Approval and Promulgation of Implementation Plans; Gasoline Volatility Regulation State of New Jersey

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 133; NJ20-1-6709a; FRL-5218-3]

Approval and Promulgation of Implementation Plans; Gasoline

Volatility Regulation State of New Jersey

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today announcing

approval of certain revisions to the New Jersey State Implementation

Plan (SIP) for ozone. This rule incorporates into the New Jersey SIP

revisions to Subchapter 25, ``Control and Prohibition of Air Pollution

by Vehicular Fuel.'' These revisions include a modification to the

State's volatility standard for vehicular fuels and the addition of a

procedure by which persons may apply for an exemption from the Reid

Vapor Pressure (RVP) standard that allows the use of gasoline which

does not comply with that standard. This action is necessary to keep

the State's SIP consistent with changes to its existing regulations.

DATES: This action is effective on August 21, 1995 unless adverse or

critical comments are received by July [[Page 32274]] 21, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: All comments should be addressed to: William S. Baker,

Chief, Air Programs Branch, Air and Waste Management Division,

Environmental Protection Agency, Region II Office, 26 Federal Plaza,

New York, New York 10278.

Copies of the state submittal are available at the following

locations for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch,

26 Federal Plaza, Room 1034A, New York, New York 10278.

New Jersey Department of Environmental Protection, Bureau of Air

Quality Planning, 401 East State Street, CN027, Trenton, New Jersey

08625.

Environmental Protection Agency, Public Information Reference Unit, 401

M Street, S.W., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Environmental

Engineer, Technical Evaluation Section, Air Programs Branch,

Environmental Protection Agency, 26 Federal Plaza, Room 1034A, New

York, New York 10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION:

Background

On April 21, 1993, the New Jersey Department of Environmental

Protection and Energy (NJDEP) submitted to the EPA revisions to the

State's ozone SIP. This notice describes EPA's decision to approve as

described below, those revisions to New Jersey's motor vehicle fuels

volatility regulation, Subchapter 25 ``Control and Prohibition of Air

Pollution by Vehicular Fuels,'' Title 7, Chapter 27 of the New Jersey

Administrative Code (NJAC). Notice of Adoption of these revisions

appeared in the New Jersey Register on September 3, 1991. Subchapter 25

was first adopted by New Jersey on January 27, 1989 and approved by EPA

on June 16, 1989 in 54 FR 25572. Approval of that regulation was based

in part on NJDEP's commitment at the time to replace its test

methodology to an EPA promulgated method (see 54 FR 25581). Today's

revision to NJAC 7:27-25.4(d) fulfills that commitment.

This EPA action on New Jersey's SIP revision takes into account the

interaction of the New Jersey regulations and the federal reformulated

gasoline regulations, promulgated by EPA on February 16, 1994. The New

Jersey standard for RVP is a maximum of 9.0 psi, which EPA approved on

June 16, 1989. New Jersey also is subject to federal reformulated

gasoline requirements, which set an RVP maximum of 8.1 psi for the

period May 1 through September 15 for calendar years 1995 through 1997.

40 CFR 80.41, 80.65(a), 80.78(a)(1)(v). Starting in 1998, the

reformulated gasoline standard changes from an RVP standard to a VOC

performance standard. The then applicable federal standard will be a

maximum RVP of 9.0 psi. 40 CFR 80.27(a)(2). Thus, the New Jersey RVP

standard is identical to the federal standard starting in 1998, but the

reformulated gasoline summertime RVP standard is more stringent for the

years 1995-1997.

EPA promulgated the reformulated gasoline rules under the authority

of both Sec. 211(k) and Sec. 211(c)(1), thereby triggering application

of Sec. 211(c)(4). This provision preempts states from prescribing or

attempting to enforce any ``control or prohibition of the

characteristic or component of a fuel or fuel additive'' that is

nonidentical to one the Administrator has promulgated under

Sec. 211(c)(1). There is an exception for a nonidentical standard

contained in a state SIP where the standard is ``necessary to achieve''

the primary or secondary NAAQS that the SIP implements.

New Jersey's volatility regulations include a nonidentical standard

for RVP during the annual periods of the three years that the federal

RVP standard for reformulated gasoline will be in effect. During these

periods, the federal standard preempts the state standard, and the

nonidentical standard cannot be enforced. New Jersey has not changed

its RVP standard since EPA last approved the state regulations.

New Jersey's submission consists of various amendments to its

previously approved State RVP regulations. It has not resubmitted the

unamended portions of those regulations, and EPA takes no action on the

unamended State regulations, including the RVP standard. EPA approves

the amendments to New Jersey's State volatility regulations for

purposes other than enforcement of New Jersey's 9.0 RVP standard for

the period May 1 through September 15 for calendar years 1995-1997.

NJDEP's submittal contained the following revisions to Subchapter

25:

The revision to NJAC 7:27-25.4(a)1 extends the period during which

refiners, importers, blenders and distributors are required to test and

prepare test reports documenting the RVP of gasoline they ship. This

period, which was previously designated April 15 through September 1,

has been extended fifteen days, making it April 15 through September

15. This revision revises the State's required RVP testing period to

encompass both the ``high ozone season'' (the period from June 1 to

September 15) as well as the federally mandated ``regulatory control

period'' (the period from May 1 to September 15) as defined in 40 CFR

Sec. 80.27, ``Controls and prohibitions on gasoline volatility.'' EPA

approves this revision for calendar year 1998 and later.

Another revision to NJAC 7:27-25.4(a)1. allows persons subject to

reporting requirements to substitute other documentation, in place of a

test report, that certifies that the gasoline invoiced has a maximum

RVP of 9.0 psi and complies with all applicable State and federal

regulations. This revision is intended to reduce the paperwork burden

on affected parties. EPA approves the reporting revision for calendar

year 1998 and later.

The revision to NJAC 7:27-25.4(d) replaces the method previously

employed by the State to determine the RVP of gasoline with two EPA-

promulgated methods published at 40 CFR part 80, appendix E: Method 1--

Dry RVP Measurement Method and Method 2--Herzog Semi-Automatic Method.

The previous method, the American Society for Testing and Materials

(ASTM) Method D-323, was determined by EPA to understate the true RVP

of gasoline when oxygenated additives are present in the fuel.

The new section NJAC 7:27-25.7 establishes procedures whereby a

waiver may be obtained to use gasoline which does not conform to the

RVP standards for research and development purposes. New section 7:27-

25.8 establishes service fees for the application of these waivers and

annual compliance fees for operations which obtain these waivers. The

RVP standard is in effect during the May 1 through September 15 period.

In addition to this new regulation, New Jersey has submitted an

inventory estimating the excess emissions of volatile organic

substances (VOS) from non-conforming gasoline used for research and

development purposes. The requirements in NJAC 7:27-25.7, which must be

fulfilled before a party can obtain a waiver are at least as stringent

as those contained in 40 CFR 80.27(e) ``Testing exemptions.'' EPA

approves the revisions to the test procedure regulations, but not for

purposes of enforcing the State RVP requirement during calendar years

1995-1997.

The revision to NJAC 7:27-25.2 adds new definitions for the terms:

ASTM, EPA, facility, non-conforming gasoline, product development,

research, trial use [[Page 32275]] and volatile organic substances. In

addition, five current definitions in NJAC 7:27-25.2 are revised for

blender gasoline, person, Reid vapor pressure and standard conditions.

In addition a number of minor nonsubstantive definition changes have

been incorporated in the State's Response to Comments document included

with the SIP submission. These changes and additions are consistent

with EPA rules and are, therefore, approvable.

Conclusion

New Jersey's Subchapter 25 was first promulgated to regulate and

reduce the volatility of gasoline in order to control the emissions of

ozone precursors. Today's action approves revisions to the State's

Subchapter 25 as described above. Approval of these revisions brings

New Jersey's SIP up to date with its current fuels regulations and

incorporates changes necessary for successful implementation of fuel

volatility regulations required by EPA.

Nothing in this rule should be construed as permitting or allowing

or establishing a precedent for any future request for revision to any

SIP. Each request for revision to any SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

EPA is publishing this rule without prior proposal because EPA

views this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, the EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. Thus, this direct final action

will be effective August 21, 1995 unless, within 30 days of its

publication, adverse or critical comments are received.

If the EPA receives such comments, this rule will be withdrawn

before the effective date by publishing a subsequent notice that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this rule should

do so at this time. If no adverse comments are received, the public is

advised that this rule will be effective August 21, 1995. (See 47 FR

27073 and 59 FR 24059).

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA 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 that the State is already imposing. 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. Moveover, due to the nature of the federal-state relationship

under the Clean Air Act, preparation of a regulatory 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. US

EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

Under section 307(b)(1) of the Act, petitions for judicial review

of this rule must be filed in the United States Court of Appeals for

the appropriate circuit within 60 days from date of publication. 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 rule may not be challenged later in proceedings to

enforce its requirements. (See 307(b)(2)).

List of Subjects in 40 CFR Part 52

Air pollution control, Hydrocarbons, Ozone, Incorporated by

reference, Reporting and recordkeeping requirements, Volatile organic

compounds.

Dated: May 2, 1995.

William J. Muszynski,

Deputy Regional Administrator.

Title 40, chapter I, part 52, 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 FF--New Jersey

2. Section 52.1570 is amended by adding new paragraph (c)(52) to

read as follows:

Sec. 52.1570 Identification of plan.

* * * * *

(c) * * *

(52) Amendments submitted on April 21, 1993 by the New Jersey

Department of Environmental Protection and Energy to New Jersey Air

Code 7:27-25 revising the testing requirements to gasoline providers in

New Jersey are subject.

(i) Incorporation by reference:

(A) Amendments to Chapter 27, Title 7 of the New Jersey

Administrative Code Subchapter 25, ``Control and Prohibition of Air

Pollution from Vehicular Fuels,'' effective September 3, 1991.

3. Section 52.1605 is amended by adding the entry for Subchapter 25

to the table in numerical order as follows:

[[Page 32276]]

Sec. 52.1605 EPA-approved New Jersey State regulations.

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State State effective

regulation date EPA approved date Comments

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* * * *

* * *

Title 7,

Chapter 27

* * * *

* * *

Subchapter 25, September 3, 1991 [date and Approves 1992

``Control and citation of this revisions

Prohibition of notice]. except that

Air Pollution (1) for

by Vehicular calendar years

Fuels;''. 1995-1997,

test procedure

revisions in

N.J.A.C. 7:27-

25.4 (d) are

approved for

all uses other

than to

enforce the

9.0 RVP

standard; and

(2) testing

and reporting

period and

recordkeeping

revisions in

N.J.A.C. 7:27-

25.4 (a) are

approved for

calendar year

1998 and

later.

* * * *

* * *

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[FR Doc. 95-15034 Filed 6-20-95; 8:45 am]

BILLING CODE 6560-50-P