Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Removal of Allegheny County Requirements Applicable to Gasoline Volatility in the Allegheny County Portion of the Pittsburgh-Beaver Valley Area |
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Cosmo Servidio
Environmental Protection Agency
5 July 2019
[Federal Register Volume 84, Number 129 (Friday, July 5, 2019)]
[Rules and Regulations]
[Pages 32076-32083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14258]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2019-0144; FRL-9996-04-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Removal of Allegheny County Requirements Applicable to
Gasoline Volatility in the Allegheny County Portion of the Pittsburgh-
Beaver Valley Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action approving a state implementation plan (SIP) revision submitted
by the Commonwealth of Pennsylvania, on behalf of the Allegheny County
Health Department (ACHD). The Pennsylvania Department of Environmental
Protection (PADEP) submitted a SIP revision on March 19, 2019 seeking
to remove from the Pennsylvania SIP an Allegheny County requirement
limiting summertime gasoline volatility in Allegheny County to 7.8
pounds per square inch (psi) Reid Vapor Pressure (RVP). The original
purpose of that gasoline requirement was to address nonattainment under
the 1-hour ozone national ambient air quality standard (NAAQS) in the
Pittsburgh-Beaver Valley ozone nonattainment area (hereafter
Pittsburgh-Beaver Valley Area). EPA acted in December 2018 to remove
similar 7.8 psi RVP requirements that applied to the entire Pittsburgh-
Beaver Valley Area, as the requirements are no longer needed to address
nonattainment in the area and have been supplanted by other emissions
control measures. This action serves to remove the separate comparable
requirement in the Pennsylvania SIP that applies only to Allegheny
County. The approval of this SIP revision is supported by the
demonstration prepared by Pennsylvania in support of the earlier SIP
revision. That demonstration shows that, pursuant to the Clean Air Act
(CAA), removal of the 7.8 psi RVP requirements from the SIP will not
interfere with the area's ability to attain or maintain any NAAQS, nor
will it be inconsistent with any other CAA requirements. EPA is
approving this revision to remove the ACHD requirements for use of 7.8
psi RVP gasoline in summer months from the Pennsylvania SIP, in
accordance with the requirements of the CAA.
DATES: This final rule is effective on July 5, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2019-0144. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly
[[Page 32077]]
available only in hard copy form. Publicly available docket materials
are available through https://www.regulations.gov, or please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section
for additional availability information.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
The telephone number is (215) 814-2176. Mr. Rehn can also be reached
via electronic mail at rehn.brian@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On April 26, 2019 (84 FR 17762), EPA published a notice of proposed
rulemaking (NPRM) for the Commonwealth of Pennsylvania proposing to
approve its revision to remove from the Pennsylvania SIP the ACHD
requirements for use of 7.8 psi RVP gasoline during summer months in
Allegheny County, Pennsylvania. The formal SIP revision requesting this
removal of the ACHD summertime low RVP program for the Pittsburgh-
Beaver Valley Area was submitted by PADEP, on Allegheny County's
behalf, on March 19, 2019. In the NPRM, EPA proposed to approve
Pennsylvania's request to remove the 7.8 psi RVP summertime gasoline
requirement in Allegheny County from the Pennsylvania SIP.
EPA received several adverse comments on the April 26, 2019
proposed rulemaking. EPA has addressed the public comments received on
this action below, in Section IV of this preamble. EPA is finalizing
approval of Pennsylvania's request to remove the ACHD 7.8 psi RVP
summer gasoline requirements applicable to Allegheny County from the
SIP and has concluded that doing so does not interfere with the
Pittsburgh-Beaver Valley Area's ability to attain or maintain any NAAQS
under section 110(l) of the CAA.
II. Summary of the Pennsylvania SIP Revision
A. Pennsylvania's Gasoline Volatility Requirements for the Pittsburgh-
Beaver Valley Area
On November 6, 1991, EPA designated and classified the Pittsburgh-
Beaver Valley Area as moderate nonattainment for the 1979 1-hour ozone
NAAQS. As part of Pennsylvania's efforts to bring the Pittsburgh-Beaver
Valley Area into attainment of the then applicable ozone NAAQS, the
PADEP and ACHD responded by adopting a range of ozone precursor
emission control measures for the area--including adoption of separate
state and Allegheny County rules to limit summertime gasoline
volatility to 7.8 psi RVP. While Pennsylvania's RVP control rule
applied to the entire Pittsburgh-Beaver Valley Area--Allegheny,
Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland
Counties--ACHD adopted a substantially similar rule applicable only in
Allegheny County.
Each of these overlapping RVP control rules was separately
submitted to EPA for inclusion in the Pennsylvania SIP. PADEP
promulgated its rule applicable to the entire Pittsburgh-Beaver Valley
Area in the November 1, 1997 Pennsylvania Bulletin (27 Pa.B. 5601,
effective November 1, 1997), codifying its rule at Subchapter C of
Chapter 126 of the Pennsylvania Code of Regulations (25 Pa. Code
Chapter 126, Subchapter C). Pennsylvania first submitted that rule for
inclusion in the Pennsylvania SIP on April 17, 1998, which EPA approved
on June 8, 1998 (63 FR 31116). The ACHD initially adopted its own
substantially similar summertime gasoline 7.8 psi RVP rule (applicable
only to Allegheny County) via Allegheny County Order No. 16782, Article
XXI, sections 2102.40, 2105.90, and 2107.15 (effective May 15, 1998,
amended August 12, 1999). On March 23, 2000, PADEP submitted this ACHD
rule to EPA for incorporation into the Pennsylvania SIP, which EPA
approved on April 17, 2001 (66 FR 19724), effective June 18, 2001.
B. PADEP and ACHD Actions To Suspend Low RVP Gasoline Requirements
In the 2013 through 2014 session, the Pennsylvania General Assembly
passed, and Governor Corbett signed into law, Act 50 (Pub. L. 674, No.
50 of May 14, 2014). Act 50 amended the Pennsylvania Air Pollution
Control Act, directing PADEP to initiate a process to obtain approval
from EPA of a SIP revision that demonstrates continued compliance with
the NAAQS, through utilization of substitute, commensurate emissions
reductions to offset the emissions reduction impact associated with
repeal of the Pittsburgh-Beaver Valley Area 7.8 RVP gasoline
requirement. Act 50 directs PADEP to repeal, upon EPA approval of its
NAAQS noninterference demonstration, the summertime gasoline RVP limit
provisions of 25 Pa. Code Chapter 126, Subchapter C.
On May 2, 2018, PADEP submitted a SIP revision to EPA requesting
removal from the Pennsylvania SIP of the state requirements of Chapter
126, Subchapter C of the Pennsylvania Code, based upon a demonstration
that the repeal of the RVP requirements rule (coupled with other ozone
precursor emission reduction measures) would not interfere with the
Pittsburgh-Beaver Valley Area's attainment of any NAAQS, per the
requirements for noninterference set forth in section 110(l) of the
CAA. Section 110(l) prohibits EPA from approving a SIP revision if the
revision ``would interfere with any applicable requirement concerning
attainment and reasonable further progress . . . or any other
applicable requirement of [the Act.]''
On December 20, 2018 (83 FR 65301), EPA approved Pennsylvania's May
2018 request to remove from the SIP PADEP's rules under 25 Pa. Code
Chapter 126 requiring 7.8 psi RVP gasoline during summer months in the
greater Pittsburgh-Beaver Valley Area. EPA's action also approved
Pennsylvania's CAA 110(l) NAAQS noninterference demonstration showing
that the emissions impact from repeal of the 7.8 psi gasoline
volatility requirements in the entire Pittsburgh-Beaver Valley Area
(including Allegheny County) is offset by means of substitution of
commensurate emissions reductions from other measures enacted by
Pennsylvania. Upon the effective date of EPA's December 2018 action,
Allegheny County remained subject to ACHD's 7.8 psi RVP summer gasoline
limits, while the remainder of the Pittsburgh-Beaver Valley Area became
subject to Federal 9.0 RVP summer gasoline limits.
ACHD subsequently revised its own 7.8 psi RVP rule (codified at
Article XXI, Sec. Sec. 2105.90 and 2107.15 of the Rules and
Regulations of the Allegheny County Health Department; amended February
21, 2019, effective March 3, 2019) to suspend applicability of ACHD's
7.8 psi RVP summer gasoline requirements. This ACHD Article XXI rule
revision established its effective date as the date of EPA's removal of
the revised Article XXI sections from the Allegheny County portion of
the Pennsylvania SIP. On March 19, 2019, PADEP submitted this SIP
revision (on behalf of ACHD) to EPA to request removal of the ACHD's
RVP rule requirements from the Pennsylvania SIP. It is this March 2019
request to remove the ACHD RVP program requirements from the SIP that
is the subject of EPA's current rulemaking action.
[[Page 32078]]
III. EPA's Analysis of Pennsylvania's SIP Revision
A. Pennsylvania's Estimate of the Impacts of Removing the 7.8 psi RVP
Requirement
EPA's primary consideration for determining the approvability of
Pennsylvania's request (on behalf of ACHD) to remove the County
requirements for a gasoline volatility control program from its SIP is
whether this requested action complies with section 110 of the CAA, and
specifically with section 110(l), governing removal of an EPA-approved
SIP requirement.\1\ Section 110(l) of the CAA prohibits EPA from
approving any SIP revision if such revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the CAA. An earlier Pennsylvania SIP revision submitted
to EPA on May 2, 2018 included a ``noninterference demonstration''
explaining how the removal of the 7.8 psi RVP requirement would not
interfere with attaining or maintaining any NAAQS in the entire
Pittsburgh-Beaver Valley Area, including Allegheny County.
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\1\ CAA section 193, with respect to removal of requirements in
place prior to enactment of the 1990 CAA Amendments, is not relevant
because Pennsylvania's RVP control requirements in Allegheny County
(or even the entire Pittsburgh-Beaver Valley Area) were not included
in the SIP prior to enactment of the 1990 CAA amendments.
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EPA evaluates each section 110(l) noninterference demonstration on
a case-by-case basis considering the circumstances of each SIP
revision. EPA interprets CAA section 110(l) as applying to all NAAQS
that are in effect, including those that have been promulgated, but for
which EPA has not yet made designations. In evaluating whether a given
SIP revision would interfere with attainment or maintenance, as
required by CAA section 110(l), EPA generally considers whether the SIP
revision will allow for an increase in actual emissions into the air
over what is allowed under the existing EPA-approved SIP. In the
absence of an attainment demonstration or maintenance plan that
demonstrates removal of an emissions control measure will not interfere
with any applicable NAAQS or requirement of the CAA under section
110(l), states may substitute equivalent emissions reductions to
compensate for any change to a SIP-approved program, with the purpose
of providing that the status quo air quality is preserved.
As discussed in the NPRM for this action, for removal of the
Allegheny County low-RVP requirement from the SIP, PADEP and ACHD
relied upon the existing CAA 110(l) noninterference demonstration that
was prepared in support of PADEP's May 2, 2018 SIP revision approved by
EPA in December 2018. Because EPA had already acted on that
demonstration applicable to removal of 7.8 psi RVP gasoline in the
entire Pittsburgh-Beaver Valley Area, EPA did not completely reconsider
the content and findings of that demonstration with respect to removal
in this action of ACHD's similar rule applicable only to Allegheny
County. EPA's review of the Commonwealth's analysis is contained in the
docket for EPA's prior action (published December 20, 2018 (83 FR
65301)) to remove the PADEP 7.8 psi RVP program from the Pittsburgh-
Beaver Valley Area. Based on our review of the information provided,
EPA found that PADEP used reasonable methods and the appropriate tools
(e.g., emissions estimation models, emissions factors, and other
methodologies) in estimating the effect on emissions from removing the
7.8 psi RVP summertime gasoline program for the purpose of
demonstrating noninterference with any NAAQS under CAA 110(l).
The result of the analysis was that with the substituted measures,
the entire Pittsburgh-Beaver Valley Area will experience lower levels
of ozone pollution precursors of volatile organic compounds (VOCs) and
nitrogen oxides (NOX), and of fine particulate matter
smaller than 2.5 microns (PM2.5), with the substitute
measures in place than it would with continued operation of the 7.8 psi
RVP program in the area. In reviewing ACHD's March 2019 submittal, EPA
considered whether there was any new circumstances or information since
the May 2018 demonstration submitted by PADEP that would cause EPA to
reconsider whether the prior analysis was still valid. Neither EPA nor
the commenters identified any such changes in circumstances which would
invalidate the May 2018 demonstration analysis.
EPA concludes that the Commonwealth's May 2018 demonstration
supporting removal of the PADEP low-RVP rule (which covered the entire
Pittsburgh-Beaver Valley Area from the SIP, including Allegheny County)
continues to show that removal of state and local 7.8 RVP gasoline
requirements will not interfere with the attainment or maintenance of
any NAAQS in the area. Thus, the removal of the 7.8 psi low RVP fuel
program requirements in the Allegheny County portion of the Pittsburgh-
Beaver Valley Area does not interfere with Pennsylvania's ability to
demonstrate compliance with any NAAQS. Based on the May 2018 PADEP CAA
110(l) noninterference analysis approved by EPA and reevaluated by EPA
in this action (which is included as a supporting element of the March
2019 SIP revision), EPA concludes that the current action to remove the
7.8 psi RVP fuel requirement in Allegheny County will not negatively
impact the Pittsburgh-Beaver Valley Area's ability to attain or
maintain any NAAQS or interfere with reasonable further progress or
with any other CAA applicable requirement.
IV. Response to Comments Received During the Public Comment Period on
the NPRM
EPA received comments from six separate commenters on our April 26,
2019 (84 FR 17762) proposed action. One of these commenters was
supportive of EPA's proposed action, while the rest opposed at least
some aspects of our proposed rulemaking. EPA's summary of the
significant adverse comments received during the public comment period
for the proposed rulemaking and our responses to those comments are
listed below.
Comment 1: (EPA-R03-OAR-2019-0144-0020) The commenter notes that
EPA granted a federal ``preemption waiver'' under section 221 (sic)
(Title II) of the CAA but does not explain why that waiver is now being
revoked. The commenter contends that EPA is on a march to deregulate
and remove CAA protections to make sure areas such as Pittsburgh don't
(sic) violate Federal VOC and ozone standards. The commenter recommends
that EPA disapprove the Commonwealth's request to remove the Allegheny
County 7.8 psi RVP program from the SIP until the preemption waiver is
resolved. The commenter suggests that if a preemption waiver is no
longer warranted, EPA must formally remove the preemption waiver from
the SIP before EPA can remove the County low-RVP gasoline program from
the SIP.
Response 1: EPA believes the commenter is referring to exclusive
federal control over the regulation of fuels and fuel additives granted
by section 211 of the CAA. Specifically, CAA section 211(c)(4)(A)
preempts state fuel controls that are different from federal fuel
controls and provides exceptions to exclusive federal regulation that
include a waiver of preemption. Under CAA section 211(c)(4)(A), states
(or political subdivisions thereof) are generally prohibited from
prescribing, for purposes of motor vehicle emission control, any
control of a component of
[[Page 32079]]
a fuel or fuel additive for use in a motor vehicle engine. However,
under CAA section 211(c)(4)(C), a state may regulate fuel or fuel
additives if it adopts such a measure as part of a SIP, but EPA may
only approve such a program into a SIP after finding that the state or
local control is necessary to achieve a primary or secondary NAAQS and
if there are no other measures that would bring about timely
attainment. Section 211(c)(4)(C)(i). EPA waived preemption and approved
the Commonwealth's SIP requiring use of 7.8 psi RVP gasoline during
summer months in the Pittsburgh-Beaver Valley Area (including Allegheny
County) in two separate SIP revisions in 1998 and 2001.\2\ It is the
2001 SIP approval requiring the use of low-RVP fuel in the Allegheny
County portion of the Pittsburgh-Beaver Valley Area that the County is
now seeking to remove from the SIP. On April 26, 2019 (84 FR 17764),
EPA proposed to approve the County request to remove the use of low-RVP
fuel in the Allegheny County portion of the Pittsburgh-Beaver Valley
Area from the SIP. As explained earlier, EPA approval of a state fuel
measure entails the waiver of preemption contained in CAA
211(c)(4)(C)(i). Under this provision, EPA may approve state fuel
controls in a SIP if EPA determines that the fuel control is necessary
to achieve the NAAQS that the SIP implements.
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\2\ On June 8, 1998 (63 FR 31116), EPA approved a SIP revision
(submitted December 3, 1997; as revised April 17, 1998) by PADEP to
require the use of 7.8 psi RVP gasoline in summer months in the 7-
county Pittsburgh-Beaver Valley 1-hour ozone nonattainment area. On
April 17, 2001 (66 FR 19724), EPA approved a SIP revision (submitted
March 23, 2000) by PADEP, on behalf of ACHD, to require the use of
7.8 psi RVP gasoline in summer months in the Allegheny County
portion of the same 1-hour ozone nonattainment area. EPA's rationale
for granting a federal preemption waiver under CAA 211(c)(4)(C) is
explained in the June 8, 1998 final rule, with the same rationale
serving as the basis for the April 17, 2001 final rule.
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In sum, the Agency is required to consider CAA section 211(c)(4)(C)
requirements when approving a state or local fuel control program that
would serve in lieu of the otherwise applicable Federal fuel control
program. EPA can only waive preemption if the requirements of CAA
section 211(c)(4)(C)(i) and (v) are met. Nothing in these provisions,
however, preclude either a state or local government from subsequently
removing an approved state fuel measure.\3\ Thus, there is no
requirement for a ``waiver'' to remove the 7.8 psi RVP requirement from
either the Allegheny County portion or the Pennsylvania portion of the
SIP. Instead, as shown in Section III of this rulemaking action,
Allegheny County or Pennsylvania need only comply with CAA section
110(l) given that the removal of 7.8 psi RVP requirement entails a SIP
revision. As previously explained, CAA section 110(l) prohibits EPA
from approving any SIP revision if such revision would interfere with
any applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the CAA.
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\3\ See for e.g., SIP revision for the removal of 7.0 psi RVP
from the state of Alabama SIP. 77 FR 23619 (April 20, 2012).
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The 7.8 psi state and local rules were cited as control measures
that contributed to ozone reduction in Pennsylvania's April 9, 2001
maintenance plan supporting the Commonwealth's request for
redesignation to attainment of the 1979 1-hour ozone NAAQS, which EPA
approved on October 19, 2001 (66 FR 53094). In that same final rule,
EPA determined that the Pittsburgh-Beaver Valley Area had attained the
1-hour ozone NAAQS by its legal attainment deadline, based on three
years of air quality data. On the basis of that determination, EPA
found that an attainment demonstration (and other related requirements
under Part D of Title I of the CAA) were not applicable requirements
under the CAA for the Pittsburgh-Beaver Valley 1-hour ozone
nonattainment area. The Commonwealth's reasonable further progress plan
for the Pittsburgh-Beaver Valley Area was prepared prior to adoption of
the 7.8 psi RVP rule, and therefore did not include reductions from
that measure to demonstrate progress towards achievement of the NAAQS.
Therefore, EPA believes the only requirement that must be satisfied
prior to removing an EPA approved state or local fuel control measure
are the provisions of CAA section 110 related to SIP actions--and
specifically the required showing that EPA approval of a revision to
the SIP does not interfere with any applicable requirement concerning
attainment and reasonable further progress towards attainment, or other
applicable CAA requirement.
Comment 2: (EPA-R03-OAR-0144-0016) The commenter contends that in
the proposed action, EPA certifies that the action does not have a
significant economic impact on a substantial number of small entities,
but that comments submitted by Sunoco LLC during the County's rule
adoption asserted that the rule revision will ``have economic
advantages to both citizens and businesses of the Pittsburgh-Beaver
Valley area.'' The commenter asks how EPA can certify that the action
has no significant economic impact if one of the nation's largest oil
producers emphasized the economic savings and asks to see EPA's
analysis showing that removal of the program does not significantly
impact small entities.
Response 2: EPA does not agree that it is required to assess the
economic impact of approving Allegheny County's request to remove the
low-RVP gas requirement from the Allegheny County portion of the
Pennsylvania SIP. As explained in the introductory sentences to the
Statutory and Executive Order Reviews section of the NPRM:
Under the Clean Air Act, the Administrator is required to
approve a SIP submission that complies with the provisions of the
Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR
52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the
Clean Air Act. Accordingly, this action merely approves state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason,
this action:
. . .
is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
84 FR 17762, 17767 (April 26, 2019).
EPA's approval of the State's request to remove from the SIP the
requirement to use low-RVP gasoline in Allegheny County merely approves
an enacted state law (ACHD's removal of the low-RVP requirement from
Allegheny County's regulations) as meeting the Federal CAA requirements
and does not impose any additional requirements beyond those already
imposed by state law. For this reason, EPA's action in approving this
SIP revision does not have a significant impact under the Regulatory
Flexibility Act.
Comment 3: (EPA-R03-OAR-0144-0016) The commenter contends that EPA
failed to require a noninterference demonstration for the revoked 1-
hour ozone NAAQS. The commenter argues that PADEP's noninterference
demonstration (prepared by PADEP as part of its April 2018 SIP
revision, supporting removal of both State and County low-RVP gasoline
rules from the SIP) contains photochemical grid modeling that addresses
only the 2008 8-hour ozone NAAQS and not the prior, revoked 1-hour
ozone NAAQS. The commenter argues that because the 1-hour ozone
standard is based on a substantially different averaging time and
exceedance framework than the 8-hour NAAQS, EPA must ensure that
[[Page 32080]]
removal of an area-wide requirement (low-RVP fuel) is protective, as
EPA claims.
Response 3: The Commonwealth's CAA 110(l) demonstration focused on
demonstrating that current air quality can be maintained for all NAAQS
without continuation of the existing 7.8 psi RVP gasoline control
measure. The basis for the Commonwealth's demonstration is through
substitution of equivalent or greater reductions in primarily VOC and
NOX emissions from other measures to offset the VOC and
NOX reductions that would no longer be achieved upon removal
of the 7.8 psi RVP gasoline control measure.
In evaluating whether a SIP revision would interfere with
maintenance or attainment, EPA generally considers whether the SIP
revision will allow for an increase in actual emissions into the air
over what is allowed under the existing EPA-approved SIP. In assessing
compliance with CAA section 110(l), EPA treats each submission as a
unique case, reviewing and acting upon each one on a case-by-case basis
through regional SIP action. However, EPA did broach the subject of
compliance with CAA 110(l) noninterference in guidance prepared
specifically for removal of another control measure, entitled
``Guidance on Removing Stage II Gasoline Vapor Control Programs from
State Implementation Plans and Assessing Comparable Measures,'' August
7, 2012 [EPA-457/B-12-001]. Therein, EPA stated that it could propose
to approve a SIP revision that removes or modifies a control measure if
there is a basis in the state's submittal for concluding that the SIP
revision does not interfere with attainment or maintenance of any NAAQS
or requirements related to reasonable further progress towards
attainment of a NAAQS. Suggested methods listed in that guidance
document for demonstrating noninterference include: (1) Substitution of
new control measures that offset the reductions of the pollutants
addressed by the prior plan; (2) offset of emissions due to excess
emission reductions not accounted for in the current SIP; or (3)
emissions increases that are shown not to interfere with attainment.
Pennsylvania has demonstrated that the emission reductions achieved by
the 7.8 low RVP gasoline program have been offset by emission reduction
measures not previously quantified or claimed in the approved SIP, and
EPA approved the Commonwealth's noninterference demonstration for the
entire Pittsburgh-Beaver Valley Area as part of our December 20, 2018
final rule approving the Commonwealth's removal of the PADEP 7.8 psi
low-RVP control measure from the SIP (a measure that applied to the 7-
county Pittsburgh-Beaver Valley Area, including Allegheny County).
As the commenter noted, the 1-hour ozone NAAQS was revoked by EPA
under the Agency's requirements for implementation of the 1997 ozone
NAAQS. 40 CFR 50.9(b), 62 FR 38894 (July 18, 1997), 69 FR 23951, 23969
(April 30, 2004). The 1-hour ozone NAAQS was no longer applicable in
the Pittsburgh-Beaver Valley Area as of June 15, 2005. We need not
consider whether this SIP revision interferes with the revoked 1-hour
NAAQS. By definition, a revision cannot interfere with something that
is no longer in effect, such as a revoked NAAQS. EPA has dealt with the
anti-backsliding concerns related to revoked NAAQS by promulgating
regulations to address that issue. Thus, so long as the anti-
backsliding requirements in the ozone-requirements rule are met,
further demonstration of noninterference under 110(l) are not
necessary.
Comment 4: (EPA-R03-OAR-0144-0016) The commenter asks why EPA would
remove a measure that achieves VOC reductions for a county that EPA has
designated nonattainment for the 2012 PM2.5 NAAQS, when VOC
reductions could help the area attain the PM2.5 NAAQS,
because VOCs can be precursors to PM2.5 formation. The
commenter contends that EPA should not allow Allegheny County to remove
the low-RVP gasoline program from the SIP until it has been shown that
the area is able to meet the PM2.5 NAAQS without the
additional VOC reductions achieved by this rule.
Response 4: Section 110(l) of the CAA prohibits EPA from approving
a plan revision '' . . . if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress, . . . or any other applicable requirement of this chapter.''
In this SIP revision, EPA believes that the noninterference
demonstration submitted by PADEP for the entire Pittsburgh-Beaver
Valley Area does show that the small emission increase of VOCs
resulting from removal of the low-RVP gasoline requirement are more
than offset by reductions in VOC emissions from the shutdown of the
Guardian Glass facility and the adoption of new limits on solvents,
paints and adhesive adopted by Pennsylvania. In EPA's guidance on
removing stage II gasoline vapor recovery controls, EPA lays out
several alternative means of assessing noninterference. Therein, EPA
specifically states, ``In evaluating whether a given SIP would
interfere with attainment or maintenance, . . . EPA generally considers
whether the SIP revision will allow for an increase in actual emissions
into the air over what is allowed under the existing EPA-approved SIP.
The EPA has not required that a state produce a new, complete
attainment demonstration for every SIP revision, provided that the
status quo air quality is preserved. See, e.g., Kentucky Resources
Council, Inc, v. EPA, 467 F.3d 986 (6th Cir. 2006).\4\''
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\4\ See p. 4, ``Guidance on Removing Stage II Gasoline Vapor
Recovery Control Program from SIPs and Assessing Comparable
Measures,'' (April 7, 2012) [EPA-457/B-12-001].
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Pennsylvania has demonstrated noninterference with all NAAQS
through primarily an emissions substitution approach, using methods
prescribed by EPA guidance under section 110(l) of the CAA. EPA
approved Pennsylvania's CAA section 110(l) noninterference
demonstration for the entire Pittsburgh-Beaver Valley Area (including
Allegheny County) on December 20, 2018 (83 FR 65301).
Comment 5: (EPA-R03-OAR-2019-0144-0021) Commenter notes that in
Pennsylvania's prior SIP revision requesting removal of the state's
low-RVP gasoline rule applicable to the Pittsburgh-Beaver Valley Area,
PADEP stated that it wished to retain any remaining balance of
creditable emission reductions from the permanent closure of the
Guardian Industries glass manufacturing facility located in Allegheny
County, Pennsylvania. However, EPA's proposed approval of this prior
SIP action states that no remaining balance of credits would be held by
the state, and EPA's final action did not address whether the remaining
balance of creditable emission reductions were forfeited or retained by
Pennsylvania. The commenter requests that EPA clarify whether the
remaining balance of emission reductions are retained by Pennsylvania
for future use and quantify how many remain and/or are forfeited, so
that there is no future double counting of these emissions reductions.
Response 5: EPA received a similar comment in response to our
proposal to approve removal of PADEP's 7.8 psi RVP gasoline program
from the non-Allegheny County portions of the Pittsburgh-Beaver Valley
Area.\5\ In our final December 2018 rulemaking for the Pittsburgh-
Beaver Valley Area 7.8 psi RVP program SIP removal action, EPA
clarified that emission reduction from Guardian Glass closure remained
available. The Guardian Glass facility permanently ceased operation in
August 2015 but did not request that potentially
[[Page 32081]]
creditable emission reductions be preserved in the emission inventory
within one year of closure, which is a prerequisite for their use as
emission reduction credits (ERCs) for nonattainment new source review
(NNSR) purposes under Pennsylvania's rules governing that program (25
Pa. Code 127.207(2)). As a result, the reductions are no longer
eligible for future use as ERCs for NNSR offset purposes, but they
remain available for other uses. As EPA stated in our December 20, 2018
final rule, because these surplus emission reductions no longer qualify
as ERCs under Pa. Code Chapter 127, Subchapter E, EPA believes they do
not need to be memorialized in either a state plan approval, or a SIP
revision or emission inventory. The facility's permits are no longer
valid, and reactivation of the facility would be subject to NNSR and
re-permitting.
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\5\ See 83 FR 27901, June 15, 2018.
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However, that does not mean that these remaining emission
reductions from closure of this facility have no use. PADEP reserved
the right to request consideration of these reductions for future use
for other SIP planning purposes other than NNSR offsets--potentially as
part of a future demonstration relating to NAAQS planning requirements.
Any such future use would require a SIP revision at that time, with a
demonstration of the emission reductions viability for use in any
future SIP revision. Although PADEP quantified the remaining reductions
that are surplus after offsetting removal of the low-RVP gasoline
program, the surplus reduction quantities listed in EPA's December 20,
2018 SIP action are not directly translatable to any future SIP
planning use. Any future use of the remaining emission reductions would
need to be reevaluated as part of a subsequent SIP action supporting
their potential use at that time for SIP planning purposes.
EPA does not agree that it must quantify the remaining surplus or
the amount that should be forfeited as part of this action. EPA has
clarified its position that these reductions can no longer be used for
NNSR offset purposes under the relevant state rule. EPA cannot
memorialize the remaining emission reductions potentially available for
future SIP purposes as the reductions must be re-evaluated in the
context of the specific SIP action for which the Commonwealth wishes to
use the reductions.
Comment 6: (EPA-R03-OAR-2019-0144-0019) The commenter argues that
EPA and Allegheny County have not provided an adequate demonstration
that removal of the low-RVP gasoline program will not interfere with
attainment of the PM2.5 NAAQS, because VOCs are a precursor
to formation of ambient PM2.5. The commenter contends that
PADEP should perform modeling regarding the impacts of the removal of
the RVP requirement, rather than simply comparing overall emissions
increases and decreases of VOCs. Commenter claims that the submitted
noninterference analysis only compares the magnitude of emissions
reductions from the 2015 shutdown of the Guardian Industries facility
and reductions from a regulation for control of VOCs from adhesives,
sealants, primers, and solvents, promulgated by DEP, to the magnitude
of the emissions increases from discontinuation of the low-RVP
requirement. The commenter notes that Allegheny County has continued to
be in nonattainment with the PM2.5 standards despite the
fact that the reductions in emissions relied upon by PADEP's analysis
occurred prior to 2016. Commenter believes this continued nonattainment
despite the reductions from earlier shutdowns and regulatory changes
means the Department should be looking more closely at local impacts
from regulatory initiatives rather than offsetting emissions at
different locations.
Response 6: EPA is not evaluating the adequacy of the state's
separate, ongoing efforts to develop an appropriate attainment area
plan for the 2012 PM2.5 NAAQS for the Allegheny County
nonattainment area in this action. The commenter's concerns with
respect to the modeling and monitoring analyses contained in the
state's draft PM2.5 attainment plan are not relevant to
EPA's action to remove the 7.8. psi RVP rule from the SIP, and as such
do not warrant consideration in this final rule. As indicated in
response to a prior comment, in evaluating whether a SIP revision
(e.g., removal of an existing rule from the SIP) would interfere with
attainment or maintenance of a NAAQS, per CAA section 110(l), EPA
generally considers whether the SIP revision will allow for an increase
in actual emissions in the air over what is allowed under the existing
approved SIP, in an attempt to ensure that the status quo with regard
to air quality is maintained. The EPA has not required that a state
produce a new complete attainment demonstration for every SIP revision,
provided that the status quo air quality is preserved.\6\
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\6\ See p. 4, ``Guidance on Removing Stage II Gasoline Vapor
Recovery Control Program from SIPs and Assessing Comparable
Measures,'' (April 7, 2012) [EPA-457/B-12-001].
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EPA has reviewed the Commonwealth's noninterference demonstration
for this action to remove the 7.8 psi RVP rule from the Pennsylvania
SIP and determined that the provided analysis shows that the emissions
from removal of that rule have been fully offset by substitute
reductions in VOCs and NOX from other measures not already
in the approved SIP, and this analysis included consideration of the
PM2.5 NAAQS.\7\ EPA believes that it would be inappropriate
to evaluate the removal of the ACHD low-RVP rule from the SIP in this
action premised upon the potential approvability of the County's
proposed Allegheny County PM2.5 attainment plan, as that
plan is currently out for public comment by the County and may change
in response to any comments received before it is formally submitted to
EPA as a SIP revision. EPA is not evaluating the adequacy of the
state's separate ongoing efforts to develop an appropriate attainment
plan for the 2012 PM2.5 NAAQS for the Allegheny County
nonattainment area in this action. Further, the commenter's concern
with respect to the modeling and monitoring analyses contained in the
Commonwealth's draft PM2.5 attainment plan is not relevant
to EPA's action to remove the 7.8. psi RVP rule from the SIP, and as
such do not warrant consideration in this final rule.
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\7\ See Table 8 (p. 23) of PADEP's ``Final State Implementation
Plan Revision to Remove Pittsburgh-Beaver Valley Area Summertime Low
Reid Vapor Pressure Gasoline Volatility Requirements and Supporting
Noninterference Demonstration Under Section 110(l) of the Clean Air
Act'' dated April 2018, which summarizes direct PM2.5 (as
well as VOC and NOX) emission reductions from offsetting
measures. The PADEP noninterference demonstration also discusses the
Commonwealth's evaluation of PM2.5 noninterference on pp.
25-26 of that document.
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Therefore, EPA is not directly addressing the merits of these
comments in this action and recommends that the commenter submit its
comments to the County during the County's current administrative
process and also during any future action EPA may take on that plan
after the state formally submits the ultimate plan to EPA as a SIP
revision. ACHD intends to submit to EPA a PM2.5 attainment
plan which will address the PM2.5 issue. The proper place to
evaluate how to achieve PM2.5 attainment is in response to
that plan.
Comment 7: The commenter contends that PADEPs approach of direct
substitution of emissions of pollutants with reductions associated with
other measures is inadequate to ensure that there is no increase in
ambient pollution concentrations from such an approach, and that
ambient concentration
[[Page 32082]]
modelling is warranted to ensure NAAQS noninterference or other CAA
requirements, such as potential impact on regional haze.
Response 7: While ambient concentration modeling is necessary for
an attainment plan, it is not necessary to demonstrate attainment for
purposes of amending the SIP to remove a rule. As was discussed in
response to a prior comment, noninterference is the only CAA required
test for removal of a rule that is not mandatory under the CAA, nor an
applicable Part D measure mandated by the law. In demonstrating
noninterference under CAA 110(l), ambient concentration modeling to
show the impact of the removal of a rule is but one possible test of
noninterference--albeit not a required one. Direct substitution of
other measures that achieve equivalent emissions reductions to offset
the removed measure is an allowable method of demonstrating CAA 110(l)
noninterference.
Comment 8: (EPA-R03-OAR-2019-0144-0149) The commenter contends that
removal of the low-RVP requirements may affect the control strategy for
the PM2.5 attainment demonstration. The commenter claims
that PADEP should strengthen its control strategy to reduce
concentrations of fine particulates presenting harm to individuals
rather than finessing attainment by ignoring data at the Liberty
monitor through mis-interpretation of an EPA guidance document. Among
other things, that control strategy could include the continuation of
the RVP requirements, depending on the results of a proper factual
analysis.
Response 8: EPA believes that this comment should be addressed to
ACHD's proposed attainment plan for the 2012 PM2.5 NAAQS for
Allegheny County, rather than to this action to remove the ACHD low-RVP
measure from the SIP. The PM2.5 attainment plan is currently
undergoing the County's public comment process and has not yet been
formally submitted to EPA as a SIP revision. As such, this comment
should be submitted during ACHD's public comment period for the
PM2.5 attainment plan. Concerns raised by the commenter with
respect to whether the area has actually attained the PM2.5
standard or done so in a timely manner, or whether ACHD has followed
EPA guidance related to the monitoring or modeling analyses that
underlie that demonstration, are not relevant to EPA's current action
regarding whether to approve the Commonwealth's request for removal the
7.8. psi RVP gasoline rule from the SIP.
Comment 9: Commenter claims the PM2.5 Attainment
Demonstration is flawed because it relies on unrepresentative
meteorological data from the base year 2011 (p.4). Commenter alleges
that the 2011 meteorological data contains the second lowest number of
inversions (134) in a year, which is lower than the typical number of
inversions in the last ten years (157). Also, commenter states that
PADEP's claim that the 2011 data is more representative of normal years
because the Pittsburgh area has had above normal temperatures and above
normal levels of precipitation in ``recent years'' is not supported by
the data.
Response 9: As explained above, this comment concerns the
PM2.5 attainment demonstration, rather than this SIP action,
and EPA will therefore not address this comment here because it is
beyond the scope of this rulemaking action.
Comment 10: Commenter claims that future emissions inventories for
the proposed attainment demonstration may not be complete and accurate
because RVP 7.8 psi compliant fuel was burned in the past but will not
be burned in the future and it is not clear how or whether VOC
emissions from the higher RVP fuels that will be burned in the future
are tracked or accounted for in the future emission inventory. Some
stationary sources have stored fuel with varying RVP, ranging from 7
psi to 13 psi. See Appendix D (Emissions Inventories) to Proposed
Attainment Demonstration. At a minimum, there is a factual question
regarding the degree to which the removal of the RVP requirements will
affect the formation of fine particulates.
Response 10: Because this comment is questioning how the removal of
low-RVP fuel will affect the emissions inventory for the
PM2.5 attainment demonstration, EPA believes it should be
submitted as a comment on that plan. EPA believes it would be more
appropriate to respond to this comment, if submitted as a comment on
any action EPA proposes on ACHD's PM2.5 attainment plan, in
the context of responding to comments on that plan.
V. Impacts on the Boutique Fuels List
Section 1541(b) of the Energy Policy Act of 2005 required EPA, in
consultation with the U.S. Department of Energy, to determine the
number of fuels programs approved into all SIPs as of September 1, 2004
and to publish a list of such fuels. On December 28, 2006 (71 FR
78192), EPA published the list of boutique fuels. EPA maintains the
current list of boutique fuel programs on its website at: https://www.epa.gov/gasoline-standards/state-fuels. The final list of boutique
fuels was based on a fuel type approach. CAA section
211(c)(4)(C)(v)(III) requires that EPA remove a fuel from the published
list if it is either identical to a Federal fuel or is removed from the
SIP in which it is approved. Under the adopted fuel type approach, EPA
interpreted this requirement to mean that a fuel would have to be
removed from all states' SIPs in which it was approved in order to
remove the fuel type from the list. (71 FR 78195, December 28, 2006).
The 7.8 psi RVP fuel program is a fuel type that is included in
EPA's boutique fuel list (published at 71 FR 78198, December 28, 2006,
and maintained online at: https://www.epa.gov/gasoline-standards/state-fuels). Subsequent to the final effective date of EPA's approval of
Pennsylvania's March 19, 2019 SIP revision to remove the ACHD rule
under Article XXI, EPA will update the State Fuels and Gasoline Reid
Vapor Pressure web pages with the effective date of the SIP removal. At
that time, the entry for Pennsylvania will be deleted from the list of
boutique fuels, because Allegheny County was the final remaining 7.8
psi RVP program area in the Commonwealth of Pennsylvania. However, the
boutique fuels list will retain the 7.8 psi RVP fuel type, as this fuel
program type continues to be in other state SIPs.
VI. Final Action and Effective Date
A. Final Action
EPA is approving Pennsylvania's March 19, 2019 SIP revision
requesting the removal of ACHD's 7.8 psi RVP summer gasoline program
for Allegheny County (under Article XXI of the Rules and Regulations of
the Allegheny County Health Department; amended February 21, 2019,
effective March 3, 2019) from the Pennsylvania SIP. Our approval of the
March 19, 2019 SIP revision is being taken in accordance with CAA
requirements in section 110.
B. Notice of Effective Date
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. EPA is
issuing this final rule under CAA section 307(d)(1) which states: ``The
provisions of section 553 through 557 . . . of Title 5 shall not,
except as expressly provided in this subsection, apply to actions to
which this subsection applies.'' Thus, section 553(d) of the APA does
not apply to this rule. EPA is nevertheless acting consistently with
the policies
[[Page 32083]]
underlying APA section 553(d) in making this rule effective on July 5,
2019. APA section 553(d) allows an effective date less than 30 days
after publication for a rule ``that grants or recognizes an exemption
or relieves a restriction.'' 5 U.S.C. 553(d)(1). This rule fits within
that exception because it lifts a restriction on the introduction into
commerce of gasoline with an RVP of greater than 7.8 psi sold in
Allegheny County, Pennsylvania between June 1 and September 15 of each
year. Because ACHD adopted this rule in February 2019 (just prior to
the commencement of the May 1 regulatory compliance deadline requiring
use of low-RVP fuel in the Summer 2019 fuel season) and then submitted
the rule to EPA in March 2019, EPA's final action will coincide with
the summer low-RVP compliance period, resulting in supply chain
uncertainty for affected gasoline refining, distribution, and retail
industries. Additionally, the effective date for ACHD's revocation of
the low-RVP gasoline requirement is based upon EPA's final rulemaking
effective date, creating further industry uncertainty with respect to
regulatory compliance in the time prior to EPA's final rule effective
date. Therefore, this action can be considered to relieve a restriction
that would otherwise prevent the introduction into commerce of gasoline
with an RVP of greater than 7.8 psi. By setting the effective date of
this action to the date of final rule publication, EPA could alleviate
potential supply disruption that might occur due to the timing of this
action during the 2019 summer fuel control season. Therefore, EPA is
making this action to remove the Allegheny County program from the
Pennsylvania SIP effective on July 5, 2019.
VII. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided they meet the criteria of the CAA. Accordingly, this action
merely approves state law as meeting Federal requirements and does not
impose additional requirements beyond those imposed by state law. For
that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
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 action 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).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 3, 2019. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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 to approve Pennsylvania's request for removal of summer
season 7.8 psi RVP gasoline requirements for Allegheny County from the
SIP 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,
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: June 24, 2019.
Cosmo Servidio,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
Sec. 52.2020 [Amended]
0
2. In Sec. 52.2020, the table in paragraph (c)(2) is amended by
removing:
0
a. The subheading entitled ``Subpart 9--Transportation Related
Sources'' and the entry ``2105.90''; and
0
b. Under ``Part G--Methods'' the entry ``2107.15''.
[FR Doc. 2019-14258 Filed 7-3-19; 8:45 am]
BILLING CODE 6560-50-P