[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4895-4897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2826]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN58-1-7216a; FRL-5342-9]
Approval and Promulgation of Implementation Plans; Revision to
the Indiana State Implementation Plan for Ozone
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: The USEPA approves the State Implementation Plan (SIP)
revision request submitted by the State of Indiana on August 25, 1995,
establishing a summertime gasoline Reid Vapor Pressure (RVP) limit of
7.8 pounds per square inch (psi) for gasoline distributed in Clark and
Floyd Counties, as part of the State's plan to attain 15 percent (%)
Reasonable Further Progress (RFP) reductions of Volatile Organic
Compounds (VOC) emissions in these two Counties by 1996. Emissions of
VOC react with other pollutants, such as oxides of nitrogen, on hot
summer days to form ground-level ozone, commonly known as smog. Ozone
pollution is of particular concern because of its harmful effects upon
lung tissue and breathing passages. RFP plans are intended to bring
areas which have been exceeding the public health-based Federal ozone
air quality standard closer toward the goal of attaining and
maintaining this standard. Indiana expects that the summertime RVP
gasoline limit will reduce VOC emissions by 2.29 tons per day in the
Clark and Floyd Counties ozone nonattainment area. A final approval
action is being taken because the submittal meets all pertinent Federal
requirements.
DATES: The ``direct final'' is effective on April 9, 1996, unless USEPA
receives adverse or critical comments by March 11, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the revision request is available for inspection
at the following address: U.S. Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604. (It is recommended that you telephone Mark J. Palermo
at (312) 886-6082 before visiting the Region 5 Office.)
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo at (312) 886-6082.
SUPPLEMENTARY INFORMATION:
I. Background
RVP is a measure of a fuel's volatility and thereby affects 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 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 assist the State of Indiana to attain the National Ambient Air
Quality Standard (NAAQS) for ozone, which all States must promulgate
SIPs to achieve under section 110(a) of the Act.
The USEPA first proposed to regulate gasoline RVP in 1987 (52 FR
31274). USEPA's gasoline RVP proposal resulted in a two-phased final
regulation which was incorporated into the 1990 Amendments to the Clean
Air Act (Act) in section 211(h). Phase I of the regulation took effect
in 1990 (54 FR 11868) for the years 1990 and 1991. Phase II of the
regulation became effective in 1992 (55 FR 23658). The rule divides the
continental United States into two control regions, Class B and Class
C. Generally speaking, the Class B states are the warmer southern and
western states, and Class C states are the cooler northern states. The
Phase II regulation limits the volatility of gasoline sold during the
high ozone season to 9.0 psi RVP for Class C areas and 7.8 psi RVP for
Class B ozone nonattainment areas. Indiana is a Class C State, and
therefore, required under the Federal rule to meet the 9.0 psi RVP
standard.
State governments are generally preempted under section
211(c)(4)(A) of the Act from requiring any or all areas in a state to
meet a more stringent volatility standard.1 However, a state can
require a more stringent standard in its SIP if the state can show
under section 211(c)(4)(C) that the more stringent standard is
necessary to achieve the National Ambient Air Quality Standard (NAAQS)
for ozone in a particular nonattainment area. The state can make this
showing by providing evidence that no other measures exist that would
bring about timely attainment, or that such measures exist and are
technically possible to implement, but are unreasonable or impractical.
If a state makes this showing, it can lower the RVP of gasoline to
whatever level has been shown to be necessary in the nonattainment
area(s).
\1\ USEPA's federal standards were promulgated under both
section 211(c) and section 211(h). States are generally preempted
under section 211(c)(4)(A) from requiring fuel standards promulgated
under section 211(c).
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II. State Submittal
Section 182 of the Act requires all moderate, serious, severe, and
extreme ozone nonattainment areas to submit an RFP plan to achieve a
15% reduction of 1990 emissions of VOC by 1996. In Indiana, Clark and
Floyd Counties are classified as moderate nonattainment for ozone, and
as such, subject to the 15% RFP requirement. See 40 CFR 81.315.
The Indiana Department of Environmental Management (IDEM) developed
and submitted a plan to USEPA on July 12, 1995, outlining the VOC
emission control measures which will be implemented in order to satisfy
the 15% RFP requirement for Clark and Floyd Counties. USEPA is
currently reviewing the plan. One of the measures identified in the
Clark and Floyd Counties plan is a summertime gasoline RVP limit of 7.8
psi. On August 3, 1994, the Indiana Air Pollution Control Board (IAPCB)
held a preliminary adoption hearing on a proposed rule to limit
summertime gasoline RVP to 7.8 psi, and on January 11, 1995, the IAPCB
adopted the rule. The rule became effective on August 5, 1995, and was
published in the Indiana State Register on August 1, 1995. IDEM
formally submitted the RVP rule to USEPA on August 25, 1995, as a
revision to the Indiana ozone SIP. USEPA made a finding of completeness
of this SIP revision in a letter dated October 2, 1995.
In the 15% RFP plan for Clark and Floyd Counties, Indiana reviewed
all reasonable control measures and calculated the total reductions
that it could achieve through these measures. The plan's modeling
demonstrates that limiting the RVP of gasoline to 7.8 reduces emissions
in Clark and Floyd Counties by approximately 2.29 tons per day.
``Opt-in'' into the Federal reformulated gasoline program, pursuant
to section 211(k)(6) of the Act, could also achieve this amount of
[[Page 4896]]
emission reduction, but could not be implemented in time to qualify as
a control measure which could help Clark and Floyd Counties meet 15%
RFP reductions by 1996. Other reasonable control measures which could
possibly achieve this degree of emission reduction, such as Stage II
vapor recovery, enhanced vehicle Inspection/Maintenance, or new
Reasonably Available Control Technology requirements for stationary
sources, are already part of the RFP plan for Clark and Floyd Counties.
Indiana has therefore selected the RVP control because it is the
only other reasonable and practicable emission control option available
to the Clark and Floyd County area 15% RFP plan, and gasoline RVP
control is necessary to ensure timely attainment with the NAAQS for
ozone. On this basis, USEPA has found that Indiana has sufficiently
justified establishing a 7.8 psi summertime gasoline RVP limit under
section 211(c)(4)(C) of the Act.
III. Analysis of Rule
The Indiana RVP rule specifies that the gasoline distributed in
Clark and Floyd Counties by all refineries, importers, carriers, or
terminals between May 1 and September 15, and all retail stations and
other end users who sell or dispense gasoline between June 1 and
September 15, must meet a RVP standard of 7.8 psi or less per gallon.
The rule provides a 1.0 psi volatility waiver for ethanol blended fuels
and establishes reformulated gasoline (RFG) as a compliant fuel in
order to allow gasoline distributors who sell only RFG to maintain a
presence in Clark and Floyd Counties. In addition, the Indiana RVP rule
requires all parties involved with the marketing of gasoline to
maintain records indicating that the volatility of each gasoline
shipment meets the 7.8 psi limit. The control period, ethanol blend
waiver, and recordkeeping requirements, are all consistent with the Act
and USEPA's final RVP rule (55 FR 23658). Reformulated gasoline is
suitable as a compliant fuel because it achieves slightly higher
emission reductions than gasoline with 7.8 psi RVP.
IDEM will oversee compliance with this rule. Gasoline sampling and
testing to assure compliance with the regulation began in the summer of
1995. Sampling will be performed in accordance with the procedures
described by USEPA in its gasoline volatility regulations in 40 CFR
part 80, Appendix D. Gasoline volatility and ethanol content tests will
be performed following procedures described by USEPA in 40 CFR part 80,
Appendices E and F, respectively. The Indiana Code (IC) 13-7-13-1,
states that any person who violates any provision of IC 13-1-1, IC 13-
1-3, or IC 13-1-11, or any regulation or standard adopted by one (1) of
the boards (i.e., IAPCB), or who violates any determination, permit, or
order made or issued by the commissioner (of IDEM) pursuant to IC 13-1-
1, or IC 13-1-3, is liable for a civil penalty not to exceed twenty-
five thousand dollars per day of any violation. Because this submittal
is a regulation adopted by the IAPCB, a violation of which subjects the
violator to penalties under IC 13-7-13-1, and because a violation of
the ozone SIP would also subject a violator to enforcement under
section 113 of the Act by USEPA, USEPA finds that the submittal
contains sufficient enforcement penalties for approval. In addition,
IDEM has submitted a civil penalty policy document which accounts for
various factors in the assessment of an appropriate civil penalty for
noncompliance with IAPCB rules, among them, the severity of the
violation, intent of the violator, and frequency of violations. USEPA
finds these criteria sufficient to deter non-compliance.
IV. Final Rulemaking Action
The USEPA approves the SIP revision submitted by the State of
Indiana. The State of Indiana has submitted a SIP revision which
includes enforceable state regulations consistent with Federal
requirements. Indiana has already conducted inspections at about one-
third of the regulated facilities during the first season of
compliance. Substantial penalties which will provide an adequate
incentive for the regulated industry to comply and are no less than the
expected cost of compliance are included in current Pollution Control
Board Regulation. USEPA is, therefore, approving this submittal.
Procedural Background
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, USEPA is publishing a separate document
in this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
April 9, 1996, unless USEPA receives adverse or critical comments by
March 11, 1996. If USEPA receives comments adverse to or critical of
the approval discussed above, USEPA will withdraw this approval before
its effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in a subsequent rulemaking document. Please be aware
that USEPA will institute another comment period on this action only if
warranted by significant revisions to the rulemaking based on any
comments received in response to today's action. Any parties interested
in commenting on this action should do so at this time. If no such
comments are received, USEPA hereby advises the public that this action
will be effective on April 9, 1996.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
USEPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the USEPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the USEPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The USEPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the USEPA explains why this
alternative is not selected or
[[Page 4897]]
the selection of this alternative is inconsistent with law.
This final rule only approves the incorporation of existing state
rules into the SIP and imposes no additional requirements. This rule is
estimated to result in the expenditure by State, local, and tribal
governments or the private sector of less then $100 million in any one
year. USEPA, therefore, has not prepared a budgetary impact statement
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Furthermore, because small
governments will not be significantly or uniquely affected by this
rule, the USEPA is not required to develop a plan with regard to small
governments.
Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq.,
USEPA must prepare a regulatory flexibility analysis assessing the
impact of any proposed or final rule on small entities. (5 U.S.C.
sections 603 and 604.) Alternatively, USEPA may certify that the rule
will not have a significant impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
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 a State has already imposed. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids USEPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410(a)(2).
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 April 9, 1996. 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, Hydrocarbon,
Incorporation by reference, Ozone.
Dated: November 21, 1995.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(101) to read
as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(101) On August 25, 1995, Indiana submitted a regulation which
reduced the maximum allowable volatility for gasoline sold in Clark and
Floyd Counties to 7.8 psi during the summer control period. The summer
control period is June 1, to September 15, for retail outlets and
wholesale customers, and May 1, to September 15, for all others.
(i) Incorporation by reference. 326 Indiana Administrative Code 13-
3 Control of Gasoline Reid Vapor Pressure. Sections 1 through 7.
Finally adopted by the Indiana Air Pollution Control Board January 11,
1995. Signed by the Secretary of State July 6, 1995. Effective August
5, 1995. Published at Indiana Register, Volume 18, Number 11, August 1,
1995.
[FR Doc. 96-2826 Filed 2-8-96; 8:45 am]
BILLING CODE 6560-50-P
