[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 bunker.kelly@epa.gov.
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
