Request for Opt-Out of the Reformulated Gasoline Program:
Jefferson County, Albany and Buffalo, New York; Twenty-Eight Counties
in Pennsylvania; and Hancock and Waldo Counties in Maine, General
Procedures for Future Opt-Outs and Extension of Stay
[Federal Register: June 14, 1995 (Volume 60, Number 114)]
[Proposed Rules]
[Page 31269-31274]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5219-4]
Request for Opt-Out of the Reformulated Gasoline Program:
Jefferson County, Albany and Buffalo, New York; Twenty-Eight Counties
in Pennsylvania; and Hancock and Waldo Counties in Maine, General
Procedures for Future Opt-Outs and Extension of Stay
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
SUMMARY: In today's action, EPA is proposing to remove Jefferson County
and the Albany and Buffalo areas in New York; twenty-eight counties in
Pennsylvania; and Hancock and Waldo counties in Maine from the list of
covered areas identified in section 80.70 of the reformulated gasoline
rule. This is based on requests from the Governors of New York,
Pennsylvania and Maine that these areas opt out of this federal
program. In a separate action signed by the EPA Administrator on
December 29, 1994, EPA stayed the application of the reformulated
gasoline regulations in Jefferson County and the Albany and Buffalo
areas of New York; the twenty-eight opt-in counties in Pennsylvania;
and Hancock and Waldo counties in Maine effective January 1, 1995 until
July 1, 1995, to allow finalization of this rulemaking. Today's notice
also proposes to extend this stay during the pendency of this
rulemaking, until the agency takes final action on the proposed opt-out
for these areas. This action does not affect the necessity for these
areas to comply with the requirements of the anti-dumping program.
EPA is also proposing general rules establishing the criteria and
procedures for states to opt-out of the RFG program.
DATES: Regarding the proposal to extend the stay of the reformulated
gasoline regulations in the designated New York, Pennsylvania, and
Maine counties, no public hearing will be held. Comments must be
received by June 28, 1995.
If a public hearing is held on the opt-out of the designated New
York, Pennsylvania, and Maine counties or on the general procedures for
future opt-outs, comments must be received by August 4, 1995. If a
hearing is not held, comments must be received by July 14, 1995. Please
direct all correspondence to the addresses shown below.
The Agency will hold a public hearing on the proposed opt-out of
the designated New York, Pennsylvania, and Maine counties or on the
general procedures for future opt-outs if one is requested by June 21,
1995. If a public hearing is held, it will take place on July 5, 1995.
To request a hearing, or to find if and where a hearing will be held,
please call Mark Coryell at (202) 233-9014.
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 Mr. Mark Coryell at U.S. Environmental Protection Agency,
Office of Air and Radiation, 401 M Street, SW (6406J), Washington, DC
20460.
Materials relevant to this notice have been placed in Docket A-94-
68. 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 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 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 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. Introduction
This notice describes EPA's proposed action to remove Jefferson
County and the Albany and Buffalo areas in New York (a total of nine
counties in New York); the twenty-eight opt-in counties in
Pennsylvania; and Hancock and Waldo counties in Maine from the list of
covered areas defined by Sec. 80.70 of the reformulated gasoline rule
per the request of the States of New York, Pennsylvania and Maine. It
also [[Page 31270]] describes the Agency's proposal for general rules
concerning criteria and procedures for states to opt out of the
reformulated gasoline program. Finally, today's notice also proposes to
extend the stay of application of the reformulated gasoline regulations
in the designated counties during the pendency of this rulemaking,
until the agency takes final action on the proposed opt-out for these
areas.
II. Background
The reformulated gasoline (RFG) 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 also reduced. The 1990
Amendments to the Clean Air Act requires reformulated gasoline in the
nine cities with the highest levels of ozone. In section 211(k)(6),
Congress provided the opportunity for states to choose to opt-in to the
RFG program for their other nonattainment areas. Opting in under this
provision is relatively straightforward. The only area of discretion
for EPA involves establishing an appropriate effective date for the
start of the program in the opt-in area. To date, EPA has acted under
this provision on a case-by-case basis, given that the lead time needed
to supply a new area is often dependent on the specific refineries that
would supply the area and the specific distributional infrastructure
available between the refineries and the local retail stations. While
EPA is not now proposing regulations that would establish the effective
date for an opt-in area, EPA is interested in receiving comment on the
need and benefit of having such regulatory provisions, as well as the
most appropriate provisions.
EPA recognizes that there is considerable interest in allowing
attainment areas to participate in the federal reformulated gasoline
program. The Ozone Transport Commission, established under section 184
of the Act to assess the degree of interstate transport of ozone
throughout the ozone transport region,<SUP>1 is reviewing the viability
of a region-wide reformulated gasoline program. Other areas which are
currently classified attainment for the ozone air quality standard but
which have ozone monitoring data close to the federal ozone standard
are considering various ozone control measures to mitigate the risk of
future ozone violations. One such control measure is the reformulated
gasoline program. In light of the expressed interest in allowing
attainment areas to participate in the reformulated gasoline program,
EPA is soliciting comment on the feasibilty of and need for attainment
area opt-in.
\1\ The ozone transport region is comprised of the following
states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New
Hampshire, New Jersey, New York, Pennsylvania, Rhode Island,
Vermont, Virginia, and the District of Columbia.
EPA questions whether section 211(k) of the Act provides the Agency
with the discretion to allow attainment areas to opt-in to this federal
program. For example, section 211(k)(6) specifies that EPA shall extend
the prohibition of section 211(k)(5) to ozone nonattainment areas upon
the request of a governor. In addition, section 211(k)(1) authorizes
EPA to establish requirements for reformulated gasoline to be used in
specified nonattainment areas. EPA invites comment on its authority
under section 211(k). EPA also invites comment on whether the Agency
has authority under section 211(c) of the Act to establish a
requirement that federally certified RFG be sold in attainment areas
that ``opt-in'' under such a program.
EPA issued final rules establishing requirements for reformulated
gasoline on December 15, 1993. 59 FR 7716 (February 16, 1994). During
the 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 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 the year 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 15, 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. However, the
Agency did indicate that it intended to propose such procedures in a
separate rule.
Jefferson County and the other eight New York counties affected by
this proposal were included as covered areas in EPA's reformulated
gasoline regulations based on Governor Mario Cuomo's request of October
28, 1991, that these areas 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 Department of Environmental
Conservation, Mr. Langdon Marsh, to remove Jefferson County from the
list of areas covered by the requirements of the reformulated gasoline
program. EPA understands that Commissioner Marsh is acting for Governor
Cuomo in 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, and conduct
rulemaking to implement this. In the letter of December 12, addressing
the opt-out request for Jefferson County, the Administrator also
indicated 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 for reformulated gasoline violations arising after
January 1, 1995. This was based on the particular circumstances in
Jefferson County.
On December 23, 1994, Commissioner Marsh of New York's Department
of Environmental Conservation wrote to further request the opt-out of
the Albany and Buffalo areas which include the counties of Albany,
Greene, Montgomery, Rennsselaer, Saratoga, Schenectady, Erie and
Niagara. EPA 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, and conduct rulemaking to implement this. The December
28 letter also indicated EPA's intent to stay the reformulated gasoline
regulations from January 1, 1995, until July 1, 1995, in the specified
counties while the Agency completes rulemaking to appropriately change
the regulations. The letter stated, however, that the requirements of
the reformulated gasoline program would apply in these areas until the
stay becomes effective January 1, 1995.
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. See 40 CFR
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, [[Page 31271]] 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
covered areas defined by Sec. 80.70 of the reformulated gasoline rule.
As with New York's request, the Administrator responded to the State's
request in a letter to Governor Casey dated December 12, 1994, stating
EPA's intention to grant Pennsylvania's request, and conduct rulemaking
to implement this. Effective January 1, 1995, and until 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 for reformulated gasoline
violations arising after January 1, 1995. This was based on the
particular circumstances in Pennsylvania. EPA has reserved its
authority to enforce the reformulated gasoline program for violations
that may have occurred prior to January 1, 1995.
Hancock and Waldo Counties in Maine were included as 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, 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. EPA Assistant Administrator for Air and Radiation, Mary
Nichols, responded to the state's request in a letter to Commissioner
Garrett, dated December 28, 1994, stating EPA's intention to grant
Maine's request, and conduct rulemaking to implement this. The December
28 letter also stated EPA's intent to stay the reformulated gasoline
regulations from January 1, 1995 until July 1, 1995, in the specified
counties while the Agency completes rulemaking to appropriately change
the regulations. However, EPA has reserved its authority to enforce the
reformulated gasoline program for violations that may have occurred
prior to January 1, 1995.
III. EPA's Proposal To Grant New York's, Pennsylvania's and Maine's
Requests To Remove Selected Opt-In Areas From the Requirements of the
Reformulated Gasoline Program and Extension of the Stay of Application
of the Reformulated Gasoline Regulations
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 opt-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 * * *.'' <SUP>2
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.
\2\ 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, provided that a process
is established for a reasonable transition out of the program.<SUP>3
There are really two aspects 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, the
ability 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 ability to opt-out is a logical extension of these
considerations of deference to state decision making.
\3\ 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 opt-out 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.
With respect to air quality planning, EPA believes there is no
reason to delay the removal of the 39 affected counties, or portions of
counties, in New York, Pennsylvania and Maine. The 39 counties have not
had an ozone exceedance over a consecutive three-year period. Certain
of these thirty-nine [[Page 31272]] counties have pending requests with
EPA for redesignation to attainment status, and the remaining areas
intend to seek such redesignation. The State Implementation Plans for
these areas do not include or rely on reformulated gasoline as a
control measure. For the moderate areas in Pennsylvania, reformulated
gasoline is included in the redesignation plan as a contingency measure
in the maintenance plan. Allowing the areas to opt-out now would not
interfere with implementing that contingency. The areas could opt into
the reformulated gasoline program in the future, if necessary.
EPA's letters of December 12 and 28, 1994, to the States of New
York, Pennsylvania and Maine state that reformulated gasoline will no
longer be required in the specified areas effective January 1, 1995,
pending completion of the rulemaking to remove the affected counties.
These letters, combined with the requests from New York, Pennsylvania
and Maine to opt-out, have given the industries involved in the supply,
distribution and sale of reformulated gasoline to these areas notice of
the Agency's intent to remove these areas from the reformulated
gasoline program. This has provided time for industry to plan for the
transition from reformulated gasoline to conventional gasoline in the
affected areas. In a separate notice signed by the EPA Administrator on
December 29, 1994, and for the reasons described therein, EPA has
stayed the program in these thirty-nine counties, or portions thereof,
effective January 1, 1995, until July 1, 1995. Based on this
chronology, EPA proposes that these areas be removed from the
reformulated gasoline program effective upon the issuance of final
action in this rulemaking.
As mentioned above, 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 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 now proposes to extend this stay during the pendency
of this rulemaking, until the agency takes final action on the proposed
opt-out for these areas. This extension of the stay is based on the
reasons described in the December 29, 1994 rule, and the fact that EPA
will not be able to complete the opt-out rulemaking for these areas
prior to July 1, 1995.
EPA intends to take final action on the proposed extension of the
stay before July 1, 1995, to avoid the serious disruption to the
gasoline distribution system, the regulated industry and the public
that would be caused by a temporary imposition of the reformulated
gasoline requirements in these areas. Based on this potential for
serious disruption, and the reasons noted by EPA when it issued the
stay in December 29, 1994 (60 FR 2698, January 11, 1995), EPA has
determined that there is good cause under 5 U.S.C. 553(b) and Clean Air
Act section 307(d)(1) to limit the public comment period on the
proposed extension of the stay to June 28, 1995, and to not provide an
opportunity for a public hearing on this proposed extension. EPA finds
that additional notice and public procedure would be impracticable,
unnecessary, and contrary to the public interest.
IV. General Procedures for EPA's Processing of Future Opt-Out Requests
EPA is also proposing general rules to cover future opt-out
requests by states. EPA's proposal would authorize the Administrator to
approve a petition to opt-out all or a portion of an opt-in area. Such
a petition would have to be submitted by the governor, or their
authorized representative, and would need to include information
describing how, if at all, reformulated gasoline has been relied upon
by the state in its State Implementation Plans, revisions to such
plans, or redesignation requests, both pending or already approved.
This would include, for example, attainment as well as maintenance
plans.
If a state did rely on reformulated gasoline as a control measure
in such plans or requests, then the state would have to describe if and
how it intended to replace reformulated gasoline as a control measure.
In addition, the state would need to identify whether it intended to
submit a revision to its Plan or request for redesignation, the current
schedule for submitting any revised submission, and the current status
of state action on such revised submission, and if not, the reasons for
not submitting a revision. This would include, for example, the status
of any legislative or administrative action, including notice and
comment on such a revision.
The Administrator would have authority to establish an appropriate
effective date for removal of an area from the list of covered areas
defined in Sec. 80.70 of the reformulated gasoline rule, subject to
certain important limitations. For example, if reformulated gasoline
was relied upon as a control measure in an approved plan, then the optout
would not become effective until 30 days after the Agency had
approved an appropriate revision to the state plan. Likewise, if
reformulated gasoline was not relied upon in an approved or pending
SIP, SIP revision, or redesignation request, then the opt-out would
become effective 30 days from receipt of a complete opt-out petition.
If reformulated gasoline was relied upon as a control measure in a plan
that had been submitted to the Agency but is still pending, and the
Agency has found the plan to be complete and/or made a protectiveness
finding under 40 CRF 51.448 and 93.128, then the opt-out would become
effective 120 days from the date a complete petition is received. When
the state has a pending plan that the Agency has determined complete
and/or for which the Agency has made a protectiveness finding and the
state has decided to withdraw the submission or has indicated to the
Agency the state's intention to submit a revision, then the opt-out
would become effective 30 days from receipt of a complete petition from
the state, as described above and specified in the proposed regulatory
language.
Under this proposal, the regulated community would typically have
thirty days lead time to transition out of the program for that area,
from the point a complete opt-out petition had been received by EPA.
Where a state's approved SIP includes reformulated gasoline as a
control measure, there would typically be a longer period of notice, as
the opt-out would not be effective until 30 days from the effective
date for EPA approval of a revised SIP which removes reformulated
gasoline as a control measure. EPA's experience to date with the
current opt-out requests indicates that the regulated community can, in
most cases, act relatively quickly to reroute supplies and change
plans. It also is clear that a short transition period will avoid
problems of market uncertainty and market disruptions. Some
representatives of industry have communicated to EPA their concern for
sufficient lead time for affected industries to make adjustments to
their infrastructure and the need for a period of public comment on
each reformulated gasoline program covered area opt-out request. Some
have suggested that opt-out not be effective until 90 days after a
governor's request is received by EPA, while others have suggested that
the opt-out timeframe be dealt with on a case-by-case basis. EPA will
consider this suggestion and specifically requests comments on these
issues and other suggestions. [[Page 31273]]
The proposal is structured so that the effective date for opting
out is based on coordination with the state's air quality planning.
Where no state SIP or redesignation request relies on reformulated
gasoline, no further coordination is needed. Where a submission pending
before the Agency contains reformulated gasoline as a control measure,
and the Agency has not taken final action on the submission, it would
be appropriate to allow opt-out to occur quickly where the state either
withdraws the pending SIP submission or indicates its intention to make
a substitute for RFG at some future date. This would provide
flexibility for the states and allow for orderly state planning, as the
state's planning would be consistent with the use of RFG in the area.
On the other hand, where the Agency has taken final action approving a
SIP, it is appropriate for the Agency to maintain the status quo until
the state submits and EPA approves a revision removing RFG as a control
measure in the approved SIP. This recognizes the requirement that
states implement an approved plan until such time EPA approves its
revision. Finally, where a plan submission is pending before EPA, and
EPA has made a protectiveness finding for purposes of conformity and/or
the submission has been found or deemed complete, then opt-out should
be delayed for 120 days to provide the Agency an adequate opportunity
to review the current completeness determination and/or protectiveness
finding on the SIP submission without the use of RFG as a control
measure and to communicate to the state any potential change in SIP
status.
EPA believes that it is important that a state choosing to opt-out
of the reformulated gasoline program should plan to make any
appropriate revisions to its SIP, if necessary, to replace the
reformulated gasoline program as a control measure. Careful planning is
needed by the state as EPA analysis indicates that reductions from
other sources are often much less practicable. Reformulated gasoline is
one of the most cost-effective measures for ozone control available and
also yields significant air toxic benefits.
EPA specifically reserves its authority to monitor compliance with
the reformulated gasoline program and to take appropriate action to
address violations that may occur prior to the effective date for any
opt-out.
V. Environmental Impact
If an area opts out of the reformulated gasoline program, it will
not receive the reductions in volatile organic compounds, oxides of
nitrogen (NOX), and air toxics that are expected from this
program. Instead, the areas would be subject to the federal controls on
Reid vapor pressure for gasoline in the summertime, and would receive
control of NOXand air toxics through the requirements of the
conventional gasoline anti-dumping program. These latter requirements
are designed to ensure that gasoline quality does not degrade from the
levels found in 1990. The specific 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. With regard to
the general rule for opt-out, EPA is proposing that before opt-out is
allowed, States requesting opt-out must provide information on
substitutes for the reformulated gasoline program or in some cases have
substitutes approved, depending on the status of EPA's processing of
the SIP. EPA expects that this and the SIP process will ensure that our
air quality is maintained. However, these areas would be foregoing the
additional air quality benefits obtained from the use of reformulated
gasoline.
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 impact on a substantial number of small entities. This
proposed rule is not expected to result in any additional compliance
cost to regulated parties and in fact is expected to decrease
compliance costs 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. While this proposed rule does require
information from a state requesting opt-out, EPA does not believe it
will receive more than nine opt-out requests per year. If EPA
determines that 10 or more states will be affected in any year, EPA
will prepare an Information Collection Request and make it available
for public review and comment.
Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
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 action 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. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
VIII. Statutory Authority
The statutory authority for the action in this rule is granted to
EPA by sections 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.
[[Page 31274]] Dated: June 2, 1995.
Carol M. Browner,
Administrator.
40 CFR part 80 is proposed to be 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 80.2 is amended by adding paragraph (vv) to read as
follows:
Sec. 80.2 Definitions.
* * * *
(vv) Opt-in area. An area which becomes a covered area under
Sec. 80.70 pursuant to section 211(k)(6) of the Clean Air Act.
Section 80.70 is amended by revising the first sentence of
paragraph (j) introductory text 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
shall not be covered areas until EPA takes final action on the proposal
to remove these areas as covered areas. * * *
* * * *
Sec. 80.70 [Amended]
4. Section 80.70 is amended by removing paragraphs (j)(5)(viii) and
(ix).
5. Section 80.70 is amended by removing paragraphs (j)(10)(i),
(iii) and (v) through (xi), and redesignating paragraphs (j)(10)(ii)
and (iv) as (j)(10)(i) and (ii).
6. Section 80.70 is amended by removing paragraph (j)(11) and
redesignating paragraphs (j)(12) through (15) as (11) through (14).
7. Section 80.70 is amended by adding paragraph (l) to read as
follows:
Sec. 80.70 Covered areas.
* * * *
(l) Upon the effective date for removal under Sec. 80.72(a), the
geographic area covered by such approval shall no longer be considered
a covered area for purposes of subparts D, E and F of this part.
Section 80.72 is added to read as follows:
Sec. 80.72 Procedures for opting out of the covered areas.
(a) In accordance with paragraph (b) of this section, the
Administrator may approve a petition from a state asking for removal of
any opt-in area, or portion of an opt-in area, from inclusion as a
covered area under Sec. 80.70. In approving any such petition, the
Administrator shall establish an appropriate effective date for such
removal, pursuant to paragraph (c) of this section.
(b) To be approved under paragraph (a) of this section, a petition
must be signed by the governor of a state, or his or her authorized
representative, and must include the following:
(1) A geographic description of each opt-in area, or portion of
each opt-in area, which is covered by the petition;
(2) A description of all ways in which reformulated gasoline is
relied upon as a control measure in any approved state or local
implementation plan or plan revision, or in any submission to the
Agency containing any proposed plan or plan revision (and any
associated request for redesignation) that is pending before the Agency
when the petition is submitted; and
(3) For any opt-in areas covered by the petition for which
reformulated gasoline is relied upon as a control measure as described
under paragraph (b)(2) of this section, the petition shall include the
following information:
(i) Identify whether the state is withdrawing any such pending plan
submission;
(ii)(A) Identify whether the state intends to submit a revision to
any such approved plan provision or pending plan submission that does
not rely on reformulated gasoline as a control measure, and describe
the alternative air quality measures, if any, that the state plans to
use to replace reformulated gasoline as a control measure;
(B) A description of the current status of any proposed revision to
any such approved plan provision or pending plan submission, as well as
a projected schedule for submission of such proposed revision;
(C) If the state is not withdrawing any such pending plan
submission and does not intend to submit a revision to any such
approved plan provision or pending plan submission, describe why no
revision is necessary;
(D) If reformulated gasoline is relied upon in any pending plan
submission, other than as a contingency measure consisting of a future
opt-in, and the Agency has found such pending plan submission complete
or made a protectiveness finding under 40 CFR 51.448 and 93.128,
demonstrate whether the removal of the reformulated gasoline program
will affect the completeness and/or protectiveness determinations;
(4) Upon request by the Adminstrator, the Governor of a State, or
his or her authorized representative, shall submit additional
information upon request of the Administrator
(c) (1) Except as provided in paragraph (c)(2) and (3) of this
section, the Administrator shall set an effective date for removal of
an area under paragraph (a) of this section of 30 days from receipt of
a complete petition by EPA.
(2) If reformulated gasoline is contained as an element of any plan
or plan revision that has been approved by the Agency, other than as a
contingency measure consisting of a future opt-in, then the effective
date under paragraph (a) of this section shall be 30 days from the
effective date for Agency approval of a revision to the plan that
removes reformulated gasoline as a control measure.
(3) Unless the state has withdrawn the submission or indicated its
intention to submit a revision, if reformulated gasoline is contained
as an element in any plan or plan revision that has been submitted to
and is pending approval by the Agency, other than as a contingency
measure consisting of a future opt-in, and where such pending plan or
plan revision has been found or deemed to be complete and/or the Agency
has made a protectiveness finding under 40 CFR 51.448 and 93.128
concerning such submission, then the effective date under paragraph (a)
of this section shall be 120 days from the date a complete petition is
received by the Agency.
(d) The Administrator shall publish a notice in the Federal
Register of any petition approved under paragraph (a) of this section,
announcing the effective date for removal.
[FR Doc. 95-14573 Filed 6-13-95; 8:45 am]
BILLING CODE 6560-50-P
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