Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Gasoline Volatility Requirements for the Pittsburgh- Beaver Valley Ozone Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX NO. PA110-4068a; FRL-6102-9]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Gasoline Volatility Requirements for the Pittsburgh-

Beaver Valley Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Pennsylvania. This revision amends the

gasoline volatility requirement for the Pittsburgh-Beaver Valley

nonattainment area. The intended effect of this action is to approve a

summertime gasoline Reid vapor pressure (RVP) limit of 7.8 pounds per

square inch (psi) for gasoline sold in Allegheny, Armstrong, Beaver,

Butler, Fayette, Washington, and Westmoreland counties in Pennsylvania.

These seven counties comprise the Pittsburgh-Beaver Valley ozone

nonattainment area.

DATES: This final rule will become effective July 23, 1998 without

further notification unless the Agency receives relevant adverse

comments by July 8, 1998. If adverse comment is received, EPA will

publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: Comments may be mailed to David Arnold, Chief, Ozone and

Mobile Source Section, Mailcode 3AP21, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

19107. Copies of the documents relevant to this action are available

for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

841 Chestnut Building, Philadelphia, Pennsylvania 19107; Pennsylvania

Department of Environmental Protection, Bureau of Air Quality, P.O. Box

8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Marcia L. Spink at (215) 566-2104.

SUPPLEMENTARY INFORMATION: On December 3, 1997, the Commonwealth of

Pennsylvania submitted a formal revision to its State Implementation

Plan (SIP). The SIP revision amends the gasoline volatility requirement

for the seven county Pittsburgh-Beaver Valley ozone nonattainment area

(the Pittsburgh area). On April 17, 1998 the Commonwealth of

Pennsylvania revised its December 3, 1997 SIP revision request by

deleting the provisions relating to the use of reformulated gasoline

(RFG).

I. Background

In July 1995, EPA determined that the air quality of the Pittsburgh

area met the national ambient air quality standard

[[Page 31117]]

(NAAQS) for ozone based upon 1991 through 1994 monitoring data. (Note:

That this determination by EPA did not constitute an agency action to

redesignate the Pittsburgh area to attainment.) Therefore, under an EPA

policy applicable to ozone areas with three years of violation free

data, the requirement for an attainment demonstration and other related

requirements were waived for the Pittsburgh area. However, subsequent

to EPA's determination, there were a number of exceedances in the 1995

ozone season that resulted in a violation of the ozone NAAQS, and the

previously waived requirements, including the need for an attainment

demonstration, were reinstated. In response to the violation of the

NAAQS in the Pittsburgh area, Pennsylvania Governor Thomas Ridge

convened the Southwestern Pennsylvania Stakeholder Working Group to

review the problem and recommend additional emission control strategies

to reduce ozone precursors and produce the required attainment

demonstration.

One of the measures the Southwestern Pennsylvania Stakeholder

Working Group (the Stakeholders) recommended as necessary to achieve

the ozone standard in the Pittsburgh area was a fuels program for

cleaner gasoline. There was much debate during the Stakeholders'

deliberations as to whether the Group should recommend the adoption of

a lower RVP program or whether the Governor should opt the moderate

Pittsburgh ozone nonattainment area into the federal RFG program, which

is mandated for ozone nonattainment areas classified as serious or

above. (The federal RFG program is mandated, for example, in the

Philadelphia-Wilmington-Trenton severe ozone nonattainment area.) The

Stakeholders' eventual majority recommendation was for a so-called

``dual fuel rule'' for the Pittsburgh area whereby either low RVP or

RFG could be used to provide for market driven considerations. (There

was a minority opinion issued by some Stakeholders who felt compelled

to represent their constituencies by ``going on record'' that they

recommended the federal RFG program.) Under the dual fuel scenario,

however, it is important to recognize that any RFG distributed and sold

in the Pittsburgh area would not have been required by and enforceable

under the federal RFG program. The Pennsylvania Department of

Environmental Protection (PADEP), in accordance with the Stakeholders'

majority recommendation, proceeded to adopt a dual fuel regulation for

the Pittsburgh area, and on December 3, 1997 submitted that regulation

to EPA as a SIP revision.

After PADEP adopted the dual fuel regulation and submitted it as a

SIP revision, however, the dual fuel regulation became an issue of

concern and debate in the Pennsylvania legislature. While concerns were

raised over both low RVP gasoline and RFG, there was an understanding

that a clean fuels program was an ozone precursor reduction measure

that the Stakeholders had recommended as both cost-effective and

necessary for timely attainment of the NAAQS for ozone in the

Pittsburgh area. Moreover, the attainment demonstration submitted by

PADEP to satisfy the reinstated requirement that such a demonstration

be submitted for the Pittsburgh area by December 31, 1997, took credit

for the reductions predicted to be achieved by the implementation of

the clean fuels program. Modeling analyses performed during the

Stakeholders process indicated that there was very little difference

between low RVP gasoline and RFG as control strategies in terms of

their effectiveness in lowering predicted ground level ozone

concentrations. In fact, the modeling analyses performed for the actual

attainment demonstration assumed the level of emission reductions that

would occur if the low RVP program were to be implemented.

In order to move forward with the implementation of a clean

gasoline program in the Pittsburgh area in time to realize its public

health benefits for the 1998 ozone season, the PADEP informed the

legislature that it would amend the dual fuel regulations to remove the

RFG provisions and that low RVP gasoline would be the ``complying

fuel'' for the Pittsburgh area. On April 17, 1998, Pennsylvania amended

its December 3, 1997 SIP revision request to EPA by asking that only

the low RVP-related provisions of its regulations be approved into the

SIP for the Pittsburgh area.

This low RVP program adds new regulations to the Pennsylvania SIP

for the Pittsburgh area. These new regulations apply to the sale of

gasoline in the Pittsburgh area between May 1 and September 15 of each

calendar year. The regulation imposes a RVP limit of 7.8 pounds per

square inch (psi) on all gasoline marketed in Allegheny, Armstrong,

Beaver, Butler, Fayette, Washington, and Westmoreland counties. The

restrictions on fuel would be effective between May 1 and September 15

of each year beginning in calender year 1998 for all refiners,

distributors, resellers, carriers, and wholesalers. The restrictions

would be applicable between June 1 and September 15 of each year for

all wholesale purchaser consumers and retailers of gasoline.

RVP is a measure of a fuel's volatility and thereby affects the

rate at which gasoline evaporates and emits VOCs. The lower a fuel's

RVP, the lower the rate of evaporation of the fuel. The RVP of gasoline

can be lowered by reducing the amount of its volatile components, such

as butane. Lowering RVP of gasoline sold during the summer months can

offset the effect of summer temperature upon the evaporation of the

fuel, which in turn lowers emissions of VOCs. Because VOCs are a

component in the formation of ground-level ozone on sunny, hot summer

days, lowering the RVP of gasoline sold in the Pittsburgh area is an

effective ozone control strategy because it will reduce the VOC

emissions from gasoline marketing and from vehicles.

The EPA first proposed to regulate gasoline RVP in 1987 (52 FR

31274). The EPA's gasoline RVP proposal resulted in a two-phased final

regulation which was in large part incorporated into the 1990

Amendments to the CAA in section 211(h). Phase I of the federal

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). This federal 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 federal regulation limits

the volatility of gasoline sold during the high ozone season to 9.0 psi

for Class C areas and 7.8 psi for Class B ozone non-attainment areas.

Pennsylvania is a Class C State, and therefore, required under the

Federal rule to meet the 9.0 psi standard. Therefore, in order to

approve the Commonwealth's SIP revision, EPA must find under section

211(c)(4)(C) of the CAA that the state's requirement is necessary for

the Pittsburgh area to meet the ozone NAAQS.

II. Summary and Approval of SIP Revision

State governments are preempted under section 211(c)(4)(A) of the

CAA from prescribing a control respecting a fuel characteristic or

component that is not identical to a federal control promulgated under

section 211(c)(1) that is applicable to the same characteristic or

component. However, under section 211(c)(4)(C) a State can require,

through a SIP revision, a more stringent RVP standard for a particular

[[Page 31118]]

area if the EPA finds that the more stringent standard is necessary to

achieve the NAAQS for ozone and approves the SIP revision. In addition

to demonstrating necessity under section 211(c)(4)(C), under section

110 the State must also submit an adequate description of the low RVP

program and associated enforcement procedures. If EPA finds that a

State has shown necessity and has provided an adequate description of

the program, EPA may approve the SIP revision requiring the lower state

RVP standard for the selected areas.

A. Approval of Pennsylvania's Preempted State Fuel Control Program

Pennsylvania has submitted to EPA data and analysis to support a

finding under section 211(c)(4)(C) that its low RVP requirement is

necessary for the Pittsburgh nonattainment area to achieve the ozone

NAAQS. The Commonwealth has (1) identified the quantity of reductions

of VOCs needed to achieve attainment of the ozone NAAQS; (2) identified

all other control measures and the quantity of reductions each would

achieve; and (3) shown that even with the implementation of all

reasonable and practicable control measures, the additional emissions

from the low RVP program are needed for the Pittsburgh area to meet the

ozone NAAQS on a timely basis.

Pennsylvania submitted analyses to EPA demonstrating the necessity

for the low RVP requirement as part of the attainment demonstration SIP

revision it submitted for the Pittsburgh area. The Commonwealth's

submission used Urban Airshed Modeling to estimate the quantity of

emissions of VOCs necessary to achieve the ozone NAAQS.

Next, the Stakeholders evaluated a broad range of potential control

measures to determine whether there are sufficient reasonable and

practicable measures available to produce the needed emissions

reductions without requiring low RVP gasoline. In addition to assessing

the quantity of emission reductions attributable to each control

measure, the state also considered the time needed for implementations

and cost effectiveness of each measure in evaluating the reasonableness

of the other control measures in comparison to the low RVP gasoline

requirements. Pennsylvania found that a 7.8 psi RVP requirement would

produce an estimated 13.12 tons per day of VOC emissions reductions.

Based on the Commonwealth's evaluation, EPA finds that there are not

sufficient other reasonable and practicable measures available to

produce the quantity of emissions reductions needed to achieve the

NAAQS for ozone, and thus a low RVP requirement is necessary.

The EPA concurs with the Commonwealth's analysis and its implicit

determination that ``other measures'' (as specified in section

211(c)(4)) need not encompass other state fuel measures including state

opt-in to RFG. The EPA believes that the CAA does not require a state

to demonstrate that other fuel 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. Thus, in demonstrating

that measures other than requiring low RVP gasoline are unreasonable or

impracticable, a state is not required to submit a demonstration that

other state fuel requirements or state opt-in to RFG are unreasonable

or impracticable. This interpretation resolves the ambiguity of the

phrase ``other measures'' and reasonably balances the interests

underlying the statutory preemption provision. In addition, the result

preserves the state's role, specified in section 101(a)(3) of the CAA

as the entity primarily responsible for determining the mix of controls

to be used to achieve the required emission reductions. The

Commonwealth has already adopted virtually every other available

control measure it could practically implement in the Pittsburgh area.

The other measures that have been adopted to reduce ozone precursor

emissions, (such as enhanced Inspection and Maintenance, Stage II Vapor

Recovery, Phase II of the NOx reduction requirements implemented

pursuant to the Ozone Transport Region's Memorandum of Understanding,

reasonably available control technology on numerous source categories)

would not achieve all the reductions needed. A detailed discussion of

Pennsylvania's evaluation relative to the emission reduction potential

of each of these measures can be found as an attachment to EPA's

Technical Support Document (TSD) prepared for this rulemaking. Copies

of TSD are available, upon request, from the Regional Office listed in

the ADDRESSES of this document.

B. Description of Pennsylvania Low RVP Program

The Pennsylvania submittal specifies that the gasoline distributed

in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and

Westmoreland counties at the retail level must meet a RVP standard of

7.8 psi or less per gallon between May 1 and September 1 of each

calendar year for all refiners, distributors, resellers, carriers, and

wholesalers. The restrictions would be applicable between June 1 and

September 15 of each year for all wholesale purchaser consumers and

retailers of gasoline. In order for the seven county area to meet the

7.8 psi standard in calendar year 1998, the requirement will be

effective for all entities as well as wholesale purchaser consumers and

retailers on July 23, 1998. Because the State has satisfied all the

program description elements, EPA has determined the Commonwealth's low

RVP program for the Pittsburgh area meets all applicable federal

requirements for approval as a SIP revision.

To ensure enforcement of the program, each entity in the gasoline

dispensing network, beginning with the terminal owner, is required to

maintain records of the date, name and address of transferor and

transferee, the location and volume of gasoline being sold or

transferred, and a statement certifying that the gasoline meets the RVP

requirement. The PADEP will conduct enforcement of the program.

Sampling will be performed in accordance with the procedures described

by EPA in its gasoline volatility regulations in 40 CFR part 80,

Appendix D. Gasoline volatility tests will be performed following

procedures described by EPA in 40 CFR part 80, Appendix E.

EPA is approving this rule without prior proposal because it

anticipates no adverse comments and believes that expedited approval of

the low RVP program so it is implemented for the 1998 ozone season is

in the best interest of the citizens of the area from a public health

perspective. However, in the proposed rules section of this Federal

Register publication, EPA is publishing a separate document that will

serve as the proposal to approve the SIP revision should EPA receive

relevant adverse comments on the notice of proposed rulemaking. This

rule will become effective July 23, 1998 without further notice unless

the Agency receives relevant adverse comments by July 8, 1998.

Should EPA receive such comments, it will publish a notice

informing the public that this rule did not take effect. All public

comments received will then be addressed in a subsequent final rule

based on the proposed rule. EPA will not institute a second comment

period on the proposed rule. Parties interested in commenting on this

action should do so at this time. If no such comments are received, the

public is advised that this rule will become effective on July 23, 1998

and no further action will be taken on the proposed rule.

[[Page 31119]]

Final Action

EPA is approving as a revision to the Pennsylvania SIP, the

provisions of Pennsylvania's regulations pertaining to low RVP gasoline

requirements for the Pittsburgh-Beaver Valley ozone nonattainment area

submitted by the Pennsylvania Department of Environmental Protection on

December 3, 1997 and April 17, 1998. Nothing in this action should be

construed as permitting or allowing or establishing a precedent for any

future request for revision to any state implementation plan. Each

request for revision to the state implementation plan shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866.

B. Regulatory Flexibility

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. This federal action authorizes and approves into the

Pennsylvania SIP requirements previously adopted by the state, and

imposes no new requirements. Therefore, EPA certifies 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 CAA,

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).

C. 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

costs to State, local, or tribal governments in the aggregate, or to

the private sector, of $100 million or more in any one year. 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 this final action does not include a federal mandate

that may result in estimated costs of $100 million or more to either

State, local, or tribal governments in the aggregate, or to the private

sector. This federal action authorizes and approves into the

Pennsylvania SIP requirements previously adopted by the State, and

imposes no new requirements. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action.

D. Submission to Congress and the General Accounting Office

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).

E. 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 August 7, 1998. 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, pertaining to the low RVP gasoline

volatility requirements for the Pittsburgh-Beaver Valley ozone

nonattainment area, may not be challenged later in proceedings to

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

F. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks. Executive Order 13045 (62 FR 19885, April 23, 1997), applies to

any rule that is (1) likely to be ``economically significant'' as

defined under Executive Order 12866, and (2) the Agency has reason to

believe that the environmental health or safety risk addressed by the

rule may have a disproportionate effect on children. If a 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 rule is not subject to E.O. 13045, ``Protection of Children

from Environmental Health Risks and Safety Risks'' because this is not

an ``economically significant'' regulatory action as defined by E.O.

12866, and because it does not involve decisions on environmental

health or safety risks that may disproportionately affect children.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Reporting and

recordkeeping requirements.

Dated: May 15, 1998.

A.R. Morris,

Acting Regional Administrator, Region III.

40 CFR part 52, subpart NN of chapter I, title 40 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 paragraph (c)(131) to read

as follows:

Sec. 52.2020 Identification of plan.

* * * * *

(c) * * *

(131) Revisions to the Pennsylvania Regulations governing gasoline

volatility requirements submitted on December 3, 1997 and April 17,

1998 by the Pennsylvania Department of Environmental Protection:

(i) Incorporation by reference.

(A) Letters dated December 3, 1997 and April 17, 1998 from the

Pennsylvania Department of Environmental Protection transmitting the

low RVP gasoline volatility

[[Page 31120]]

requirements for the Pittsburgh-Beaver Valley ozone nonattainment area.

(B) Revisions to 25 Pa Code, Chapters 121, 126, 139 pertaining to

Gasoline Volatility Requirements, effective November 1, 1997.

(1) Revisions to section 121.1--definitions of compliant fuel,

distributor, Importer, Low RVP gasoline, Pittsburgh-Beaver Valley Area,

RVP-Reid Vapor Pressure.

(2) Addition of sections 126.301(a) through (c), 126.302 except for

portions relating to RFG of (a)(6), and 126.303 (a).

(3) Addition of paragraphs 139.4(18) and (19) pertaining to

sampling procedures for Reid Vapor Pressure and gasoline volatility.

(ii) Additional Material--Remainder of December 3, 1997 State

submittal pertaining to the use of low RVP gasoline.

[FR Doc. 98-15023 Filed 6-5-98; 8:45 am]

BILLING CODE 6560-50-P