Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to Moderate Ozone Nonattainment Areas in
Wisconsin
[Federal Register: January 11, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-5134-5]
Regulation of Fuels and Fuel Additives: Extension of the
Reformulated Gasoline Program to Moderate Ozone Nonattainment Areas in
Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
SUMMARY: Under section 211(k)(6) of the Clean Air Act, as amended
(Act), the Administrator of EPA shall apply the prohibition against the
sale of gasoline that has not been controlled under EPA's reformulated
gasoline (RFG) regulations in an ozone nonattainment area 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) of the Act to three moderate ozone non-attainment
areas in Wisconsin, including those counties in the federal RFG
program. In Phase I beginning on January 1, 1995, reformulated gasoline
will achieve a 15 to 17 percent reduction in both ozone-forming
volatile organic compound (VOC) emissions and toxics emissions from
motor vehicles. In Phase II beginning on January 1, 2000, the program
will achieve a 25 to 29 percent VOC reduction, a 20 to 22 percent
reduction in toxics emissions, and a 5 to 7 percent nitrogen oxide
(NOX) reduction.
EFFECTIVE DATES: This action will be effective on March 13, 1995 unless
notice is received by February 10, 1995 that adverse or critical
comments will be submitted or that an opportunity to submit such
comments at a public hearing is requested.
If such comments or a request for a public hearing are received by
the Agency, then EPA will publish a subsequent Federal Register notice
withdrawing this action and will issue a notice of proposed rulemaking.
ADDRESSES: Interested parties may submit written comments (in
duplicate, if possible) to Public Docket No. A-94-46, at Air Docket
Section, U.S. Environmental Protection Agency, Waterside Mall, Room M-
1500, 401 M Street SW., Washington, DC 20460. The Agency requests that
commenters also send a copy of any comments to Joann Jackson Stephens
at U.S. EPA (RDSD-12), Regulation Development and Support Division,
2565 Plymouth Road, Ann Arbor, MI 48105.
Other materials relevant to the RFG rulemaking, and hence today's
action, are contained in Public Docket Nos. A-91-02, A-92-12, A-93-49,
and A-94-30. These dockets are also located in Waterside Mall at the
above listed address. The dockets may be inspected from 8:00 a.m. until
4:00 p.m. Monday through Friday. A reasonable fee may be charged by EPA
for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Joann Jackson Stephens, Telephone:
(313) 668-4276.
To request copies of this action contact Delores Frank, U.S. EPA
(RDSD-12), Regulation Development and Support Division, 2565 Plymouth
Road, Ann Arbor, MI 48105. Telephone: (313) 668-4295.
SUPPLEMENTARY INFORMATION: A copy of this action is available on the
EPA's Office of Air Quality Planning and Standards (OAQPS) Technology
Transfer Network Bulletin Board System (TTNBBS). The service is free of
charge, except for the cost of the phone call. The TTNBBS can be
accessed with a dial-in phone line and a high-speed modem per the
following information:
TTN BBS: 919-541-5742
(1200-14400 bps, no parity, 8 data bits, 1 stop bit),
Voice Help-line: 919-541-5384,
Accessible via Internet: TELNETttnbbs.rtpnc.epa.gov,
Off-line: Mondays from 8:00 AM to 12:00 Noon ET
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:
<T> GATEWAY TO TTN TECHNICAL AREAS (Bulletin Boards)
<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 RFG
rulemaking process. To download any 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
[[Page 2694]]
<S>ystems Utilities from the top menu, under <A>rchivers/de-archivers.
After getting the files you want onto your computer, you can quit the
TTN BBS with the <G>oodbye command. 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
As part of the Clean Air Act Amendments of 1990, Congress added a
new subsection (k) to section 211 of the Clean Air Act. Subsection (k)
prohibits the sale of gasoline that EPA has not certified as
reformulated in the nine worst ozone nonattainment areas beginning
January 1, 1995. EPA published final regulations for the RFG program on
February 16, 1994 and on August 2, 1994. See 59 FR 7716 and 59 FR
39258. Corrections and clarifications to the final RFG regulations were
published July 20, 1994. See 59 FR 36944.
Section 211(k)(10)(D) defines the areas covered by the 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 through 1989. Applying those 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. 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.
Any other ozone nonattainment area 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 the retail sale of
conventional gasoline (gasoline EPA has not certified as reformulated)
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.\1\ Subparagraph
211(k)(6)(A) further provides that EPA is to apply the prohibition at
the retail level 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'' reformulated gasoline. Finally, EPA is to publish a
governor's application in the Federal Register. To date, EPA has
received and published applications from the Mayor of the District of
Columbia and the Governors of Connecticut, Delaware, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, Vermont, Virginia, Texas, and Kentucky. Although Vermont has
requested to opt-in to the program, states without ozone nonattainment
areas, such as Vermont, can not do so.
\1\EPA promulgated such designations pursuant to Section
107(d)(4) of the Act (56 FR 56694; November 6, 1991).
II. The Governor's Request
EPA received an application from the Honorable Tommy G. Thompson,
Governor of the state of Wisconsin, for three moderate ozone nonattainment
areas to be included in the RFG program. Governor Thompson
later clarified his request in reference to implementation dates with
the submission of a second letter of application. Both letters are set
out in full below.
A. Initial Letter From Wisconsin's Governor
[State of Wisconsin letterhead]
April 6, 1994.
Carol Browner,
USEPA Administrator,
USEPA Headquarters,
401 M Street, SW (101),
Washington, DC 20460
Dear Ms. Browner: The purpose of this letter is to request that
you extend the requirement for reformulated gasoline to the three
moderate ozone nonattainment areas in Wisconsin. As you know,
Section 211(k)(6) of the Clean Air Act gives the Governor the
authority to opt into the reformulated gasoline program for ozone
nonattainment areas that are not otherwise required to use
reformulated gasoline. I am exercising the opt-in provision of
Section 211(k)(6) for the three moderate ozone nonattainment areas
in Wisconsin; Kewaunee, Manitowoc and Sheboygan Counties.
Reformulated Gasoline is a significant component of our 15
percent VOC emission reduction plans for our moderate nonattainment
areas, supplying about \1/2\ of the necessary emission reductions.
After evaluating the public input to our 15 percent VOC plan, I am
convinced that reformulated gasoline is critical to the success of
the 15 percent plan in our moderate ozone nonattainment areas.
Thank you for considering my request. I am looking forward to
the successful implementation of our 15 percent emission reduction
plan and a good start to achieving our goals of attainment of the
ozone air quality standard in Eastern Wisconsin.
Sincerely,
Tommy G. Thompson,
Governor.
B. Second Letter From Wisconsin's Governor
[State of Wisconsin letterhead]
August 2, 1994.
Carol Browner,
USEPA Administrator,
USEPA Headquarters,
401 M Street, SW (101),
Washington, DC 20460
Dear Ms. Browner: In April of this year I requested that you
extend the federal reformulated gasoline program to the three
Wisconsin moderate ozone nonattainment counties of Sheboygan,
Manitowoc, and Kewaunee. Your staff subsequently notified the state
of the need to clarify the requested effective date for the program
within those counties. I understand the program in our six severe
ozone counties automatically commences January 1, 1995 based on
federal regulation.
Given the summer ozone air quality rationale of the program, I
request that the three county opt-in become effective for gasoline
blended to meet summer season requirements for 1995. Based on staff
meetings with the gasoline refining and wholesale/retail
distribution industry, I recommend a June 1, 1995 retail level
compliance date. The slight start-up delay for the moderate counties
will provide suppliers time to respond to the recently altered
market structure.
Thank you for your attention in this regard. I hope this overall
program will significantly affect air quality improvement in eastern
Wisconsin.
Sincerely,
Tommy G. Thompson,
Governor.
cc: Don Theiler, Air Management, WI-DNR,
Richard Rykowski, Motor Vehicle Emission Lab, USEPA, Ann Arbor, MI
48105
III. Action
Pursuant to the governor's letter and the provisions of section
211(k)(6), the prohibitions of subsection 211(k)(5) will be applied to
the Wisconsin moderate<SUP>2 ozone non-attainment areas of Kewaunee,
Manitowoc, and Sheboygan counties beginning June 1, 1995. As of that
date they will be treated as covered areas for all purposes of the
federal RFG program.
\2\See 56 FR 56764 (November 6, 1991); 57 FR 56762, 56778
(November 30, 1992); and 40 CFR 81.350.
The application of the prohibitions of Section 211(k)(5) to the
Wisconsin moderate ozone nonattainment areas at the retail level could
take effect no later than August 2, 1995 under section 211(k)(6)(A)
which stipulates that the effective program date must be no ``later
[[Page 2695]]
than January 1, 1995 or 1 year after such application is received,
whichever is later''. EPA considers the date of the second letter from
the Governor as the effective date of the application, as that letter
first expresses when Wisconsin would like the program to start and
clarifies the Governor's original letter. Additionally, EPA expects
there to be sufficient domestic supply of RFG and therefore has no
current reason to delay implementation of the program in Wisconsin
beyond August 2, 1995.For those nonattainment areas in Wisconsin,
EPA could establish the start of the RFG program at the retail level
anytime between January 1, 1995 and August 2, 1995. However, the Agency
believes that any effective date for the retail level prior to June 1,
1995 is inappropriate for the following reasons. First, an effective
date of January 1, 1995 for the RFG program in Wisconsin would not
provide sufficient notice to relevant parties. In addition,
implementation of the RFG program in Wisconsin later than January 1,
1995 but earlier than June 1, 1995 would require that winter RFG be
sold at the retail level for a brief period before summer VOC-control
requirements would become effective. As stated in the Governor's
letter, Wisconsin officials are primarily concerned with the benefits
derived from VOC-controlled RFG which is required June 1, 1995. Thus,
EPA believes that an effective date of June 1, 1995 is suitable for
Wisconsin since it is consistent with the beginning of the RFG summer
VOC control season and with the request in Governor Thompson's letter.
Requiring that the RFG program begin at the onset of the VOCcontrol
season, as requested by Governor Thompson, addresses concerns
raised by wholesale/retail distributors to Wisconsin officials
regarding the unwillingness of refiners which normally sell gasoline in
Wisconsin to supply RFG to a geographic area which is so small and that
is such a substantial distance from the nearest RFG market. Wisconsin
officials believe that the June 1 effective date will provide the
gasoline distribution industry with the necessary lead-time to
establish storage and cross sales agreements with refiners (other than
those which already market fuel in the area) willing to sell RFG in the
three county moderate ozone nonattainment area. Such storage and cross
sales agreements will facilitate the sale of reformulated gasoline,
which will aid Wisconsin in meeting its statutory 15 percent reduction
requirements. In addition, as expressed in the Governor's letter, the
main interest in opting into this program is based on a belief that the
state air quality would most benefit from the summer season
reformulated gasoline.
RFG VOC-control compliance at the terminal in Wisconsin should be
consistent with the final regulatory requirements for the RFG program.
Thus, compliance by parties upstream of retail outlets, in Wisconsin,
will be effective May 1, 1995. As in the federal volatility program,
such an effective date for upstream parties such as terminals is
necessary to ensure compliance at the retail level by requiring that
RFG be in the pipeline (upstream) prior to June.
IV. Public Participation and Effective Date
The Agency is publishing this action as a direct final rule because
it views the addition of the three ozone nonattainment areas in
Wisconsin to the RFG program as non-controversial and anticipates no
adverse or critical comments. Representatives from the state of
Wisconsin have met with refiners that supply the majority of the
state's fuel, including those refiners willing to supply RFG to the
moderate ozone nonattainment areas, and the parties apparently agree
that the on-set of the VOC-control season is an appropriate time to
begin implementation of the RFG program. Thus, interested parties
appear to agree on the June 1, 1995 date.
This action will be effective on March 13, 1995 unless the Agency
receives notice by February 10, 1995 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 Clean Air Act,
as amended. If such notice or comments are received regarding the
addition of the moderate ozone nonattainment areas in Wisconsin to the
RFG program, today's action will be withdrawn before the effective date
by the publication of a subsequent withdrawal notice in the Federal
Register. In the event that today's direct final rule is withdrawn as a
result of the submission of adverse or critical comments or a request
to present such comments at a public hearing, the Agency will issue a
notice of proposed rulemaking to extend the RFG program to the three
moderate ozone nonattainment counties in Wisconsin.
V. Statutory Authority
The statutory authority for the action finalized today is granted
to EPA by Sections 114, 211(c) and (k) and 301 of the Clean Air Act, as
amended; 42 U.S.C. 7414, 7545(c) and (k), and 7601.
VI. Administrative Designation
Pursuant to Executive Order 12866, [58 FR 51,735 (October 4, 1993)]
the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. Pursuant to the terms of Executive
Order 12866, it has been determined that this direct rule is not a
``significant regulatory action''.
VII. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) of 1980 requires federal
agencies to examine the effects of extending the RFG program to three
moderate ozone nonattainment areas in Wisconsin and to identify
significant adverse impacts of federal regulations on a substantial
number of small entities. Because the RFA does not provide concrete
definitions of ``small entity,'' ``significant impact,'' or
``substantial number,'' EPA has established guidelines setting the
standards to be used in evaluating impacts on small businesses. For
purposes of the RFG program, a small entity is any business which is
independently owned and operated and not dominant in its field as
defined by SBA regulations under section 3 of the Small Business Act.
The Agency believes that the extension of the RFG program to the
three ozone nonattainment areas in Wisconsin is unlikely to have a
significant economic impact on a substantial number of small entities.
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.
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline, Imports,
Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.
Dated: December 29, 1994.
Carol M. Browner,
Administrator.
40 CFR part 80 is amended by making the following revisions:
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)).
In Sec. 80.70, paragraphs (l) and (l)(1) are added to read as
follows:
[[Page 2696]]
Sec. 80.70 Covered areas.
* * * *
(l) The ozone nonattainment areas listed in this paragraph (l) are
covered areas beginning on May 1, 1995 at the terminal. No requirements
under subpart D shall apply to gasoline at a retail outlet or at the
facilities of a wholesale purchaser/consumer until June 1, 1995. The
geographic extent of each covered area listed in this paragraph (l)
shall be the nonattainment boundaries as specified in 40 CFR part 81,
subpart C:
(1) The following Wisconsin counties:
(i) Kewaunee;
(ii) Manitowoc;
(iii) Sheboygan.
(2) [Reserved]
[FR Doc. 95-420 Filed 1-10-95; 8:45 am]
BILLING CODE 6560-50-P
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