RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 121, 126 AND 139]
[27 Pa.B. 5601]
The Environmental Quality Board (Board) by this order amends Chapters 121, 126 and Chapter 139 (relating to general provisions; standards for motor fuels; and sampling and testing) to read as set forth in Annex A. The final-form regulations will limit the volatility of gasoline sold in the Pittsburgh-Beaver Valley Area during the ozone season.
These final-form regulations will be submitted to the Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).
The Board approved the amendments at its September 16, 1997 meeting.
A. Effective Date
These amendments will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Terry Black, Chief, Regulation and Policy Development Section, Division of Compliance and Enforcement, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-1663; or M. Dukes Pepper, Jr., Assistant Counsel, Bureau of Regulatory Counsel, Office of Chief Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final rule is available electronically through the Department of Environmental Protection (Department) Web site (http://www/dep.state.pa.us).
C. Statutory Authority
This action is being taken under the authority of section 5 of the Air Pollution Control Act (35 P. S. § 4005) which grants to the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background and Summary of the Amendments
These amendments establish controls on the volatility of gasoline sold in the Pittsburgh-Beaver Valley Area as part of the Commonwealth's demonstration of attainment of the health-based ozone standard. Based on 1991 through 1994 monitoring data, the EPA, on July 19, 1995, determined that measured air quality in the area met the ozone National Ambient Air Quality Standards (NAAQS) and that the statutory requirement for an attainment demonstration (and other related requirements) was no longer applicable. However, there were a number of ozone exceedances in 1995 that resulted in a violation of the ozone NAAQS. In response to this violation, the Governor formed the Southwestern Pennsylvania Ozone Stakeholder Working Group to review the ozone problem and recommend additional emission control programs.
In response to the 1995 ozone NAAQS violation, the EPA, on June 4, 1996, published a finding at 61 FR 28061 et seq. that the area was no longer attaining the ozone standard and reinstated the applicability of the attainment demonstration and related requirements. These requirements are those established by Part D of Title I of the Clean Air Act, sections 182(b) and 172(c)(9) (42 U.S.C.A. §§ 7511a(b) and 7502(c)(9)). The EPA recognized the work of the Southwestern Pennsylvania Ozone Stakeholder Working Group when it published the schedule for completion of the attainment demonstration for the Pittsburgh-Beaver Valley Ozone Nonattainment Area. The schedule was a result of a letter submitted by the Commonwealth. Under the schedule, by December 31, 1997, the Commonwealth must submit to the EPA, as a SIP revision, final regulations establishing the emission controls contained in Annex A. In the event the Commonwealth fails to meet this schedule, the sanctions established by the Clean Air Act will go into effect early in January, 1998. These sanctions include 2 to 1 emission offsets and (after 6 months) the loss of Federal highway funds in the Pittsburgh-Beaver Valley Ozone Nonattainment Area.
These amendments are one of four core emission reduction strategies necessary for the demonstration of attainment of the ozone standard. The four strategies are:
1. Minor changes to the proposed low-enhanced (de- centralized) motor vehicle emission inspection and maintenance program.
2. The second phase (55% reduction) of the Ozone Transport Commission NOx Memorandum of Understanding.
3. Clean gasoline proposal.
4. Stage II vapor control requirements.
These four core strategies were recognized by the Southwestern Pennsylvania Ozone Stakeholder Working Group as necessary to achieve the ozone standard in the Pittsburgh-Beaver Valley Area and this proposal was recommended by the Stakeholder Group. Other mandatory strategies were considered by the Stakeholder Group, but were found to be either unreasonable or impracticable. In addition, the Department discussed these regulations with the Air Quality Technical Advisory Committee (AQTAC). At its July 21, 1997, meeting, the AQTAC recommended adoption of the final-form regulations.
The Department is adding definitions for the terms ''compliant fuel,'' ''Federal reformulated gasoline or RFG,'' ''importer,'' ''low RVP gasoline,'' ''Pittsburgh-Beaver Valley Area'' and ''Reid vapor pressure.'' In addition, the Department is modifying the definition of ''distributor.''
These final-form regulations add a new Subchapter C (relating to gasoline volatility requirements) to Chapter 126. Section 126.301 (relating to compliant fuel requirement) provides that this new subchapter applies to the sale of gasoline in the Pittsburgh-Beaver Valley Area between May 1 and September 15 of each calendar year. Section 126.301 also imposes a Reid vapor pressure (RVP) limit on all gasoline marketed in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland Counties. The regulation provides for Federal reformulated gasoline (RFG) as an alternate compliant fuel. The restrictions on fuel would be effective between May 1 and September 15 of each year beginning in calendar year 1998 for all refiners, distributors, resellers, carriers and wholesalers. The restrictions would be applicable between June 1 and September 15 of each year for all wholesale purchaser consumers and retailers of gasoline. Finally, if the RFG is required by Federal law to be sold in the Pittsburgh-Beaver Valley Area, the requirements of these final-form regulations are terminated.
The requirements of § 126.302 (relating to labeling requirements) for gasoline dispensed at any retail outlet in the Pittsburgh-Beaver Valley area have been deleted in response to comments received.
Section 126.303 (relating to recordkeeping and reporting) requires each entity in the gasoline dispensing network, beginning with the terminal owner, to maintain records of the date, name and address of transferor and transferee, the location and volume of gasoline being sold or transferred, and a statement certifying that the gasoline meets the RVP or RFG requirements. These records must be retained for at least 2 years from the date of sale or transfer of the compliant fuel.
Section 126.304 (relating to compliance and test methods) and the amendments to Chapter 139 (relating to sampling and testing) establish the compliance test methods for evaluating fuel volatility and RVP. These test methods are consistent with the requirements established by the EPA.
E. Summary of Comments and Responses on the Proposed Rulemaking
Comments were received from petroleum industry representatives, the EPA and the Independent Regulatory Review Commission (IRRC). The comments from the petroleum industry and IRRC suggested that the program implementation dates be changed to be consistent with the Federal fuel program dates and that the pump labeling requirements be deleted. Changes were made in response to these comments altering the program start dates and deleting the pump labeling provisions.
Other comments from the industry suggested that the prohibition against mixing of complying and noncomplying fuels could prohibit blending to correct off-specification gasoline. Noncomplying fuel should not be in the area during the control period, and these requirements have not been changed in the final rulemaking. A commentator indicated that the proposed regulation requires the segregation of low volatility gasoline and RFG and will prohibit the mixing of RFG and low volatility gasoline in the pipeline or storage and may keep RFG from the market. The Federal definition of RFG prevents the mixing of a fuel certified as RFG with any non-RFG gasoline. No change was made in response to this comment. A commentator suggested that industry codes be allowed to identify gasoline in addition to the other identifiers. The final rulemaking provides for use of appropriately identified product codes. Several commentators questioned whether there would be a test tolerance of 0.3 psi allowed for enforcement purposes. This is an implementation issue based on the analysis technique, and the final-form regulations do not specifically provide a testing tolerance. However, testing and analysis are conducted in a manner consistent with Federal requirements.
The EPA made a number of comments related to the proposed amendments. One comment related to possible Federal preemption of the RFG provisions in the amendments. Based on further discussions with the EPA, this is an issue that can be addressed by the EPA in its review and approval of SIP. The EPA also questioned the level of emission reduction credits the Department would claim because of the difference in reductions which occur with the use of the different complying fuels. There is a slight difference in evaporative emission reductions between the RFG and low volatility fuels, but the overall emission reductions including evaporative and tailpipe emissions are actually greater with the RFG than with the low volatility gasoline. The Department plans to take credit only for emission reductions realized through the use of low volatility gasoline. No changes have been made to the regulation to address the EPA's comments.
One industry commentator, in response to the Department's request for comment regarding a ''ramp-up'' interval, suggested that the amendments should not specify details of getting complying fuel into the market, but that the matter should be left to the industry to comply by the required deadlines. No provisions are contained in the final-form regulations regarding a ''ramp-up'' period.
One industry commentator, in response to the Department's request for comment regarding the generation of emission reduction credits (ERCs) for use of the RFG, suggested that this program would be too complex and costly to implement and advised against a program. No specific provisions are contained in the final-form regulations regarding the generation of ERCs.
One industry commentator described an implementation/enforcement policy which the Department should consider. Implementation policy will be developed after the final rule is promulgated. Enforcement will be consistent with the Department's Thoughtful and Thorough Enforcement Policy dated September 21, 1995.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the amendments.
The approximately 2.8 to 3 million people in the seven counties affected by these final-form regulations will benefit from the sale of cleaner burning fuel. Both low RVP gasoline and RFG have been proven to reduce emissions of volatile organic compounds (VOC), compounds that are instrumental in the formation of ground level ozone. In addition, RFG lowers emissions of air toxics, nitrogen oxides, carbon monoxide and benzene.
There will be an increased cost to the regulated community to produce compliant fuel. Both low RVP and RFG cost more to make than conventional gasoline. It is anticipated that the increased cost of production the refiners experience will be passed onto the consumer and, consequently, the regulated community will not bear the increased cost. Estimates regarding the price per gallon increases vary depending on a number of factors, but generally the increase has been documented to be 1 to 2¢ per gallon for low RVP and 3 to 5¢ per gallon for RFG. This cost, based on an estimate of the number of gallons sold in a 5 month period in the seven county area, could range from $4 million to $20 million each ozone season.
Compliance Assistance Plan
The Department plans to educate and assist the public and regulated community with understanding the newly revised requirements and how to comply with them. This will be accomplished through the Department's ongoing regional compliance assistance program.
There will be additional recordkeeping and reporting costs for any entity that sells or transfers gasoline intended for use in the seven-county Pittsburgh-Beaver Valley Area during the ozone season. Each transferor or transferee will be required to alter its current recordkeeping documents to include the information required by these final-form regulations.
G. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the final-form regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 21, 1997, the Department submitted a copy of the proposed amendments to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on October 7, 1997. IRRC met on October 9, 1997, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided and a public hearing held as required by law, and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 2130 (May 3, 1997).
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble and are reasonably necessary to achieve and maintain the NAAQS for ozone.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121, 126 and 139, are amended by amending §§ 121.1, 139.4 and 139.14 and adding §§ 126.301--126.303 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication.
JAMES M. SEIF,
(Editor's Note: Proposals to amend § 121.1 remain outstanding at 27 Pa.B. 1822, 4325 and 4340 (April 12, 1997 and August 23, 1997). For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 5561 (October 25, 1997).)
Fiscal Note: Fiscal Note 7-319 remains valid for the final adoption of the subject regulations.
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE III. AIR RESOURCES
CHAPTER 121. GENERAL PROVISIONS
§ 121.1. Definitions.
The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * *
Compliant fuel--Low RVP gasoline or RFG.
* * * * *
Distributor--A person who transports, stores or causes the transportation or storage of gasoline at any point between a refinery, an oxygenate blending facility or terminal and a retail outlet or wholesale purchaser-consumer's facility. The term includes a refinery, an oxygenate blending facility or a terminal.
* * * * *
Importer--A person who imports gasoline or gasoline blending stocks or components from a foreign country into the United States.
* * * * *
Low RVP gasoline--Gasoline that has an RVP of 7.8 pounds per square inch or less as determined in accordance with the appropriate sampling and testing methodologies in 40 CFR Part 80, Appendix E (relating to test for determining Reid vapor pressure (RVP) of gasoline and gasoline-oxygenate blends).
* * * * *
Pittsburgh-Beaver Valley Area--The seven-county area comprised of the following Pennsylvania counties: Allegheny, Armstrong, Beaver, Butler, Fayette, Washington and Westmoreland.
* * * * *
RFG--Federal Reformulated Gasoline--Gasoline that meets the requirements for RFG as specified in 40 CFR Part 80 Subpart D (relating to reformulated gasoline).
RVP--Reid Vapor Pressure--The measure of pressure exerted on the interior of a special container as determined by the appropriate methodologies in 40 CFR Part 80, Appendix E.
* * * * *
CHAPTER 126. STANDARDS FOR MOTOR FUELS
Subchapter C. GASOLINE VOLATILITY REQUIREMENTS
126.301. Compliant fuel requirement. 126.302. Recordkeeping and reporting. 126.303. Compliance and test methods.
§ 126.301. Compliant fuel requirement.
(a) This subchapter applies to gasoline which is sold or transferred into or within the Pittsburgh-Beaver Valley area during the period May 1 through September 15, 1998, and continuing every year thereafter.
(b) A refiner, importer, distributor, reseller, terminal owner and operator or carrier, may not:
(1) Sell, exchange or supply gasoline that is not a compliant fuel during the period described in subsection (a).
(2) Blend, mix, store or transport or allow blending, mixing, storing or transporting of compliant fuel with noncompliant fuel during the period described in subsection (a).
(c) A retailer or wholesale purchaser-consumer may not sell, exchange or supply gasoline that is not a compliant fuel during the period June 1 through September 15, 1998, and continuing every year thereafter.
(d) If RFG is required by operation of Federal law to be sold in the Pittsburgh-Beaver Valley, this subchapter no longer applies after the date that RFG is required to be sold.
§ 126.302. Recordkeeping and reporting.
(a) Beginning with the terminal owner or operator who sells or transfers gasoline intended for use in the Pittsburgh-Beaver Valley area during the period described in § 126.301(a) (relating to compliant fuel requirement), each time the physical custody of or title to a shipment of gasoline changes hands, other than when gasoline is sold or transferred for use in motor vehicles at a retail outlet or wholesale purchaser-consumer's facility, the transferor shall provide to the transferee a copy of the record described in this subsection. This record shall legibly and conspicuously contain, at a minimum, the following information:
(1) The date of the sale or transfer.
(2) The name and address of the transferor.
(3) The name and address of the transferee.
(4) The location of the gasoline at the time of transfer.
(5) The volume of gasoline which is being sold or transferred.
(6) A statement or grade code certifying that the gasoline has an RVP of 7.8 pounds per square inch or less per gallon or is certified as RFG. If the gasoline is certified as RFG, each invoice, loading ticket, bill of lading, delivery ticket and other document that accompanies a shipment of RFG shall contain a statement from the refiner that certifies this fact.
(b) A person who transports, stores or sells compliant fuel that is intended for use in the Pittsburgh-Beaver Valley area during the period described in § 126.301(a), shall segregate the compliant fuel from noncompliant fuel and the documentation described in subsection (a) shall accompany the compliant fuel at all times.
(c) Each person in the gasoline distribution network shall maintain records containing the compliance information in subsection (a). These records shall be retained for at least 2 years from the date of the sale or transfer of compliant fuel.
§ 126.303. Compliance and test methods.
(a) Compliance with the 7.8 pounds per square inch RVP standard shall be determined by use of the sampling and testing methods specified in this section. Sampling or testing of gasoline required by this chapter shall be accomplished as follows:
(1) Sampling of gasoline for the purpose of determining compliance with this subchapter shall be conducted in accordance with 40 CFR Part 80, Appendix D (relating to sampling procedures for fuel volatility).
(2) Testing of gasoline for purposes of determining compliance with this rule shall be conducted in accordance with 40 CFR Part 80, Appendix E (relating to test for determining Reid vapor pressure (RVP) of gasoline and gasoline-oxygenate blend).
(b) RFG shall be certified and tested in accordance with 40 CFR Part 80, Subpart D (relating to reformulated gasoline).
CHAPTER 139. SAMPLING AND TESTING
Subchapter A. SAMPLING AND TESTING METHODS AND PROCEDURES
§ 139.4. References.
The references referred to in this subchapter are as follows:
* * * * *
(18) ''Sampling Procedures for Fuel Volatility,'' 40 CFR Part 80, Appendix D (relating to reformated gasoline).
(19) ''Tests for Determining Reid Vapor Pressure (RVP) of Gasoline and Gasoline-Oxygenate Blends,'' 40 CFR Part 80, Appendix E (relating to test for determining Reid vapor pressure (RVP) of gasoline and gasoline-oxygenate blends).
§ 139.14. Emissions of VOCs.
* * * * *
(b) The following are applicable to tests for determining the emissions of VOCs:
* * * * *
(8) Test methods for the determination of RVP in gasoline shall be in accordance with the procedures in 40 CFR Part 80, Appendix E (relating to test for determining Reid vapor pressure (RVP) of gasoline and gasoline-oxygenate blends).
[Pa.B. Doc. No. 97-1736. Filed for public inspection October 31, 1997, 9:00 a.m.]
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