8 psi RVP fuel control program does not 
require the same level of reductions that RFG achieved in practice. 
Nevertheless, EPA intends to continue to work with Maine to ensure that 
all of the actual emissions reductions achieved by RFG will be replaced 
to ensure sustained clean air for Maine's citizens.
    Comment 4. OFA argues that this low-RVP fuel control strategy was 
not the only available control measure to bring about timely 
attainment. OFA contends that RFG was available, and in fact brought 
about attainment in Maine and that RFG should have been among the 
measures that EPA evaluated as a measure which could bring about 
attainment, since it was technically possible to implement, and was 
reasonable and practicable. OFA also took issue with Maine's argument 
that other non-fuel measures were not available to achieve the level of 
reductions necessary because of the lead time needed to implement those 
additional programs (such as further Stage 2 vapor recovery). OFA 
argued that Maine had known since at least 1997 that the State was 
considering opting-out of the RFG program, and that proper planning 
would have allowed the State to achieve any requisite emission 
reductions with other non-fuel control measures.
    Response 4. We address this comment in two parts. First is to 
discuss EPA policy requiring that a State's section 211(c) analysis 
look at only non-fuel measures to secure the emission reductions 
necessary for attainment, prior to being allowed to adopt or enforce 
otherwise preempted fuel controls. The second point will discuss, in 
this instance, whether or not sufficient non-fuel control measures 
exist which could eliminate the need for the low-RVP fuel control 
pursuant to section 211(c)(4)(C).
    On the first point, section 211(c)(4)(C) provides that EPA can 
approve an otherwise preempted state fuel control only if there are no 
other reasonable or practicable measures available to achieve the 
NAAQS. EPA interprets the reference to other measures that must be 
evaluated as generally not encompassing other fuels measures. The 
Agency believes that the Act does not call for a comparison between 
state fuels measures to determine which measures are unreasonable or 
impracticable, but rather section 211(c)(4) is intended to ensure that 
a state resorts to a fuel measure only if there are no available 
practicable and reasonable non-fuels measures. This interpretation 
minimizes the burden on the oil industry of different state fuel 
measures where non-fuel measures are available, and thereby satisfies 
one of the underlying purposes of section 211(c)(4). But where the 
state must turn to a fuel measure, it gives the state flexibility to 
choose whatever particular fuel measure best suits its needs. Under 
this interpretation, EPA retains the ability not to approve a state 
fuel measure that is grossly over-burdensome, however, because the 
state must show that whatever fuel measure it selects is necessary to 
achieve needed emissions reductions. Thus, in demonstrating that 
measures other than requiring 7.8 psi RVP gasoline are unreasonable or 
impracticable, Maine need not address the reasonableness or 
practicability of other possible state fuel measures, such as RFG. EPA 
expects that once States determine that fuel controls are necessary, 
they will work judiciously with suppliers to find a fuel which balances 
the environmental need, against the cost to industry and consumers. EPA 
has articulated this principal in earlier rulemaking actions in St. 
Louis on July 2, 1997 (62 FR 35756), Phoenix on February 10, 1998 (63 
FR 6653), and Pittsburg on June 8, 1998 (63 FR 31116).
    With respect to OFA's claim that measures would have been available 
had Maine properly planned for the possibility that RFG opt-out could 
be occurring, we believe the history is not so plain. Maine clearly had 
wrestled with RFG through several legislative sessions. However, each 
year, the State maintained its commitment to the RFG program. It would 
have been unreasonable to expect the State to adopt control measures 
based on the possibility of one day opting-out of the RFG program. It 
would be even more extreme to suggest that Maine should attempt to 
secure legislative authority to adopt additional controls measures 
before a decision was made to opt-out of RFG.
    On October 13, 1998, Maine made the formal decision that it no 
longer felt it could continue to participate in the RFG program. From 
that point forward, though it was clear that the State preferred to 
adopt a fuel control measure, it had also looked at an extensive list 
of non-fuel measures, relying in large part upon the State's detailed 
analysis prepared in the Spring of 1996 in support of its 15 percent 
rate of progress plan. Part of the reason the State stayed in the RFG 
program at that time was that no other reasonable alternatives existed. 
When Maine reanalyzed the availability of further control measures 
under this 211(c)(4) waiver request, the State again found that no 
additional non-fuel measures were available that could provide emission 
reductions in sufficient quantity in an expeditious fashion. EPA has 
reached that same conclusion in our independent analysis of the 
situation (see EPA's Technical Support Document). It would not be 
reasonable

[[Page 63348]]

to expect Maine (or any area) to be adopting control measures to 
replace the reductions from RFG at the same time the State was 
defending the program. Instead, we reviewed the availability of control 
measures to secure the needed reductions today.
    Comment 5. Maine did not demonstrate that low RVP gasoline 
standards are necessary to attain a national ambient air quality 
standard (NAAQS), and maintenance is not a statutory basis for a 
waiver.
    Response 5. EPA believes, as discussed elsewhere in this notice, 
that the emission reductions from a fuels control program (i.e., RFG, 
or this low RVP fuel) are necessary for Maine to achieve the 1-hour 
ozone NAAQS. As stated in response 3, Maine has had recent exceedances 
of the 1-hour ozone NAAQS, and they clearly need all of the emission 
reductions they have achieved through this control program. The 
Portland area remains designated nonattainment for ozone, and these 
emission reductions are necessary.

F. Why Is EPA Taking This Action?

    EPA is proposing to approve a SIP revision at the request of the 
Maine DEP. This rule has been adopted at the State level since the 
summer of 1999. However, to ensure that it secures the needed approval 
under section 211(c)(4)(C) of the Clean Air Act, Maine submitted this 
action for EPA approval, to make it part of the SIP.

II. Proposed Action

    EPA is proposing to approve a SIP revision submitted by the State 
of Maine on June 7, 2000 and May 29, 2001, establishing a 7.8 psi RVP 
fuel requirement for gasoline distributed in southern Maine which 
includes York, Cumberland, Sagadahoc, Kennebec, Androscoggin, Knox, and 
Lincoln Counties. This revision will propose to approve into the SIP 
Maine DEP's Chapter 119, entitled ``Motor Vehicle Fuel Volatility 
Limit'' as amended on June 1, 2000. Maine has developed these fuel 
requirements to reduce emissions of volatile organic compounds (VOC) in 
accordance with the requirements of the Clean Air Act (CAA). EPA is 
proposing to approve Maine's fuel requirements into the SIP because EPA 
has found that the requirements are necessary for southern Maine to 
achieve the national ambient air quality standard for ozone.

III. What Are the 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely proposes to approve a 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 would approve 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.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

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

    Dated: November 26, 2001.
Robert W. Varney,
Regional Administrator, EPA--New England.
[FR Doc. 01-30271 Filed 12-5-01; 8:45 am]
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