2015-08884. Approval and Promulgation of Implementation Plans; Alabama: Non-Interference Demonstration for Federal Low-Reid Vapor Pressure Requirement for the Birmingham Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving the State of Alabama's November 14, 2014, State Implementation Plan (SIP) revision, submitted through the Alabama Department of Environmental Management (ADEM), in support of the State's request that EPA change the Federal Reid Vapor Pressure (RVP) requirements for Jefferson and Shelby Counties (hereinafter referred to as the “Birmingham Area” or “Area”). Alabama's November 14, 2014, SIP revision evaluates whether changing the Federal RVP requirements in this Area would interfere with the Area's ability to meet the requirements of the Clean Air Act (CAA or Act). Specifically, Alabama's SIP revision concludes that relaxing the Federal RVP requirement from 7.8 pounds per square inch (psi) to 9.0 psi for gasoline sold between June 1 and September 15 of each year in the Area would not interfere with attainment or maintenance of the national ambient air quality standards (NAAQS) or with any other CAA requirement. EPA has determined that Alabama's November 14, 2014, SIP revision is consistent with the CAA.

DATES:

This rule will be effective April 17, 2015.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0867. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section (formerly the Regulatory Development Section), Air Planning and Implementation Branch (formerly the Air Planning Branch), Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Richard Wong of the Air Regulatory Management Section, in the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong may be reached by phone at [phone] or via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. What is the background for this final action?

The Birmingham Area was originally designated as a 1-hour ozone nonattainment area by EPA on March 3, 1978 (43 FR 8962). A 7.8 psi Federal RVP requirement was first applied to the Area during the high ozone season given its status as a marginal nonattainment area for the 1-hour ozone standard. Subsequently, in order to comply with the 1-hour ozone NAAQS, Alabama opted to implement a state RVP requirement of 7.0 psi for gasoline sold in the Birmingham Area during the high ozone season. EPA incorporated the state RVP requirement of 7.0 psi for gasoline sold in the Birmingham Area into the Alabama SIP on November 7, 2001. See 66 FR 56218. The Area attained the 1-hour ozone NAAQS and was redesignated to attainment for the 1-hour ozone on March 12, 2004, based on 2001-2003 ambient air quality monitoring data. See 69 FR 11798. Alabama's 1-hour ozone redesignation request did not include a request to remove the 7.0 psi state RVP requirement for the Birmingham Area from the SIP nor a request to relax the 7.8 psi Federal RVP standard.

On April 30, 2004, EPA designated and classified areas for the 8-hour ozone NAAQS that was promulgated on July 18, 1997, as unclassifiable/attainment or nonattainment for the new 8-hour ozone NAAQS. See 69 FR 23857. The Birmingham Area was designated as nonattainment for the 1997 8-hour ozone NAAQS with a design value of 0.087 parts per million (ppm). The Area was redesignated to attainment for the 1997 8-hour ozone NAAQS in a final rulemaking on May 12, 2006. See 71 FR 27631. Alabama's 1997 8-hour ozone redesignation request did not include a request for the removal of the 7.8 psi Federal RVP standard, nor did it include a request to change the 7.0 psi state RVP requirement for the Birmingham Area. However, to support its request for redesignation to attainment for the 1997 8-hour ozone NAAQS, Alabama took a conservative approach and estimated emissions using a 9.0 psi RVP in its modeling supporting the State's maintenance demonstration.

On March 2, 2012, Alabama submitted a SIP revision requesting that EPA remove the State's 7.0 psi RVP requirement for the Area from the SIP. EPA approved Alabama's March 2, 2012, SIP revision on April 20, 2012. See 77 FR 23619. In EPA's final rulemaking to remove the State RVP requirement, EPA noted that the action did not remove the 7.8 psi Federal RVP requirement for the Birmingham Area. Effective July 20, 2012, EPA designated the Birmingham Area as unclassifiable/attainment for the 2008 8-hour ozone NAAQS. See 77 FR 30088 (April 30, 2012). Although the Birmingham Area is designated as attainment, the federal 7.8 psi RVP requirement remains in place.

Alabama is now requesting that EPA remove the federal 7.8 psi RVP requirement for the Birmingham Area, and it submitted a SIP revision on November 14, 2014, containing a noninterference demonstration to support its request.

II. What is the history of the gasoline volatility requirement?

On August 19, 1987 (52 FR 31274), EPA determined that gasoline nationwide had become increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as volatile organic compounds (VOCs), are precursors to the formation of tropospheric ozone and contribute to the nation's ground-level ozone problem. Exposure to ground-level ozone can reduce lung function (thereby aggravating asthma or other respiratory conditions), increase susceptibility to respiratory infection, and may contribute to premature death in people with heart and lung disease.

The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under section 211(c) of CAA, EPA promulgated regulations on March 22, 1989 (54 FR 11868), that set maximum limits for the RVP of gasoline sold during the high ozone season. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the summer ozone control season. On June 11, 1990 (55 FR 23658), EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the State, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS during the high ozone season).

The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h) requires EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. Section 211(h) prohibits EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.

On December 12, 1991 (56 FR 64704), EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658). A current listing of the RVP requirements for states can be found at 40 CFR 80.27(a)(2) as well as on EPA's Web site at: http://www.epa.gov/​otaq/​fuels/​gasolinefuels/​volatility/​standards.htm.

As explained in the December 12, 1991 (56 FR 64704), Phase II rulemaking, EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, section 107(d)(3) of the Act requires the state to make a showing, pursuant to section 175A of the Act, that the area is capable of maintaining attainment for the ozone NAAQS for ten years after redesignation. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates, to the satisfaction of EPA, that the area will maintain attainment for ten years without the need for the more stringent volatility standard.

As noted above, Alabama did not request relaxation of the applicable 7.8 psi federal RVP standard when the Birmingham Area was redesignated to attainment for the either the 1-hour or the 1997 8-hour ozone NAAQS but did take a conservative approach in estimating emissions for the maintenance plan associated with its redesignation request for the 1997 8-hour ozone NAAQS by using a level of 9.0 psi.

III. What are the Section 110(l) requirements?

To support Alabama's request to relax the federal RVP requirement in the Birmingham Area, the State must demonstrate that the requested change will satisfy section 110(l) of the CAA. Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the Act. EPA's criterion for determining the approvability of Alabama's November 14, 2014, SIP revision is whether the noninterference demonstration associated with the relaxation request satisfies section 110(l). Although the modeling associated with Alabama's maintenance plans for the 1997 8-hour ozone NAAQS and the 1997 Annual PM_2.5 and are premised upon the 9.0 psi RVP requirements, no requests for a change in the federal RVP requirement were made at the time that EPA approved these plans.^[1] EPA's approval of the maintenance plans was based on an evaluation of the air quality monitoring data at the time of the EPA actions, the information provided in the individual maintenance plans, and the maintenance plan requirements in the CAA.

EPA evaluates each section 110(l) noninterference demonstration on a case-by-case basis considering the circumstances of each SIP revision. EPA interprets 110(l) as applying to all NAAQS that are in effect, including those that have been promulgated but for which the EPA has not yet made designations. The degree of analysis focused on any particular NAAQS in a noninterference demonstration varies depending on the nature of the emissions associated with the SIP revision. The State's SIP submission included a noninterference demonstration evaluating the impact that the removal of the 7.8 psi RVP requirement would have on maintenance of the 1997 and 2008 ozone standards and on the maintenance of the other NAAQS. ADEM's noninterference analysis utilized EPA's 2010b Motor Vehicle Emissions Simulator (MOVES) emission modeling system to estimate the potential impacts to the NAAQS that might result from changing the high ozone season RVP requirement from 7.8 psi to 9.0 psi. The modeling results predicted minor increases in VOC and NO_X emissions from RVP relaxation and larger decreases in emissions resulting from fleet turnover. The modeling also predicted continual decreases in VOC and NO_X emissions from mobile sources for years 2015 through 2024 using 9.0 psi RVP fuel and the fleet turnover assumptions contained in EPA's 2010b MOVES model. Therefore, the state's modeling analysis demonstrated that a change in the summertime RVP limit to 9.0 psi would not interfere with attainment or maintenance of the ozone, PM or NO₂ NAAQS. EPA presented a detailed analysis of the State's noninterference demonstration in Section V of the proposed rulemaking notice. See 80 FR 8018, 8020-23 (February 13, 2015).

EPA notes that this action only approves the State's technical demonstration that the Area can attain and maintain the NAAQS and meet other CAA requirements after switching to the sale of gasoline with an RVP of 9.0 psi in the Birmingham Area during the high ozone season and amends the SIP to include this demonstration. Consistent with CAA section 211(h) and the Phase II volatility regulations, EPA will initiate a separate rulemaking to relax the current federal requirement to use gasoline with an RVP of 7.8 psi in the Birmingham Area.

IV. What is EPA's response to comments?

EPA received two sets of comments on its February 13, 2015, proposed rulemaking action. Specifically, EPA received comments from Sierra Club and from one member of the general public (these commenters are hereinafter collectively referred to as “the Commenter”). Full sets of these comments are provided in the docket for this final action. A summary of the comments and EPA's responses are provided below.

Comment 1: The Commenter does not believe that the Deputy Regional Administrator was authorized to sign the proposed approval of Alabama's SIP submission because, according to the Commenter, only the Regional Administrator is authorized under EPA's delegations manual to sign regional SIP actions.

Response 1: The Commenter is incorrect. Under CAA section 110(k), the EPA Administrator is tasked with acting on SIP submittals by approving or disapproving the submittal in whole or in part. This authority may be delegated to other EPA officials. It is the EPA's policy that, in order for other Agency management officials to act on behalf of the Administrator, the authority must be delegated officially. These official delegations are recorded in the “EPA Delegations Manual.” Under EPA Delegation 1-21. Federal Register (1200 TN 543, 4/22/2002), the EPA Administrator has delegated the authority to sign and submit proposed actions on SIPs for publication in the Federal Register to the Assistant Administrator for Air and Radiation and to Regional Administrators. Section 2.d. This delegation allows for this authority to be redelegated to the Deputies of the authorized officials. Section 4.a. Based on the authority to redelegate provided in Delegation 1-21, EPA Region 4 redelegated the authority to sign and submit proposed actions on SIPs for publication in the Federal Register to the Deputy Regional Administrator. See EPA Region 4 Delegation 1-21. Therefore, an appropriate EPA official, the Region 4 Deputy Regional Administrator, signed and submitted the proposal to approve Alabama's November 14, 2014, SIP submission. EPA notes that an earlier delegation, Delegation 7-10. Approval/Disapproval of State Implementation Plans (1200 TN 441, 5/6/97), did not allow redelegation of the authority to act on proposed SIP actions beyond the Regional Administrator. Because Delegation 1-21 post-dates Delegation 7-10 and specifically addresses the authority at issue, it is the applicable delegation for EPA's February 13, 2015, proposed rulemaking action. Delegation 1-21 does not change the limitation on redelegation beyond the Regional Administrator found in Delegation 7-10 for final actions on SIPs.

Comment 2: The Commenter “would not approve of the noninterference demonstration submitted by the SIP because there has been insufficient evidence to show that the pollution levels will continue to decrease for the next ten years.” The Commenter acknowledges that the “data shows that there has been a downtrend in the amount of pollution,” but believes that the data collected by the State was “based on RVP numbers when the requirements for RVP was to keep it under 7.8 RVP” and that “there is nothing to say that this downtrend isn't the result of the requirement itself.” According to the Commenter, EPA should require evidence that the downtrend will continue despite the “raised requirements for RVP.”

Response 2: EPA disagrees with the Commenter. The criterion for determining the approvability of Alabama's November 14, 2014, SIP revision is whether the noninterference demonstration satisfies section 110(l). Under this section of the CAA, EPA can approve a SIP relaxation if the State demonstrates that any increases allowed by the revision would not be enough to interfere with NAAQS attainment or maintenance. There is no prescriptive CAA requirement that each noninterference analysis demonstrate that pollution levels will decrease for ten years following the relaxation of a SIP requirement.

In its demonstration, Alabama used EPA's mobile source modeling software to estimate the change in mobile source emissions resulting from a switch to 9.0 psi RVP fuel and to estimate total mobile source emissions over the next ten years using 9.0 psi RVP fuel. Alabama's modeling projects that mobile source emissions will continue to decrease in the Area through 2024 with the use of 9.0 psi RVP fuel and that the minor increases in VOC and NO_X emissions from RVP relaxation are outweighed by larger decreases in emissions resulting from fleet turnover.^[2] The ozone and PM design values presented in Tables 4 and 5 of the proposed rulemaking notice are far enough below the NAAQS that the minor increase in mobile source emissions associated with the RVP relaxation, ignoring reductions from fleet turnover, would not interfere with maintenance of these standards. EPA acknowledges that the downtrend in these design values was observed while 7.8 psi RVP fuel was used in the Area; however, the State's modeling predicts that this downtrend will continue with the use of 9.0 psi RVP fuel.

Comment 3: The Commenter believes that approving the State's noninterference demonstration would be “contradictory to the purpose of the CAA;” that “we should be taking steps toward limiting gasoline consumption and RVP levels, not steps backwards;” and that “unless dire need is shown to raise the levels, as has not been shown here, we should not allow an increase in pollution by a State.”

Response 3: EPA disagrees with the Commenter. The Administrator is required to approve a SIP submittal that complies with the provisions of the Act, and as discussed above, section 110(l) governs EPA's evaluation of Alabama's noninterference demonstration.^[3] 42 U.S.C. 7410(k); 40 CFR 52.02(a). The test for approvability under section 110(l) is not “dire need,” it is whether any emissions increases resulting from the proposed SIP relaxation would be enough to interfere with the attainment or maintenance of a NAAQS. EPA is therefore approving the nonattainment demonstration pursuant to section 110(l) because it has concluded that the switch to 9.0 psi RVP fuel will not interfere with the attainment or maintenance of a NAAQS for the reasons discussed in Response 2 and in Section V of the proposed rulemaking notice.

V. Final Action

EPA is taking final action to approve the State of Alabama's noninterference demonstration, submitted on November 14, 2014, in support of the State's request that EPA change the Federal RVP requirements for the Birmingham Area from 7.8 psi to 9.0 psi. Specifically, EPA is approving that this change in the RVP requirements for the Birmingham Area will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA.

EPA has determined that Alabama's November 14, 2014, SIP revision, containing the noninterference demonstration associated with the State's request for the change of the Federal RVP requirements is consistent with the applicable provisions of the CAA. EPA is not approving action today to remove the Birmingham Area from the Federal 7.8 psi RVP requirement. Any such action will occur in a separate and subsequent rulemaking.

In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary because this action approves a noninterference demonstration that will serve as the basis of a subsequent action to relieve the Area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule will serve as a basis for a subsequent action to relieve the Area from certain CAA requirements. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submittal that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not propose to impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, October 7, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000) nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 16, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: April 7, 2015.

Heather McTeer Toney,

Regional Administrator, Region 4.

40 CFR parts 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart B—Alabama

2. Section 52.50(e) is amended by adding a new entry for “Non-interference Demonstration for Federal Low-Reid Vapor Pressure Requirement for the Birmingham Area” at the end of the table to read as follows:

§ 52.50

Identification of plan.

* * * * *

(e) * * *

EPA Approved Alabama Non-Regulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Non-interference Demonstration for Federal Low-Reid Vapor Pressure Requirement for the Birmingham Area	Jefferson and Shelby Counties	11/14/2014	4/17/2015 [Insert citation of publication].

Footnotes

1.  The State used a planning factor of 7.8 psi in its maintenance plan associated with the redesignation for the 2006 24-hour PM_2.5 NAAQS. In the February 13, 2015, proposed rulemaking action, EPA incorrectly stated that the modeling associated with that maintenance plan was premised on a 9.0 psi RVP requirement. Alabama's use of a 7.8 psi planning factor in the aforementioned maintenance plan does not affect EPA's analysis of the State's November 14, 2014 noninterference demonstration because the demonstration does not rely on that maintenance plan or the modeling associated with that maintenance plan.

2.  Alabama estimated that relaxing the RVP standard would increase NO_X and VOC emissions by 24 tpy and 80 tpy, respectively, and that fleet turnover will reduce NO_X and VOC emissions by 489 tpy and 156 tpy, respectively, in the Area for 2015. See 80 FR 8021.

3.  EPA also notes that the requested change from 7.8 psi to 9.0 psi is within the federal approved RVP limit for ozone attainment areas. See 40 CFR 80.27; CAA section 211(h)(2) (prohibiting EPA from establishing a volatility standard more stringent than 9.0 psi in an ozone attainment area that was not redesignated from nonattainment).