Regulations of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to the Phoenix, Arizona Moderate Ozone
Nonattainment Area
[Rules and Regulations]
[Page 7164-7167]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5689-2]
Regulations of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to the Phoenix, Arizona Moderate Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended
(Act), the Administrator of EPA shall require the sale of reformulated
gasoline in an ozone nonattainment area classified as Marginal,
Moderate, Serious, or Severe upon the application of the governor of
the state in which the nonattainment area is located. This action
extends the prohibition set forth in section 211(k)(5) against the sale
of conventional (i.e., non-reformulated) gasoline to the Phoenix,
Arizona moderate ozone nonattainment area. The Agency is revising the
regulations such that the implementation date of the prohibition
described herein shall take effect on the effective date of this rule
or June 1, 1997, whichever is later, for all persons other than
retailers and wholesale purchaser-consumers (i.e., refiners, importers,
and distributors). For retailers and wholesale purchaser-consumers, the
implementation date of the prohibition described herein shall take
effect 30 days after the effective date of this rule or July 1, 1997,
whichever is later. As of the implementation date for retailers and
wholesale purchaser-consumers, the Phoenix ozone nonattainment area
will be a covered area for all purposes in the federal RFG program.
DATES: This action will be effective on April 4, 1997 unless notice is
received by March 20, 1997 from someone who wishes to submit adverse or
critical comments or requests an opportunity for a public hearing. If
such comments or a request for a public hearing are received by the
Agency, EPA will withdraw this direct final rule and a timely notice
will be published in the Federal Register to indicate the withdrawal.
ADDRESSES: Comments should be submitted (in duplicate, if possible) to
Air Docket Section, Mail Code 6102, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460. A copy should also be
sent to Janice Raburn at U.S. Environmental Protection Agency, Office
of Air and Radiation, 401 M Street, SW (6406J), Washington, DC 20460. A
copy should also be sent to EPA Region IX, 75 Hawthorne Street, AIR-2,
17th Floor, San Francisco, CA 94105.
Materials relevant to this document have been placed in Docket A-
97-02. The docket is located at the Air Docket Section, Mail Code 6102,
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, in room M-1500 Waterside Mall. Documents may be inspected from
8:00 a.m. to 5:30 p.m. A reasonable fee may be charged for copying
docket material. An identical docket is also located in EPA's Region IX
office in Docket A-AZ-97. The docket is located at 75 Hawthorne Street,
AIR-2, 17th Floor, San Francisco, California 94105. Documents may be
inspected from 9:00 a.m. to noon and from 1:00--4:00 p.m. A reasonable
fee may be charged for copying docket material.
FOR FURTHER INFORMATION CONTACT: Janice Raburn or Paul Argyropoulos at
U.S. Environmental Protection Agency Office of Air and Radiation, 401 M
Street, SW (6406J), Washington, DC 20460, (202) 233-9000.
SUPPLEMENTARY INFORMATION: A copy of this action is available on
the OAQPS Technology Transfer Network Bulletin Board System
(TTNBBS) and on the Office of Mobile Sources' World Wide Web cite,
http://www.epa.gov/OMSWWW. The TTNBBS can be accessed with a dial-
in phone line and a high-speed modem (PH# 919-541-5742). The parity
of your modem should be set to none, the data bits to 8, and the
stop bits to 1. Either a 1200, 2400, or 9600 baud modem should be
used. When first signing on, the user will be required to answer
some basic informational questions for registration purposes. After
completing the registration process, proceed through the following
series of menus:
(M) OMS.
(K) Rulemaking and Reporting.
(3) Fuels.
(9) Reformulated gasoline.
A list of ZIP files will be shown, all of which are related to the
reformulated gasoline rulemaking process. Today's action will be in the
form of a ZIP file and can be identified by the following title:
OPTOUT.ZIP. To download this file, type the instructions below and
transfer according to the appropriate software on your computer:
(D)ownload, (P)rotocol, (E)xamine, (N)ew, (L)ist, or (H)elp Selection
or (CR) to exit: D filename.zip.
You will be given a list of transfer protocols from which you must
choose one that matches with the terminal software on your own
computer. The
[[Page 7165]]
software should then be opened and directed to receive the file using
the same protocol. Programs and instructions for de-archiving
compressed files can be found via (S)ystems Utilities from the top
menu, under (A)rchivers/de-archivers. Please note that due to
differences between the software used to develop the document and the
software into which the document may be downloaded, changes in format,
page length, etc. may occur.
Regulated entities. Entities potentially regulated by this action
are those which produce, supply or distribute motor gasoline. Regulated
categories and entities include:
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Examples of regulated
Category entities
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Industry.................................. Petroleum refiners, motor
gasoline distributors and
retailers.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your business is regulated by this action, you should carefully examine
the list of areas covered by the reformulated gasoline program in
Sec. 80.70 of title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
I. Background
As part of the Clean Air Act Amendments of 1990, Congress added a
new subsection (k) to section 211 of the Act. Subsection (k) prohibits
the sale of gasoline that EPA has not certified as reformulated
(``conventional gasoline'') in the nine worst ozone nonattainment areas
beginning January 1, 1995. Section 211(k)(10)(D) defines the areas
covered by the reformulated gasoline (RFG) program as the nine ozone
nonattainment areas having a 1980 population in excess of 250,000 and
having the highest ozone design values during the period 1987 though
1989.1 Under section 211(k)(10)(D), any area reclassified as a
severe ozone nonattainment area under section 181(b) is also to be
included in the RFG program. EPA published final regulations for the
RFG program on February 16, 1994. See 59 FR 7716.
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\1\ Applying these criteria, EPA has determined the nine covered
areas to be the metropolitan areas including Los Angeles, Houston,
New York City, Baltimore, Chicago, San Diego, Philadelphia, Hartford
and Milwaukee.
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Any other ozone nonattainment area classified as Marginal,
Moderate, Serious, or Severe may be included in the program at the
request of the Governor of the state in which the area is located.
Section 211(k)(6)(A) provides that upon the application of a Governor,
EPA shall apply the prohibition against selling conventional gasoline
in any area requested by the Governor which has been classified under
subpart 2 of Part D of Title I of the act as a Marginal, Moderate,
Serious or Severe ozone nonattainment area. Subparagraph 211(k)(6)(A)
further provides that EPA is to apply the prohibition as of the date
the Administrator ``deems appropriate, not later than January 1, 1995,
or 1 year after such application is received, whichever is later.'' In
some cases the effective date may be extended for such an area as
provided in section 211(k)(6)(B) based on a determination by EPA that
there is ``insufficient domestic capacity to produce'' RFG. Finally,
EPA is to publish a governor's application in the Federal Register.
II. The Governor's Request
EPA received an application from the Honorable Fife Symington,
Governor of the State of Arizona, for the Phoenix moderate ozone
nonattainment area to be included in the reformulated gasoline program.
The Governor's letter is set out in full below.
January 17, 1997.
Ms. Carol Browner, Administrator, U.S. Environmental Protection
Agency, 401 M. Street, S.W. (1101), Washington, D.C. 20460.
Dear Ms. Browner: The purpose of this letter is to request,
under Sec. 211(k)(6) of the Clean Air Act and 40 CFR 81.303, that
the U.S. E.P.A. extend the requirement for reformulated gasoline
(RFG) to the Phoenix Ozone Nonattainment Area beginning June 1,
1997. This ``opt-in'' request is made in accordance with the
guidance provided by your agency in letters to me of December 31,
1996 and January 13, 1997.
Furthermore, I am requesting waivers related to summertime Reid
Vapor Pressure (RVP) and wintertime oxygenated fuels:
--From June 1 through September 30 of each year, that the current
State standard of 7.0 pounds per square inch (psi) RVP be enforced
in the Phoenix Ozone Nonattainment Area; and
--That the U.S.E.P.A. preserve existing State standards for
oxygenated gasoline blends.
These unique gasoline standards were submitted by Arizona in the
1993 ozone and carbon monoxide State Implementation Plan revisions
required under the Clean Air Act, but no action was taken on our
waiver request. I urge EPA to expeditiously approve these waivers in
accordance with section 211(c)(4)(C) of the Act.
As you know, Arizona has made a good faith effort to implement
its ozone nonattainment plan in compliance with all of the
requirements of the Clean Air Act. Regardless, a significant
proportion of the emissions reductions included in this plan were
not realized due to the difficulties the State has experienced in
attempting to fully implement the federal enhanced vehicular
inspection and maintenance program. This problem, and continued
violations of the ozone standard in Maricopa County have motivated
the State to voluntarily develop and submit an ozone plan, which
will include a variety of enforceable control programs designed to
reduce pollution and bring about attainment of the ozone standard by
1999. Reformulated gasoline is critical to the success of this plan,
and will probably provide the largest pollution reduction of any
single control program contemplated in this plan.
The State will continue to evaluate gasoline formulations and
other strategies for reducing ozone, carbon monoxide and particulate
pollution, and may determine that another gasoline formulation
provides equivalent or better emissions reductions, and is more
cost-effective or represents a better overall solution to our
pollution problems in the long term. In such case, the State will
submit a complete opt-out request by December 31, 1997, or take
other appropriate action, as described in the December 31, 1996 and
January 13, 1997 letters previously mentioned.
I appreciate the prompt assistance that your Region IX staff
provided on this issue. Thank you for your attention to this matter.
Sincerely,
Fife Symington,
Governor.
FS:sae
cc: Felicia Marcus, EPA, Region IX, Russell F. Rhoades, Arizona
Department of Environmental Quality, John Hays, Arizona Department
of Weights and Measures
III. Action
Pursuant to the governor's letter and the provisions of section
211(k)(6), EPA will apply the prohibitions of subsection (211)(k)(5) to
the Phoenix, Arizona moderate ozone nonattainment area as of the
effective date of this rule, or June 1, 1997 whichever is later, for
all persons other than retailers and wholesale purchaser-consumers.
This date applies to the refinery level and all other points in the
distribution system other than the retail level. For retailers and
wholesale purchaser-consumers, the prohibitions of subsection
(211)(k)(5) will apply 30 days after the effective date of this rule,
or July 1, 1997, whichever is later. As of the implementation date for
retailers and wholesale purchaser-consumers, this area will be treated
as a covered area for all purposes of the federal RFG program.
The application of the prohibition of section 211(k)(5) to the
Phoenix
[[Page 7166]]
moderate ozone nonattainment area could take effect no later than
January 17, 1998 under section 211(k)(6)(A), which stipulates that the
effective program date must be no ``later than January 1, 1995 or 1
year after [the Governor's] application is received, whichever is
later.'' For the Phoenix nonattainment area, EPA could establish an
effective date for the start of the RFG program anytime up to this
date. EPA considers that January 17, 1998, would be the latest possible
effective date, since EPA expects there to be sufficient domestic
capacity to produce RFG and therefore has no current reason to extend
the effective date beyond one year after January 17, 1998. EPA believes
that there is adequate domestic capability to support the current
demand for RFG nationwide as well as the addition of the Phoenix area.
Like the federal volatility program, the RFG program includes
seasonal requirements. Summertime RFG must meet certain VOC control
requirements to reduce emissions of VOCs, an ozone precursor. Under the
RFG program, there are two compliance dates for VOC-controlled RFG. At
the refinery level, and all other points in the distribution system
other than the retail level, compliance with RFG VOC-control
requirements is required from May 1 to September 15. At the retail
level (service stations and wholesale purchaser-consumers), compliance
is required from June 1 to September 15. See 40 CFR 80.78(a)(1)(v).
Pipeline requirements and demands for RFG from the supply industry
drive refineries to establish their own internal compliance date
earlier than May so that they can assure that terminals are capable of
meeting the requirements by the May 1 date. Based on past success with
this implementation strategy, EPA is staggering the implementation
dates for the Phoenix opt-in to the RFG program.
The Governor's request seeks an implementation date of June 1, 1997
for the RFG program in the Phoenix area. However, pursuant to its
discretion to set an effective date under Sec. 211(k)(6), EPA is
establishing two implementation dates. For all persons other than
retailers and wholesale purchaser-consumers (i.e., refiners, importers,
and distributors), implementation shall take effect on the effective
date of this rule, or June 1, 1997, whichever is later. For retailers
and wholesale purchaser-consumers, implementation shall take effect 30
days after the effective date of this rule or July 1, 1997, whichever
is later. EPA believes these implementation dates achieve a reasonable
balance between requiring the earliest possible start date and
providing adequate lead time for industry to prepare for program
implementation. These dates are consistent with the state's request
that EPA require that the RFG program begin in the Phoenix area as
early as possible in the high ozone season, which begins June 1. These
dates provide environmental benefits by allowing Phoenix to achieve VOC
reduction benefits for some of the 1997 VOC-controlled season. EPA
believes these dates provide adequate lead time for the distribution
industry to set up storage and sales agreements to ensure supply.
IV. Public Participation and Effective Date
The Agency is publishing this action both as a proposed rulemaking
and as a direct final rule because it views setting the effective date
for the addition of the Phoenix ozone nonattainment area to the federal
RFG program as non-controversial and anticipates no adverse or critical
comments. This action will be effective April 4, 1997 unless the Agency
receives notice by March 20, 1997 that adverse or critical comments
will be submitted, or that a party requests the opportunity to submit
such oral comments pursuant to section 307(d)(5) of the Act, as
amended. If such notice is received by the Agency, EPA will withdraw
this direct final rule and a timely notice will be published in the
Federal Register to indicate the withdrawal.
The Governor of Arizona established in May 1996 an Air Quality
Strategies Task Force to develop a report describing long- and short-
term strategies that would contribute to attainment of the federal
national ambient air quality standards for ozone, carbon monoxide and
particulates. In July 1996, this task force recommended establishment
of a Fuels Subcommittee to evaluate potential short-term and long-term
fuels options for the Phoenix ozone nonattainment area. The Fuels
Subcommittee was composed of representatives of a diverse mixture of
interests including gasoline-related industries, public health
organizations, and both in-county and out-of-county interests. Several
members of the refining industry supported the opt into the federal RFG
program for Phoenix for the onset of the 1997 VOC control season. The
subcommittee submitted its final report to the Air Quality Strategies
Task Force on November 26, 1996.
Section 211(k)(6) states that, ``[u]pon the application of the
Governor of a State, the Administrator shall apply the prohibition''
against the sale of conventional gasoline in any area of the State
classified as Marginal, Moderate, Serious, or Severe for ozone.
Although section 211(k)(6) provides EPA discretion to establish the
effective date for this prohibition to apply to such areas, and allows
EPA to consider whether there is sufficient domestic capacity to
produce RFG in establishing the effective date, EPA does not have
discretion to deny a Governor's request. Therefore, the scope of this
action is limited to setting an effective date for Phoenix's opt-in to
the RFG program, and not to decide whether Phoenix should in fact opt
in. For this reason, EPA is only soliciting comments addressing the
implementation date and is not soliciting comments that either support
or oppose Phoenix participating in the program.
V. Environmental Impact
The federal RFG program provides reductions in ozone-forming VOC
emissions, oxides of nitrogen (NOX), and air toxics. Reductions in
VOCs are environmentally significant because of the associated
reductions in ozone formation and in secondary formation of particulate
matter, with the associated improvements in human health and welfare.
Exposure to ground-level ozone (or smog) can cause respiratory
problems, chest pain, and coughing and may worsen bronchitis,
emphysema, and asthma. Animal studies suggest that long-term exposure
(months to years) to ozone can damage lung tissue and may lead to
chronic respiratory illness. Reductions in emissions of toxic air
pollutants are environmentally important because they carry significant
benefits for human health and welfare primarily by reducing the number
of cancer cases each year.
The Arizona Governor's Task Force estimates that if federal RFG is
required to be sold in Phoenix, VOC emissions will be be cut by more
than nine tons/day. In addition, all vehicles would have improved
emissions and the area would also get reductions in toxic emissions.
VI. Statutory Authority
The Statutory authority for the action proposed today is granted to
EPA by sections 211(c) and (k) and 301 of the Clean Air Act, as
amended; 42 U.S.C. 7545(c) and (k) and 7601.
VII. Regulatory Flexibility
For the following reasons, EPA has determined that it is not
necessary to prepare a regulatory flexibility analysis in connection
with this final rule. EPA has also determined that this rule will not
have a significant economic impact on a substantial number of small
[[Page 7167]]
entities. In promulgating the RFG and anti-dumping regulations, the
Agency analyzed the impact of the regulations on small businesses. The
Agency concluded that the regulations may possibly have some economic
effect on a substantial number of small refiners, but that the
regulations may not significantly affect other small entities, such as
gasoline blenders, terminal operators, service stations and ethanol
blenders. See 59 FR 7810-7811 (February 16, 1994). As stated in the
preamble to the final RFG/anti-dumping rule, exempting small refiners
from the RFG regulations would result in the failure of meeting CAA
standards. 59 FR 7810. However, since most small refiners are located
in the mountain states or in California, which has its own RFG program,
the vast majority of small refiners are unaffected by the federal RFG
requirements (although all refiners of conventional gasoline are
subject to the anti-dumping requirements). Moreover, all businesses,
large and small, maintain the option to produce conventional gasoline
to be sold in areas not obligated by the Act to receive RFG or those
areas which have not chosen to opt into the RFG program. A complete
analysis of the effect of the RFG/anti-dumping regulations on small
businesses is contained in the Regulatory Flexibility Analysis which
was prepared for the RFG and anti-dumping rulemaking, and can be found
in the docket for that rulemaking. The docket number is: EPA Air Docket
A-92-12.
Today's rule will affect only those refiners, importers or blenders
of gasoline that choose to produce or import RFG for sale in the
Phoenix ozone nonattainment area, and gasoline distributors and retail
stations in those areas. As discussed above, EPA determined that,
because of their location, the vast majority of small refiners would be
unaffected by the RFG requirements. For the same reason, most small
refiners will be unaffected by today's action. Other small entities,
such as gasoline distributors and retail stations located in Phoenix,
which will become a covered area as a result of today's action, will be
subject to the same requirements as those small entities which are
located in current RFG covered areas. The Agency did not find the RFG
regulations to significantly affect these entities.
VIII. Executive Order 12866
Under Executive Order 12866,2 the Agency must determine
whether a regulation is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
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\2\ See 58 FR 51735 (October 4, 1993).
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(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments of communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof, or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.3
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\3\ Id. at section 3(f)(1)-(4).
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It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
IX. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``UMRA''), Public Law 104-4, EPA must prepare a budgetary impact
statement to accompany any general notice of proposed rulemaking or
final rule that includes a Federal mandate which 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, for any rule subject to Section 202 EPA
generally must select the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Under Section 203, before
establishing any regulatory requirements that may significantly or
uniquely affect small governments, EPA must take steps to inform and
advise small governments of the requirements and enable them to provide
input.
EPA has determined that today's rule does not trigger the
requirements of UMRA. The rule does not include a Federal mandate that
may result in estimated annual costs to State, local or tribal
governments in the aggregate, or to the private sector, of $100 million
or more, and it does not establish regulatory requirements that may
significantly or uniquely affect small governments.
X. Submission to Congress
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution.
Dated: February 7, 1997.
Carol M. Browner,
Administrator.
40 CFR part 80 is amended as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
1. The authority citation for part 80 is revised to read as
follows:
Authority: Secs. 114, 211, and 301(a) of the Clean Air Act, as
amended (42 U.S.C. 7414, 7545 and 7601(a)).
2. Section 80.70 is amended by adding paragraph (m) to read as
follows:
Sec. 80.70 Covered areas.
* * * * *
(m) The prohibitions of section 211(k)(5) will apply to all persons
other than retailers and wholesale purchaser-consumers June 1, 1997.
The prohibitions of section 211(k)(5) will apply to retailers and
wholesale purchaser-consumers July 1, 1997. As of the effective date
for retailers and wholesale purchaser-consumers, the Phoenix, Arizona
ozone nonattainment area is a covered area. The geographical extent of
the covered area listed in this paragraph shall be the nonattainment
boundaries for the Phoenix ozone nonattainment area as specified in 40
CFR 81.303.
[FR Doc. 97-3926 Filed 2-14-97; 8:45 am]
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