Approval and Promulgation of Air Quality State Implementation Plans (SIP); Texas: Control of Gasoline Volatility

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Texas establishing a low-Reid Vapor Pressure (RVP) fuel requirement for gasoline distributed in 95 counties in the eastern and central parts of Texas. Texas developed this fuel requirement to reduce emissions of volatile organic compounds (VOCs) as part of the State's strategy to achieve the National Ambient Air Quality Standard (NAAQS) for ozone in the Houston-Galveston and Dallas-Fort Worth nonattainment areas. We are approving Texas' fuel requirement into the SIP because we found that the fuel requirement is in accordance with the requirements of the Clean Air Act (the Act) as amended in 1990 and is necessary for these nonattainment areas to achieve the ozone NAAQS.

DATES:

This final rule is effective on May 29, 2001.

ADDRESSES:

Copies of the documents relevant to this action are available for public inspection during normal business hours at the following locations. Persons interested in examining these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.

Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, 12100 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT:

Ms. Sandra G. Rennie, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7367.

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means EPA.

What Action Is EPA Taking Today?

We are granting final approval of Texas' low RVP fuel requirement for gasoline distributed in 95 counties in the eastern and central parts of Texas. The State's low-RVP program will only apply in the attainment counties listed in this action and will not apply in the designated nonattainment counties in the Houston-Galveston (HGA), Dallas-Fort Worth (DFW), or Beaumont-Port Arthur (BPA) ozone nonattainment areas because these areas are already subject to Federal fuel controls that are at least as stringent.

What Are the Clean Air Act Requirements?

Section 172 of the Act provides the general requirements for nonattainment plans. Section 172(c)(6) and section 110 require SIPs to include enforceable emission limitations, and such other control measures, means or techniques as well as schedules and timetables for compliance, as may be necessary to provide for attainment by the applicable attainment date. Today's SIP revision involves approval of one of a collection of controls adopted by the State to achieve the ozone standard in the DFW and HGA nonattainment areas as required under section 172. EPA approval of this SIP revision is governed by section 110 of the Act.

In addition to these general requirements, section 211(c)(4)(C) provides that a state fuel control, otherwise preempted under section 211(c)(4)(A), may only be approved into a SIP if EPA finds the fuel control is “necessary” to achieve a NAAQS. Today's approval of the State's fuel control also meets the requirements of section 211(c)(4)(C) because we have found that the control is “necessary” to achieve the NAAQS in the DFW and HGA ozone nonattainment areas.

Why Is EPA Taking This Action?

We are taking this action because the State submitted an adequate demonstration to show the necessity for this fuel requirement to achieve the NAAQS in the DFW and HGA ozone nonattainment areas.

What Does the State's Low-RVP Regulation Include?

The State's low-RVP regulation requires that gasoline sold within the 95 attainment counties listed in the regulations have a maximum RVP of 7.8 psi. The regulations apply to gasoline sold at gasoline dispensing facilities between June 1 and October 1 of each year, and between May 1 and October 1 of each year for bulk plants, gasoline terminals and gasoline storage vessels.

The 95 central and eastern Texas counties affected by these rules are Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Ellis, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Johnson, Karnes, Kaufman, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Parker, Polk, Rains, Red River, Refugio, Robertson, Rockwall, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, and Wood Counties.

What Did the State Submit?

The State submitted SIP revisions for 30 Texas Administrative Code (TAC) 114 on August 16, 1999, and April 25, 2000, as well as technical supplements dated October 13, 1999, and February 11, 2000. The submittals contained data and analyses to support a finding under section 211(c)(4)(C) that the State's low-RVP requirement is necessary for the DFW and HGA nonattainment areas to achieve the ozone NAAQS. For further discussion of the submittal, see the proposed approval, 65 FR 69720 (November 20, 2000) and accompanying Technical Support Document.

What Comments Did EPA Receive in Response to the November 20, 2000, Proposed Rule?

EPA received comments on the Notice of Proposed Rulemaking (NPR) from the Texas Oil and Gas Association (TxOGA) and Southwest Research Institute. A summary of the comments received and EPA's response is presented below.

A. State Regulation of Fuels Outside Nonattainment Areas

Comment: TXOGA supports the use of cleaner burning fuel, but opposes the regional regulation of gasoline in areas outside of designated nonattainment areas because they do not believe that regulation of gasoline in attainment areas has been demonstrated to be necessary for NAAQS attainment in the HGA or DFW areas.

Response: We believe it is reasonable to justify fuel controls in attainment areas as “necessary to achieve the NAAQS” where, as here, it is demonstrated that emissions reductions associated with fuel use in the surrounding attainment areas benefit the nonattainment areas of concern and there are no reasonable or practicable non-fuel alternatives that would bring about timely attainment. Regional approaches to reducing pollution are acceptable to EPA because air pollution does not recognize political or geographic boundaries.

In our Technical Support Document (TSD) accompanying the proposed approval, we explained the way in which the low-RVP program will help the nonattainment areas achieve the NAAQS (more detailed discussions of how the regional fuel benefits the nonattainment areas are provided in the responses to comments below). Second, we reviewed the reasonableness and practicability of non-fuel control alternatives. Finally, we showed that with implementation of all reasonable and practicable control measures including the regional fuel control, the HGA and DFW nonattainment areas will be able to attain the ozone NAAQS but with no margin for error.

B. Transport of Emissions and Emissions From Commuting Vehicles

Comment: TXOGA points out that controls in areas downwind of the nonattainment areas do not benefit DFW or HGA. TXOGA also notes a recent modeling study showed Corpus Christi does not affect HGA and asserts that other areas in North Texas claim similar lack of influence on the DFW area.

Response: The TSD presents specific modeling data identifying those counties from which NO_X and ozone are transported to the DFW and/or HGA nonattainment areas. TXOGA does not dispute these modeling results or provide reason not to rely on this data. The models show that at least 82 of the 95 counties subject to the regional low-RVP control have some meteorological connection with the DFW and HGA nonattainment areas such that it is reasonable to conclude that emissions reduction in these counties will benefit the DFW and HGA areas. TxOGA's specific examples do not undermine our overall conclusion that many areas transport ozone and/or VOCs and that reduction of emissions in these areas will benefit nonattainment areas.

Comment: TXOGA argues that the evaporative benefits from controlling RVP used in newer vehicles are small because new vehicle standards already result in evaporative emissions controls. In addition, TXOGA argues that the benefit attributed to vehicles fueling-up in the attainment areas and commuting into the nonattainment areas is small because the large geographic area has little commuting and people more often purchase gas in cities and go to surrounding areas than vice-versa.

Response: TXOGA's claims that the benefits associated with commuting vehicles are small, are unsupported, and do not undermine the overall conclusion that controls in these surrounding areas are reasonably related to attainment in the DFW and HGA areas. It should be noted, at the outset, that TXOGA does not question the modeled benefits of the low-RVP program. Its claims regarding the benefits associated with commuting vehicles therefore are taken only as a challenge to EPA's justification for approving of the fuel control in surrounding attainment areas.

The State provided data on commuting for counties surrounding DFW and HGA areas. This showed where potential impacts from commuting are most significant. For example, in the DFW area, 17 of the 22 attainment counties immediately surrounding the nonattainment counties have 10 percent or more of their county work trips being made into the nonattainment counties. These numbers support EPA's conclusion that controlling the fuel in these areas will benefit the DFW and HGA nonattainment areas.

TXOGA has provided no basis to support its assertion that commuting vehicles are more likely to refuel in the cities than in the areas in which the commuters live. It is equally as reasonable to expect that, given price and convenience factors, commuters are at least as likely to refuel in the surrounding attainment areas as they are in the nonattainment areas.

In addition, we note that even though the benefits of a low-RVP fuel are not as significant in newer vehicles, there is still a benefit from controlling RVP across the fleet as a whole. EPA's estimates of nationwide vehicle fleet age distribution indicate that more than half of the existing light duty vehicle fleet is eight years or older. Additionally, these estimates show that the light duty fleet includes a significant percentage of trucks (about 40%) which are currently subject to less stringent emission standards than passenger cars. Therefore, it is still reasonable to conclude that the low-RVP control will benefit the nonattainment areas, not only through transport of emissions but also through reduction in direct emissions.

C. Distribution

Comment: TXOGA argues that approval of the regional fuel program cannot be justified based on distribution issues because distribution within the geographic area has nothing to do with air quality. TXOGA supports as broad a fuel program as possible including a national program but argues that even with the regional plan there will be a patchwork because pipelines supply both sides of the program boundary.

Response: We looked at distribution to support the conclusion that the scope of the program is reasonable even though not all of the 95 counties covered by the rule contribute to air quality in DFW and HGA. The analysis shows that at least 82 of these 95 counties contribute emissions to the DFW and/or HGA nonattainment areas through either meteorologic transport or via commuting vehicles, or both. Fuel controls are therefore justified in these counties. We concluded that extending the low-RVP program to the remaining 13 counties was reasonable to simplify distribution and compliance. EPA has used similar considerations in approving other regional fuel controls. See 54 FR 26030 (June 21, 1989) (approving low-RVP program in New York); 55 FR 20601 (May 18, 1990) (approving low-RVP program in Maine). We believe that the broader program is more reasonable than limiting the scope of the program to only those areas demonstrated to impact DFW and HGA air quality, which would result in a county-by-county patchwork.

D. Necessity

Comment: TxOGA also challenges EPA's analysis of the availability of non-fuel alternatives. TxOGA argues that because the emission reduction benefit was not quantified in terms of actual VOC reductions, EPA cannot support the conclusion that the Regional Low-RVP fuel program is the most reasonable and practicable measure to reduce background ozone levels and curtail transport of ozone and precursors in the nonattainment areas. They argue that without quantifying the VOC reductions attributable to the use of low-RVP fuel in each county, it is not possible to determine the cost-effectiveness of the rule in each attainment county and impossible to determine if more reasonable and practicable measures are available.

Response: Texas considered over 300 measures within the nonattainment areas and submitted a long list of non-fuel measures that it considered for implementation outside the nonattainment areas. All reasonable and practicable measures have been adopted and the reasons for rejecting the others have been provided. TxOGA has not pointed to any particular alternative control measure that EPA or the State improperly rejected as unreasonable or impracticable. Instead, TXOGA argues generally that the analysis of alternatives was incomplete. We believe the analysis of alternatives was thorough and appropriate even without strict comparison of cost-effectiveness.

We disagree that a reasonable analysis of alternatives must be based on a county-by-county comparison of the cost-effectiveness of the fuel program and the cost-effectiveness of other controls. First, the county-by-county approach TXOGA suggests is itself unreasonable to the extent it implies that the State must mix and match regulations at the county level to ensure that the most cost-effective controls are used in each county. Such a regulatory approach could not realistically be implemented and has never been required.

Second, we disagree with TXOGA's claim that non-fuel alternatives can only be rejected based on a comparison to the cost-effectiveness of the fuel measure. EPA's 1997 Guidance (Guidance on Use of Opt-in to RFG and Low RVP Requirements in Ozone SIPs, August, 1997, U.S. Environmental Protection Agency, Office of Mobile Sources) describes the factors generally to be considered in evaluating the reasonableness and practicability of non-fuel alternatives under section 211(c)(4)(C). These factors include, but are not limited to, the following: length of time to implement the measure; length of time to achieve ozone reduction benefits; degree of disruption entailed by implementation; other implementation concerns such as supply issues; costs to industry, consumers and/or the state; cost effectiveness; or reliance on commercially unavailable technology. Some factors may be appropriate for some areas but not for others. Cost-effectiveness is not the only factor to be considered in making the determination for reasonableness and practicability. Given the deadlines imposed by the Act and consequences for failure to attain, length of time to achieve ozone reduction benefits and supply issues were also critical factors for today's action.

Even though some point source control programs can be cost-effective, a regional fuel program can be implemented on a faster timetable and impacts a much larger geographic area. Those additional factors make the Regional Fuel program more reasonable and practicable than point and area source controls of similar cost and benefit.

We continue to believe there are no reasonable or practicable alternative control measures that would bring about timely attainment.

E. Methyl Tertiary Butyl Ether (MTBE)

Comment: TXOGA asks EPA to clarify whether the proposed SIP and section 211(c)(4)(C) waiver address the portion of the Texas RVP rule that restricts the use of MTBE to levels used in conventional gasoline prior to the implementation of this requirement.

Response: EPA did not make a determination under section 211(c)(4)(C) on the MTBE provision of the Texas rule because the State did not submit that portion of the rule for SIP approval. Therefore, we are not acting on the MTBE provisions.

F. Exemptions

Comment: Southwest Research Institute (SwRI) commented that the fuel rule would not allow them to conduct research during the summer ozone season because there were no exemptions provided for research and development operations to utilize test fuels that do not meet the 7.8 RVP requirement.

Response: EPA agrees with the commenter that the Texas rule contains no exemptions for research facilities. While we understand that this was an oversight, this is not cause for disapproval. It is our understanding that Texas has committed to revising 30 Texas Administrative Code (TAC) 114 at the earliest opportunity to provide an exemption for research and development operations from the 7.8 RVP requirement. We will review such a regulatory change to determine the impact upon the attainment demonstration when Texas submits the measure as a formal SIP revision.

EPA's Rulemaking Action

We are granting final approval pursuant to sections 110 and 211(c)(4)(C) because we find that the State has (1) identified the reduction in modeled peak values needed to achieve attainment of the ozone NAAQS; (2) identified all other reasonable and practical control measures; (3) shown that even with the implementation of all reasonable and practicable control measures, the State would need additional emissions reductions for these nonattainment areas to meet the ozone NAAQS (124 ppb) on a timely basis; and (4) demonstrated that the low-RVP requirement would contribute to those additional reductions.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective May 29, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 25, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Hydrocarbons
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:

PART 52—[AMENDED]

1. The authority for citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart SS—Texas

2. In § 52.2270(c) the table is amended by revising the entry for “Section 114.1” and adding to the end of the section “Chapter 114 (Reg 4)—Control of Air Pollution From Motor Vehicles” a new heading with entries for “Subchapter H—Low Emission Fuels” to read as follows: