Temporary Administrative Stay of the Reformulated Gasoline
Program: Nine Counties in New York, Twenty-Eight Counties in
Pennsylvania, and Two Counties in Maine
[Federal Register: January 11, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5134-7]
Temporary Administrative 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.
ACTION: Final rule.
SUMMARY: In today's action, EPA is temporarily staying 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. Today's action stays the applicability of the RFG
requirements for these areas effective from January 1, 1995, until July
1, 1995. 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. In a separate notice of proposed rulemaking to be
published soon, EPA will propose to approve the requests for opt-out
for these specified counties from the States of New York, Pennsylvania,
and Maine. EPA will be unable to take final action on this proposed
rulemaking by January 1, 1995, the date when RFG requirements must be
met at the retail level. EPA believes a stay in the implementation of
the reformulated gasoline requirements in these areas effective January
1, 1995 and continuing until July 1, 1995, will avoid significant
disruption in the marketplace while notice and comment rulemaking
proceeds. This temporary stay is issued without prior notice and
comment, based on good cause described herein.
EFFECTIVE DATE: This rule is effective on December 29, 1994.
ADDRESSES: Materials relevant to this action 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
8:00 a.m. to 4:00 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:
STAY.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, nitrogen oxides
(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). During development
of the RFG rule, a number of states inquired as to whether they would
be permitted to opt out of the RFG program at a future date or to opt
out of certain of the requirements. This was based on their concern
that the air quality benefits of RFG, given their specific needs, might
not warrant the cost of the program, specifically focusing on the more
stringent standards in Phase II of the program (starting in 2000). Such
states wished to retain their ability to opt out of the program. Other
states indicated they viewed RFG as an interim strategy to help bring
their nonattainment areas into attainment sooner than would otherwise
be the case.
The regulation issued on 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 regulations 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)(vi). On November 29, 1994, EPA
received a petition from the Commissioner of New York's
[[Page 2697]]
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. The Administrator also announced
that effective January 1, 1995, and until the rulemaking to remove
Jefferson County from the list of covered areas is completed, EPA would
not enforce the reformulated gasoline requirements in Jefferson County.
This decision was based on the particular circumstances that apply in
Jefferson County.C. The Buffalo and Albany Areas of New York
On December 23, 1994, Commissioner Marsh of New York's Department
of Environmental Conservation wrote to request opt-out of the Albany
and Buffalo 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.
The December 28, letter also indicated EPA's intent to stay the RFG
requirements effective from January 1, 1995 until July 1, 1995, while
the Agency completes rulemaking to appropriately change the
regulations.
D. Pennsylvania Counties
Twenty-eight counties in Pennsylvania were included as covered
areas in EPA's reformulated gasoline regulations based on Governor
Robert P. Casey's request dated September 25, 1991 (56 FR 57986,
November 15, 1991). See 40 C.F.R. 80.70(j)(11) (i) through (xxviii).
The counties referred to are listed as follows: 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 list of areas covered by the requirements of the
reformulated gasoline program. Based on the state of Pennsylvania's
opt-out request of December 1, 1994, the EPA Administrator formally
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. This decision was based on the particular
circumstances that apply in these twenty-eight counties.
E. Hancock and Waldo Counties in Maine
Hancock and Waldo counties were included as a covered areas in
EPA's reformulated gasoline regulation 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. The
December 28 letter also indicated EPA's intent to stay the reformulated
gasoline requirements effective from January 1, 1995, until July 1,
1995, while the Agency completes rulemaking to appropriately change the
regulations.
II. EPA's Proposal To Grant New York's, Pennsylvania's, and Maine's
Request To Remove Selected Opt-In Areas From the Requirements of the
Reformulated Gasoline Program
EPA believes that it is reasonable to construe section 211(k) as
authorizing the Agency to establish procedures and requirements for
states to opt out of the reformulated gasoline program. This would only
apply to areas that have previously opted in under section 211(k)(6);
the mandatory covered areas would not be allowed to opt out of the
program.
In section 211(k)(6), Congress expressed its clear intention
regarding state opting in to this program. That paragraph establishes
that ``upon the application of the Governor of a State, the
Administrator shall apply the prohibition set forth in paragraph (5) in
any (ozone nonattainment) area in the State * * *. The Administrator
shall establish an effective date for such prohibition * * *.''\1\
However, with respect to opting out, ``the statute is silent or
ambiguous with respect to the specific issue'' and the question is
whether EPA's interpretation ``is based on a permissible construction
of the statute.'' Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 843 (1984). In addition, ``[i]f Congress
has explicitly left a gap for the Agency to fill, there is an express
delegation of authority to the Agency to elucidate a specific provision
of the statute by regulation.'' Id. at 843-44. If the delegation is
implicit, the Agency may adopt a reasonable interpretation of the
statute. Id. at 844.
\1\Paragraph 5 of section 211(k) prohibits the sale of
conventional, or non-reformulated gasoline, in covered areas.
Section 211(k)(1) provides that EPA is to promulgate ``regulations
establishing requirements for reformulated gasoline.'' This provision
therefore delegates to EPA the authority to define the requirements for
reformulated gasoline. Clean Air Act section 301(a)(1) also delegates
to EPA the general authority to promulgate ``such regulations as are
necessary'' for EPA to carry out its function under the Act. Given
these delegations of legislative rulemaking authority, EPA's
interpretation of section 211(k) with respect to opting out should be
upheld unless manifestly contrary to the Act. Chevron, 467 U.S. at 843-
44.
EPA believes that it is appropriate to interpret section 211(k) as
authorizing states to opt-out of this program, with the requirements
focusing on a reasonable transition out of the program.\2\ There are
really two aspects
[[Page 2698]]
to this, the first being whether states should be allowed to opt out at
all, the second being what conditions, if any, should be placed on
opting out. With respect to the former, a right to opt out is
consistent with the Act's recognition that states have the primary
responsibility to develop a mix of appropriate control strategies
needed to reach attainment with the NAAQS. While various mandatory
control strategies were established under the Clean Air Act, the Act
still evidences a clear commitment to allowing states the flexibility
to determine the appropriate mix of other measures needed to meet their
air pollution goals. Section 211(k)'s opt-in provision reflects this
deference to state choice, providing that opt-in will occur upon
application by the governor. The only discretion EPA retains regarding
opt-in is in setting or extending the effective date. Allowing states
the right to opt-out is a logical extension of these considerations of
deference to state decision making.\2\The preamble to the
December 15, 1993, final regulations failed to provide a clear
discussion of EPA's views on this issue. While EPA noted that it
``may pursue a separate action in the future that would allow states
to opt out of the RFG program, provided sufficient notice is
given,'' the preamble also indicated there were concerns over
whether EPA had authority to allow states to opt-out. 59 FR 7808
(February 16, 1994). The context for these statements, however,
makes it clear that EPA's concerns were based on issues surrounding
questions of opting-in for only Phase I of the reformulated gasoline
program. See 59 FR 7809. As noted above, EPA believes that it does
have authority to establish requirements that allow states to optout
of this program.
Given such deference, it follows that opting out should be
accomplished through application of the governor. It also follows that
the conditions on opting out should be geared towards achieving a
reasonable transition out of the reformulated gasoline program, as
compared to requiring a state to justify its decision. EPA has
identified two principal areas of concern in this regard. The first
involves coordination of air quality planning. For example,
reformulated gasoline in opt-in areas has been relied upon by several
states in their State Implementation Plan submissions or in their
redesignation requests. The second involves appropriate lead time for
industry to transition out of the program.
In a separate notice, to be published soon, EPA will be proposing
to revise its RFG regulations to remove the affected counties from the
program.
III. Temporary 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
January 1, 1995
Clean Air Act section 307(d)(1) requires EPA to follow specified
rulemaking procedures in promulgating regulations under section 211(h).
Section 307(d) provides, however, that notice and comment rulemaking
requirements ``shall not apply in the case of any rule or circumstance
referred to in subparagraph (A) or (B) of subsection 553(b) of title 5
of the United States Code [i.e. sections 553(b) (A) and (B) of the
APA].'' Under APA section 553(b)(B), notice and comment are not
required ``when the agency for good cause finds (and incorporate the
finding and a brief statement of reasons thereof in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.''
EPA is issuing this temporary stay as a final rule without prior
notice and comment. This expedited rulemaking procedure is based on the
need to act quickly to avoid unnecessary disruption at the inception of
the reformulated gasoline program, stemming from recent decisions by
various states to opt out of this program. The different circumstances
for the various covered areas involved are discussed below.
The final regulations establishing the reformulated gasoline
program were issued on December 15, 1993, requiring upstream parties to
have reformulated gasoline in the covered areas as of December 1, 1994,
and to have reformulated gasoline at all retail outlets in those areas
as of January 1, 1995. In late November and December, EPA received
requests from Pennsylvania, New York and Maine to opt out various areas
in these states. EPA responded to the initial requests from New York
and Pennsylvania by letter dated December 12, 1994, indicating EPA's
belief that the Act authorizes states to opt out of the reformulated
gasoline program, and EPA's intention to grant the request considering
the lack of adverse air quality impacts,\3\ the lack of reliance on
reformulated gasoline in the states' SIPs, and the logistical problems
associated with providing reformulated gasoline, at least with respect
to Jefferson County. EPA announced that it would commence rulemaking to
revise its regulations to effectuate the opt out, and effective January
1, 1995 would not enforce the reformulated gasoline requirements in the
respective counties. EPA, of course, retains its authority to take
appropriate action to address any non-compliance that may have occurred
prior to January 1, 1995.
\3\The affected areas have not had ozone exceedances for three
years. 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 has since learned that its December 12 announcement has led to
confusion and disruption in the market place regarding the transition
back to conventional gasoline. There is also uncertainty regarding
potential liability under EPA's citizen suit provisions. The existence
of confusion within the regulated community has led to unfortunate
disruptions in the market place. EPA neither intended nor expected this
result. Instead, EPA's December 12 announcement was an attempt to
provide certainty and stability, while at the same time recognizing the
value in allowing states to expeditiously opt out of the reformulated
gasoline program under appropriate circumstances.
With respect to the Albany-Buffalo area in New York and the
affected towns in Maine, EPA did not make a prior announcement of its
intention regarding the opt-out of these areas. However, expedited
issuance of a temporary stay is also needed for those areas to avoid a
patchwork of staggered times for opt out, occurring at the inception of
this major program. Such variability would only increase the logistical
and other problems facing the regulated community, and disrupt their
planning to produce and market reformulated gasoline over the next
several months.
This important and complicated program is just starting, and it is
necessary that all parties involved have the certainty and stability
needed for successful implementation. EPA believes that these
circumstances warrant a temporary stay of the reformulated gasoline
requirements in these areas effective from January 1, 1995 until July
1, 1995. That will provide adequate time to conduct notice and comment
rulemaking and take final action on these opt-out requests.
Given all of the above circumstances, EPA's belief that it is fully
authorized to allow the affected areas to opt out, the temporary nature
of this stay, and the ability of all parties to comment on the notice
of proposed rulemaking to allow the opt out of these areas, EPA
believes there is good cause under 5 U.S.C. 553(b) and CAA
Sec. 307(d)(1) to issue this final rule without prior notice and
comment. For the same reasons, EPA finds there is good cause under 5
U.S.C. 553(d) for the expedited effective date of this final rule.
V. Effective Date
This temporary stay is effective as of January 1, 1995.
VI. Environmental Impact
The temporary stay is not expected to have any adverse
environmental effects. The areas covered by this rule have data showing
compliance with the National Ambient Air Quality Standard (NAAQS) for
ozone for three or more consecutive years.
VII. Economic Impact
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this temporary stay
will not have a
[[Page 2699]]
significant economic impact on a substantial number of small entities.
This temporary 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
consumer in the affected areas.VIII. 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 Paper 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.
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, and Motor vehicle pollution.
Dated: December 29, 1994.
Carol M. Browner,
Administrator.
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.
* * * *
(j) The ozone nonattainment areas listed in this paragraph (j) of
this section 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 are covered
areas beginning on July 1, 1995. The geographic extent of each covered
area listed in this paragraph (j) of this section shall be the
nonattainment area boundaries as specified in 40 CFR part 81, subpart
C:
* * * *
[FR Doc. 95-421 Filed 1-10-95; 8:45 am]
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