Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania; Oxygenated Gasoline Program

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 [email protected].

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

[[Page 70590]]

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.

[[Page 70591]]

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,

[[Page 70592]]

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