RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 121, 126 AND 139]
Gasoline Volatility Requirements--Low Reid Vapor Pressure
[29 Pa.B. 5089]
The Environmental Quality Board (Board) amends Chapters 121, 126 and 139 (relating to general provisions; standards for motor fuels; and sampling and testing) to read as set forth in Annex A. The amendments eliminate the use of Federal reformulated gasoline (RFG) as a compliant fuel in the Pittsburgh-Beaver Valley area during the ozone season. The amendments also provide that compliance records shall be kept onsite for all points in the distribution network except at retail facilities. Retail facilities are required to retain compliance records onsite for the correct ozone season only. Inaddition, the amendments make a technical language correction relating to sampling procedures. The Board approved the final amendments at its July 20, 1999, 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 Air Resource Management, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-4310; or R. A. Reiley, 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 rulemaking is available electronically through the Department of Environmental Protection's (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 eliminate the use of RFG as a compliant fuel in the Pittsburgh-Beaver Valley Area during the ozone season. Because of concerns with implementation of the existing regulation as it relates to RFG, the Department is eliminating the RFG provisions. Since refiners and marketers have been supplying low Reid vapor pressure (RVP) gasoline during the ozone season, these amendments will have minimal practical consequences. While this low RVP gasoline is more stringent than the Federal requirement, it is necessary because it is part of a comprehensive plan for the Pittsburgh area to attain and maintain the National health-based standard for ground level ozone. These amendments also require that compliance records be kept onsite for all points in the distribution network except at retail facilities. Retail facilities are required to retain compliance records onsite for the correct ozone season only. Finally, these amendments also correct the technical language relating to sampling procedures.
These amendments were submitted to and approved by the Air Quality Technical Advisory Committee (AQTAC) and the Small Business Assistance Program Compliance Advisory Committee.
E. Summary of Comments
There were four commentators to the proposed rulemaking.
One commentator supported the move to require all gasoline sold in the Pittsburgh area to comply with the RVP standard of 7.8 pounds per square inch (psi).
The Board appreciates the support for this rule change.
All of the commentators believed that requiring facilities to keep records onsite for 2 years imposes additional and unnecessary recordkeeping on the regulated community. The commentators requested that the regulation be changed to allow records for retail facilities to be stored elsewhere and that the records could be provided when requested within a short lead time. Another commentator proposed that the regulation be amended to require that records be kept onsite only during the current ozone season and that records be retained after that at a designated location for the remainder of the 2-year retention period.
While the Board understands that there may be space limitations at some facilities, the requirement to maintain records onsite at points in the distribution chain is essential for enforcement of the program. A lapse in time between an inspection and the receipt of pertinent records would seriously hinder the effectiveness of the program, especially when a violation of the volatility standard is discovered. Therefore, to retain the ability to conduct effective inspections, the Board will not make the suggested change. The Board does not agree that the onsite recordkeeping requirement places unnecessary burdens on every point in the distribution network; however, the Board does believe that the requirement to keep records onsite for 2 years could place unnecessary burdens on retail facilities that have limited space onsite. Therefore, the rule will be amended to require retail stations to keep the records onsite only during the current compliance period (June 1st through September 15th). The records then may be moved to an alternate location for the remainder of the 2-year retention period.
One commentator believed it is unnecessary to require terminals to be held to a compliance date of May 1st for low RVP fuel. The commentator recommended the terminal compliance date be changed to May 15th which will provide adequate time to ensure that all retail stations are turned over to 7.8 psi RVP by June 1st. The program start and end dates are not proposed to be changed because the Board believes that May 1st is the appropriate starting date.
When the proposed clean fuels program for the Pittsburgh area was originally published on May 3, 1997, the Board received eight separate comments detailing the importance of setting the compliance dates to be consistent with the dates in the Federal summertime volatility program (May 1st start date at the terminal level, June 1st start date at the retail stations, and September 15th as the end date). The Board agreed with the need for consistency with the Federal volatility program and the rule was revised accordingly. The Board does not believe it appropriate to change any of these dates in light of the number of comments received in response to the May 3, 1997, proposal. Furthermore, it is likely that members of the public and the regulated community did not comment again on this issue because the program start and end dates were not proposed to be changed.
One commentator states that the requirement to have gasoline with an RVP of 7.8 psi at the terminal level by May 1st contradicts the Federal requirement to have 9.0 psi RVP gasoline at terminals by the same date. The commentator believed that the Commonwealth has not demonstrated in its State Implementation Plan (SIP) the need for an RVP level in May that is more stringent than the Federal standard to achieve the National Ambient Air Quality Standard (NAAQS) for ozone. In addition, the commentator believed that unusual supply disruptions may occur if the Commonwealth's program dates are not in line with the Federal program.
The program start and end dates were not proposed to be changed because the Board believes that the proposed dates are the appropriate dates. Under section 211(c)(4)(A) of the Federal Clean Air Act, states are preempted from prescribing a control regarding a fuel characteristic that is not identical to the Federal requirement. However, under section 211(c)(4)(C), the UnitedStates Environmental Protection Agency (EPA) is authorized to grant a state a waiver of this preemption if the state control is necessary to achieve the NAAQS.
The Commonwealth requested the necessary waiver, and on June 8, 1998, the EPA published a direct final rule in the Federal Register proposing to grant the Commonwealth that waiver under the Clean Air Act. No negative comments were received, and a waiver was granted to the Commonwealth effective on July 23, 1998. This waiver allows the use of fuel with an RVP standard more stringent than the Federal requirement in the Pittsburgh ozone nonattainment area. This same EPA action finalized approval of the Commonwealth low RVP program distribution schedule that requires terminals to be fully converted to 7.8 psi RVP fuel by May 1st and retail and wholesale purchaser-consumer facilities to be converted to 7.8 psi RVP fuel by June 1st. Consequently, this approved SIP revision is now Federal law. Since this SIP revision was approved by the EPA, it is not subject to review at the State level as the commentator suggests.
The comment that unusual supply disruptions may occur if the suggested change is not made is unwarranted. Low RVP fuel was required in the Pittsburgh ozone nonattainment area at the terminal level beginning on May 1, 1998, and at retail stations by June 1, 1998, and no unusual supply or price disruptions were reported. The program ran smoothly by all accounts and the compliance rate was extremely high.
F. Summary of the Regulatory Revisions
The Board deletes the definition for the term ''RFG--Federal Reformulated Gasoline'' and eliminates RFG from the term ''compliant fuel.'' The Board also eliminates references to RFG in §§ 126.301--126.303 (relating to compliant fuel requirement; recordkeeping and reporting; and compliance and test methods). In addition, the Board clarifies the record retention requirements in § 126.302 that records shall be kept onsite for all points in the distribution network except at retail facilities. Retail facilities are required to retain compliance records onsite for the current ozone season only. Finally, the Board corrects technical language in § 139.4(18) (relating to references).
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the amendments.
There are no increased costs to the regulated community as a result of these amendments. Since low RVP gasoline is already required in the area, there will be no additional cost to the public or to local or State governments. Low RVP gasoline on average is 2¢ per gallon less than RFG gasoline. In addition, the vast majority of stations already use low RVP gasoline in place of RFG gasoline.
Compliance Assistance Plan
The Board 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 are no additional recordkeeping and reporting costs for an entity that sells or transfers gasoline intended for use in the seven county Pittsburgh-Beaver Valley Area during the ozone season.
H. Sunset Review
These final-form regulations will be reviewed in accordance with the Sunset Review schedule published by the Board to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 8, 1998, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(c) 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. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Committees on August 23, 1999. IRRC met on September 9, 1999, and deemed approved the final-form regulations in accordance with section 5.1(e) of the Regulatory Review Act.
J. 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 in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 28 Pa. B. 4792 (September 26, 1998).
(4) These final-form regulations are necessary and appropriate for administration and enforcement of authorizing acts defined in Section C of this Preamble and are reasonably necessary to achieve and maintain the NAAQS for ozone.
K. Order of the Board
The Board, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121, 126 and 139, are amended by amending §§ 121.1, 126.301--126.303 and 139.4 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 of the Board 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.
JAMES M. SEIF,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 5032 (September 25, 1999).)
Fiscal Note: Fiscal Note 7-341 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:
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Compliant fuel--Low RVP gasoline.
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RACT--Reasonably Available Control Technology--The lowest emission limit for VOCs or NOx that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.
RFP--Reasonable Further Progress--The annual incremental reduction in emissions of an air contaminant as required by section 172(c)(2) of the Clean Air Act (42 U.S.C.A. § 7502(c)(2)), for the purpose of ensuring attainment of the applicable NAAQS by the applicable statutory deadline.
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CHAPTER 126. STANDARDS FOR MOTOR FUELS
Subchapter C. GASOLINE VOLATILITY REQUIREMENTS
§ 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.
§ 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 requirements), 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.
(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 listed in subsection (a). These records shall be retained for at least 2 years from the date of the sale or transfer of compliant fuel.
(d) The records containing the compliance information in subsection (a) for the period described in subsection (c) shall be kept onsite at each point in the distribution network except for retail outlets. Retail outlets shall retain these records for the period described in subsection (c) and only those records for the current period described under § 126.301(c) shall be kept onsite. At the end of each period described under § 126.301(c), these records may be transferred to an alternate location for the remainder of the period described under subsection (c) and be made available to the Department upon request.
§ 126.303. Compliance and test methods.
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).
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 sampling procedures for fuel volatility).
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[Pa.B. Doc. No. 99-1663. Filed for public inspection October 1, 1999, 9:00 a.m.]
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