Extension of Stay of the Reformulated Gasoline Program: Nine
Counties in New York, Twenty-Eight Counties in Pennsylvania, and Two
Counties in Maine
[Federal Register: July 10, 1995 (Volume 60, Number 131)]
[Rules and Regulations]
[Page 35488-35492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5255-8]
Extension of Stay of the Reformulated Gasoline Program: Nine
Counties in New York, Twenty-Eight Counties in Pennsylvania, and Two
Counties in Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: In today's action, EPA is extending the previous temporary
stay of the reformulated gasoline program requirements in nine opt-in
counties in New York, in twenty-eight opt-in counties in Pennsylvania
and in two opt-in counties in Maine. In a separate action published
June 14, 1995, EPA proposed to approve the requests for opt-out for
these specified counties from the States of New York, Pennsylvania, and
Maine. Today's action stays the applicability of the RFG requirements
for these areas effective from July 1, 1995, until the agency has
completed rulemaking on the proposed opt-out for these areas. Although
EPA believes that the RFG program provides a highly cost-effective
means of reducing ground-level ozone and toxic vehicle emissions, the
Agency believes that states should be given the flexibility to choose
which programs best meet each state's needs for emissions reductions.
[[Page 35489]]
EFFECTIVE DATE: June 30, 1995.
ADDRESSES: Materials relevant to this notice have been placed in Docket
A-94-68. The docket is located at the Air Docket Section (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
a.m. to 5:30 p.m. A reasonable fee may be charged for copying docket
material.
FOR FURTHER INFORMATION CONTACT: Mr. Mark Coryell, U.S. Environmental
Protection Agency, Office of Air and Radiation, 401 M Street SW.
(6406J), Washington, DC 20460, (202) 233-9014.
SUPPLEMENTARY INFORMATION: A copy of this action is available on the
OAQPS Technology Transfer Network Bulletin Board System (TTNBBS). 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 titles:
XTNDSTAY.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 software should then be opened and directed to receive
the file using the same protocol. Programs and instructions for dearchiving
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.
I. Background
A. General Background on Reformulated Gasoline Program and Opt-In
Process
The reformulated gasoline program is designed to reduce ozone
levels in the largest metropolitan areas of the U.S. with the worst
ground-level ozone problems by reducing vehicle emissions of the ozone
precursors, specifically volatile organic compounds (VOC), through fuel
reformulation. Reformulated gasoline also achieves a significant
reduction in air toxics. In Phase II of the program, oxides of nitrogen
(NOX), another precursor of ozone, are reduced. The 1990
amendments of the Clean Air Act require reformulated gasoline in the
nine cities with the highest levels of ozone. Congress also provided
the opportunity for states to choose to opt into the RFG program for
their other nonattainment areas. EPA issued final rules establishing
requirements for RFG on December 15, 1993 (59 FR 7716, February 16,
1994).
The regulation issued in December of 1993 did not include
procedures for opting out of the RFG program, because EPA had not
proposed and was not ready to adopt such procedures at that time.
However, the Agency did indicate that it intended to propose such
procedures in a separate rule.
B. Jefferson County, New York
Jefferson County was included as a covered area in EPA's
reformulated gasoline program based on Governor Mario Cuomo's request
of October 28, 1991, that this county be included under the Act's optin
provision for ozone nonattainment areas (57 FR 7926, March 5, 1992).
See 40 CFR 80.70(j)(10)(vi). On November 29, 1994, EPA received a
petition from the Commissioner of New York's Department of
Environmental Conservation, Mr. Langdon Marsh, to remove Jefferson
County, New York, from the list of areas covered by the requirements of
the reformulated gasoline program. EPA understands that Commissioner
Marsh is acting for Governor Cuomo on this matter. The Administrator
responded to the State's request in a letter to Commissioner Marsh
dated December 12, 1994, stating EPA's intention to grant New York's
request as of January 1, 1995, and to conduct rulemaking to implement
the opt-out. On December 29, 1994, EPA issued a final rule staying the
application of the reformulated gasoline program requirements in
Jefferson County from January 1, 1995 until July 1, 1995 (60 FR 2696,
January 11, 1995). This decision was based on the particular
circumstances that apply in Jefferson County. On June 14, 1995, EPA
published a notice of proposed rulemaking proposing to remove Jefferson
County from the areas covered by the reformulated gasoline program (60
FR 31269, June 14, 1995). In the same notice, EPA also proposed to
extend the stay of the reformulated gasoline program for this area
until the agency completes rulemaking on the proposed opt-out.
C. The Buffalo and Albany Areas of New York
The Buffalo and Albany ozone nonattainment areas were included as
covered areas in EPA's reformulated gasoline program based on Governor
Mario Cuomo's request of October 28, 1991, that this county be included
under the Act's opt-in provision for ozone nonattainment areas (57 FR
7926, March 5, 1992). See 40 CFR 80.70(j)(10) (i), (iii), (v), and
(vii) through (xi). On December 23, 1994, Commissioner Marsh of New
York's Department of Environmental Conservation wrote to request optout
of the Albany and Buffalo ozone nonattainment areas which include
the counties of Albany, Greene, Montgomery, Rensselaer, Saratoga,
Schenectady, Erie and Niagara. The Assistant Administrator for Air and
Radiation, Mary Nichols, responded to the state's request in a letter
to Commissioner Marsh dated December 28, 1994, stating EPA's intention
to grant New York's request as of January 1, 1995, and to conduct
rulemaking to implement the opt-out. On December 29, 1995, EPA issued a
final rule staying the application of the reformulated gasoline program
requirements in these New York counties from January 1, 1995 until July
1, 1995 (60 FR 2696, January 11, 1995). This decision was based on the
particular circumstances that apply in these counties. On June 14,
1995, EPA published a notice of proposed rulemaking proposing to remove
these New York counties from the areas covered by the reformulated
gasoline program (60 FR 31269, June 14, 1995). In the same notice, EPA
also proposed to extend the stay of the reformulated gasoline program
in these counties until the agency completes rulemaking on the proposed
opt-out.
D. Pennsylvania Counties
Twenty-eight counties in Pennsylvania were included as covered
areas in EPA's reformulated gasoline program based on Governor Robert
P. Casey's request dated September 25, 1991 (56 FR 57986, November 15,
1991).
[[Page 35490]]
See 40 CFR 80.70(j)(11) (i) through (xxviii). The counties referred to
are the following: Adams, Allegheny, Armstrong, Beaver, Berks, Blair,
Butler, Cambria, Carbon, Columbia, Cumberland, Dauphin, Erie, Fayette,
Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Mercer, Monroe,
Somerset, Northhampton, Perry, Washington, Westmoreland, Wyoming and
York. On December 1, 1994, EPA received a petition from Governor Casey
to remove these twenty-eight counties from the reformulated gasoline
program. The Administrator responded to the State's request in a letter
to Governor Casey dated December 12, 1994. In this letter, the
Administrator indicated that effective January 1, 1995, and until the
formal rulemaking to remove the twenty-eight counties from the list of
covered areas is completed, EPA would not enforce the reformulated
gasoline requirements in these twenty-eight counties. On December 29,
1994, EPA issued a final rule staying the application of the
reformulated gasoline program requirements in these Pennsylvania
counties from January 1, 1995 until July 1, 1995 (60 FR 2696, January
11, 1995). This decision was based on the particular circumstances that
apply in these twenty-eight counties. On June 14, 1995, EPA published a
notice of proposed rulemaking proposing to remove these twenty-eight
counties from the areas covered by the reformulated gasoline program
(60 FR 31269, June 14, 1995). In the same notice, EPA also proposed to
extend the stay of the reformulated gasoline program in these counties
until the agency completes rulemaking on the proposed opt-out.
E. Hancock and Waldo Counties in Maine
Hancock and Waldo Counties were included as a covered areas in
EPA's reformulated gasoline program based on Governor John R.
McKernan's request of June 26, 1991, that these counties be included
under the Act's opt-in provision for ozone nonattainment areas (56 FR
46119, September 10, 1991). See 40 CFR 80.70(j)(5) (viii) and (ix). On
December 27, 1994, EPA received a petition from the Acting Commissioner
of Maine's Department of Environmental Protection, Ms. Deborah Garrett,
to remove Hancock and Waldo Counties in Maine from the list of areas
covered by the requirements of the reformulated gasoline program. EPA
understands that Commissioner Garrett is acting for Governor McKernan
in this matter. The Assistant Administrator for Air and Radiation, Mary
Nichols, responded to the state's request in a letter to Commissioner
Garrett, dated December 27, 1994, stating EPA's intention to grant
Maine's request, and conduct rulemaking to implement the opt-out. On
December 29, 1994, EPA issued a final rule staying the application of
the reformulated gasoline program requirements in these Maine counties
from January 1, 1995 until July 1, 1995 (60 FR 2696, January 11, 1995).
This decision was based on the particular circumstances that apply in
these two counties. On June 14, 1995, EPA published a notice of
proposed rulemaking proposing to remove Hancock and Waldo Counties from
the areas covered by the reformulated gasoline program (60 FR 31269,
June 14, 1995). In the same notice, EPA also proposed to extend the
stay of the reformulated gasoline program in these counties until the
agency completes rulemaking on the proposed opt-out.
II. Extension of Stay Removing the Nine New York Counties, the TwentyEight
Counties in Pennsylvania, and Two Counties in Maine From the List
of Areas Covered by the Reformulated Gasoline Requirements as of July
1, 1995
On December 29, 1994, EPA issued a final rule staying the
application of the reformulated gasoline regulations for certain areas
that had opted in to the reformulated gasoline program. 60 FR 2696
(January 11, 1995). This stay applied to Jefferson County and the
Albany and Buffalo nonattainment areas of New York, the twenty-eight
opt-in counties in Pennsylvania, and Hancock and Waldo Counties in
Maine. It stayed the regulations in these areas effective January 1,
1995 until July 1, 1995.
EPA believes that the Act authorizes states to opt out of the
reformulated gasoline program. EPA has proposed and, absent new
information indicating otherwise, believes it will be appropriate to
grant the requests by the governors considering the lack of adverse air
quality impacts,<SUP>1 the requests by the governors, the lack of
reliance on reformulated gasoline in the states' State Implementation
Plans, and the reasonable lead time provided to industry. In light of
the current rulemaking on the opt-out requests for these areas and the
lack of any adverse environmental effects, the likelihood the
rulemaking will conclude in the opt-out of these areas, and the severe
disruption in starting the reformulated gasoline program in these areas
on short notice, EPA finds it would be inappropriate to impose the
reformulated gasoline program requirements in these areas during the
short time needed to complete opt-out rulemaking.
\1\ Several of the areas have requests pending before the agency
for redesignation to attainment status. The other areas are expected
to submit such requests.
EPA is extending the stay to avoid the serious disruption to the
gasoline distribution system, the regulated industry, and the public,
which would be caused by a temporary imposition of the reformulated
gasoline requirements in these areas. It is necessary that all parties
involved have the certainty and stability needed for successful
implementation. EPA believes that these circumstances warrant an
extension of the previous stay of the reformulated gasoline
requirements in these areas until EPA takes final action on the
proposed opt-outs. That will provide adequate time to complete
rulemaking and take final action on these opt-out requests.
III. Response to Comments
A comment period was set for the period of June 14 through June 28,
1995. During that period two comments were received.
One commenter representing fuel oxygenate producers objects to
EPA's proposed extension of the stay, arguing that EPA does not have
authority under section 211(k) of the Act to stay the effective date of
these opt-in areas. According to this commenter, section 211(k)(6)(A)
provides only limited discretion in establishing the effective date for
an opt-in, and any additional extension of this effective date must
meet the requirements of section 211(k)(6)(B). That provision
authorizes an extension of the effective date set under section
211(k)(6)(A) for up to two years, if after consultation with the
Department of Energy, EPA determines that there is insufficient
domestic capacity to produce reformulated gasoline. In addition, EPA
must issue an extension for areas with lower ozone classifications
before higher ones. Not having met these requirements, the commenter
argues that the extension is not authorized under section 211(k)(6) (A)
or (B). The commenter also believes that EPA's reliance on Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984) is misplaced, and that section 211(k) does not otherwise
authorize the proposed stay.
This commenter has misinterpreted EPA's view on statutory
authority. The temporary stay issued in December 1994 and the stay
proposed in June 1995 are not extensions of the effective date under
section 211(k)(6) (A) or (B). Those provisions basically address when
the program will first go into effect for an
[[Page 35491]]
opt-in area. They do not address whether and when an area may opt-out
of the program.
As noted in the proposal, EPA believes that it has authority to
allow an area to opt out after it has opted in, under reasonable
conditions related to a state's air quality planning and the need for
reasonable lead time for affected industries. This is a reasonable
interpretation of EPA's authority, based on the delegation by Congress
of rulemaking authority in sections 211(k)(1) and 301(a). This includes
the authority to allow an area to permanently opt out of the
reformulated gasoline program. The stay issued in this final rule is a
much more limited exercise of this authority--it allows an area to be
excluded from the reformulated gasoline program for a limited time
period, pending the rulemaking needed to finally act on the opt-out
request.
EPA proposed to allow these areas to opt-out, and explained the
legal, factual, and policy reasons supporting its proposal. Given the
clear possibility that EPA will exclude these areas from the
reformulated gasoline program based on their opt-out requests, it would
be a serious and needless disruption of the gasoline market and the
reformulated gasoline program to now implement the prohibition of
section 211(k)(5) and require the regulated parties to market
reformulated gasoline for the short period of time needed to act on
this proposal. Under these circumstances, temporarily excluding them
from the program pending action on the proposal is a limited and proper
exercise of EPA's authority to allow an area to opt-out of the program
indefinitely.
One commenter representing the petroleum industry strongly supports
the stay extension. This commenter believes that it would not be in the
public's interest to introduce the reformulated gasoline program on
short notice. Considering that EPA has proposed to approve the opt-out
requests of New York, Pennsylvania, and Maine, the commenter believes a
temporary reformulated gasoline program in these counties for a few
months would not be warranted.
IV. Effective Date
Based on the July 1, 1995, expiration of the prior stay, and the
disruption that would be caused if the reformulated gasoline program
was reinstituted in these areas for a short time, EPA finds there is
good cause to make this rule effective upon signature. 5 U.S.C. 553(d).
This rule is effective on June 30, 1995.
V. Environmental Impact
The stay is not expected to have any adverse environmental effects.
The reformulated gasoline program is currently not applicable to these
areas and the stay continues the status quo in these areas during
rulemaking.
VI. Economic Impact
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. This stay is not expected to result in any additional
compliance cost to regulated parties and, in fact, is expected to
decrease compliance costs to the industry and decrease costs to
consumers in the affected areas.
VII. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993) 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:
(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 or
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
the Executive Order.
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.
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., EPA must
obtain Office of Management and Budget (OMB) clearance for any activity
that will involve collecting substantially the same information from 10
or more non-Federal respondents. This rule does not create any new
information requirements or contain any new information collection
activities.
VIII. Unfunded Mandates Act
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. 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 stay promulgated today 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 extends a stay on the application of the
reformulated gasoline program in certain areas, pending agency
rulemaking on the opt-out requests for these areas. The stay imposes no
new Federal requirements, and in fact relieves an otherwise applicable
requirement. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
IX. Statutory Authority
The statutory authority for the action in this rule is granted to
EPA by section 211 (c) and (k), and section 301(a) of the Clean Air Act
as amended, 42 U.S.C. 7545 (c) and (k) and 7601(a).
List of Subjects in 40 CFR Part 80
Environmental protection, Air pollution control, Fuel additives,
Gasoline, Motor vehicle pollution.
Dated: June 30, 1995.
Fred Hansen,
Acting Administrator.
For the reasons set out in the preamble, 40 CFR part 80 is amended
as follows:
PART 80--REGULATION OF FUELS AND FUEL ADDITIVES
The authority citation for part 80 continues to read as follows:
Authority: Sections 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 revising the introductory text of
paragraph (j) to read as follows:
Sec. 80.70 Covered areas.
* * * *
[[Page 35492]]
(j) The ozone nonattainment areas listed in this paragraph (j) are
covered areas beginning on January 1, 1995, except that those areas
listed in paragraphs (j)(5) (viii) and (ix), (j)(10) (i), (iii), and
(v) through (xi) and (j)(11) of this section shall not be covered areas
prior to EPA taking final action on the proposal to remove these areas
as covered areas.
* * * *
[FR Doc. 95-16825 Filed 7-7-95; 8:45 am]
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