Approval and Promulgation of Air Quality Implementation Plans; Reformulated Gasoline and Diesel Fuels; California, 26653-26662 [2010-11005]
Download as PDF
<![CDATA[
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
Dated: April 28, 2010.
L. Barndt,
Captain, U.S. Coast Guard, Captain of the
Port, Sector Lake Michigan.
[FR Doc. 2010–11265 Filed 5–11–10; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2009–0344; FRL–9112–7]
Approval and Promulgation of Air
Quality Implementation Plans;
Reformulated Gasoline and Diesel
Fuels; California
I. Summary of Proposed Actions
WReier-Aviles on DSKGBLS3C1PROD with RULES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule approves state
implementation plan (SIP) revisions
submitted by the State of California on
June 15, 2004 and February 3, 2009,
relating to reformulated gasoline (RFG)
and diesel fuel sold or supplied as
motor vehicle fuels in California. The
revisions relating to RFG include
California Phase 3 RFG (CaRFG3)
regulations, correction of errors and
streamlined requirements for
compliance with and enforcement of the
CaRFG3 standards, and an update to the
State’s predictive model to mitigate
permeation emissions associated with
the use of ethanol as a fuel additive. The
revisions relating to diesel fuel include
test methods for determining the
aromatic hydrocarbon content in diesel
fuel and reductions in the maximum
allowable sulfur content for motor
vehicle diesel fuel. The effect of today’s
action is to make these revisions
federally enforceable as part of the
California SIP.
DATES: This final rule is effective June
11, 2010.
ADDRESSES: EPA has established a
docket for this action under EPA–R09–
OAR–2009–0344. The index to the
docket for this action is available
electronically at https://
www.regulations.gov and in hard copy
at EPA Region IX, 75 Hawthorne Street,
San Francisco, California. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information the
disclosure of which is restricted by
statute. Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Buss, EPA Region IX, (415) 947–
4152, buss.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
On July 10, 2009 (74 FR 33196), EPA
proposed to approve revisions to the
California regulations for reformulated
gasoline (RFG) sold or supplied in
California, as submitted on June 15,
2004 and February 3, 2009, and
revisions to the regulations for diesel
fuel sold or supplied in California, as
submitted on February 3, 2009, as
revisions to the California SIP. On July
21, 2009 (74 FR 35838), EPA issued a
correction to the proposed approval and
on August 11, 2009 (74 FR 40123), EPA
extended the comment period on the
proposed approval to August 31, 2009.
For a detailed discussion of the rule
revisions that California submitted,
please refer to EPA’s proposed rule and
Technical Support Document which can
be found in the docket for this
rulemaking.
II. EPA’s Response to Comments
We received one comment letter on
August 31, 2009 from the Center on
Race, Poverty & the Environment (CRPE
or ‘‘the commenter’’) on behalf of the
Association of Irritated Residents,
´
´
Comite West Goshen, Comite Unido de
´
Plainview, Comite Residentes
Organizados al Servicio del Ambiente,
Committee for a Better Arvin, La Nueva
Esperanza deAlpaugh, El Quinto Sol de
America, South Shafter Project
Committee, Shafter Chapter League of
United Latin American Citizens, United
for a Change in Tooleville, and La Voz
de Tonyville.
We have summarized the comments
and provided responses below.
Comment 1: CRPE stated that EPA
must determine that CaRFG3 is
enforceable before approving the SIP
revision. Specifically, the commenter
asserted that EPA is inappropriately
relying on a federal RFG enforcement
exemption granted in 2005 to support
its conclusion that the CaRFG3
amendments to the SIP satisfy the
requirements of CAA section 110(a).
The commenter summarized portions
of the rationale EPA provided in our
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
26653
proposed approval (74 FR 33198), and
stated that ‘‘EPA must evaluate the final
rule to determine whether the rule is
enforceable under § 110(a), not whether
the rule is equivalent in practice to
federal requirements.’’ The commenter
asserted that EPA has neither ‘‘made the
requisite finding that the provisions are
enforceable,’’ nor ‘‘made the case that
equivalence in practice to federal
requirements constitutes enforceability
for the purposes of § 110(a).’’
Response 1: Section 110(a)(2)(A) of
the CAA requires that each SIP include
‘‘enforceable emission limitations and
other control measures, means, or
techniques * * * as may be necessary
or appropriate to meet the applicable
requirements of this chapter.’’ See also
CAA section 172(c)(6) (requiring
enforceable measures in nonattainment
area plans). EPA has stated in
interpretive guidance that to be
enforceable in practice, a measure must
‘‘specify clear, unambiguous, and
measurable requirements’’ and must
include a legal means to ensure that
sources are in compliance.1 For
example, an enforceable SIP regulation
must clearly spell out the requirements,
the regulated sources or activities, the
recordkeeping and monitoring
requirements, and test procedures to
determine whether sources are in
compliance.2 We continue to believe
that the revisions to the California RFG
regulations that we are approving today
satisfy these enforceability requirements
of CAA section 110(a).
First, as the commenter notes, in 2005
EPA exempted refiners, blenders and
importers of CaRFG3 sold for use within
California from certain enforcement
provisions in the Federal RFG
regulations found at 40 CFR 80.81
(CaRFG3 enforcement exemption).3 EPA
granted this enforcement exemption
following a determination that the
CaRFG3 regulations and associated
enforcement mechanisms were
sufficient to ensure that producers of
California gasoline would in fact meet
the CaRFG3 standards, which in turn,
would ensure compliance with the
Federal Phase II RFG standards.4 EPA’s
1 ‘‘State Implementation Plans; General Preamble
for the Implementation of Title I of the Clean Air
Act Amendments of 1990,’’ 57 FR 13498 at 13568
(April 16, 1992) (General Preamble).
2 Id. at 13502.
3 70 FR 75914 (December 21, 2005).
4 EPA made three determinations to support the
enforcement exemption: (1) That emission
reductions from CaRFG3 would be equal to or
greater than the emission reductions from Federal
Phase II RFG standards; (2) that the content
standard for benzene in CaRFG3 would be
equivalent in practice to the Federal Phase II RFG
standard and that the oxygen content standard of
E:\FR\FM\12MYR1.SGM
Continued
12MYR1
26654
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
rationale for the exemption was
consistent with the analyses we used
when we previously granted
enforcement exemptions to refiners,
importers, and blenders of California
Phase 2 gasoline (CaRFG2) under both
the Federal Phase I and Phase II RFG
programs.5
Specifically, EPA determined in those
prior actions that it was appropriate to
exempt producers of California gasoline
from certain sampling and testing,
recordkeeping, and reporting provisions
in the Federal RFG regulations that deal
solely with demonstrating compliance
with the Federal RFG standards.6 EPA
found that these Federal enforcement
provisions were duplicative and
unnecessary, because the California RFG
program was sufficiently stringent and
enforceable to ensure compliance with
the Federal standards.7 Thus, following
a determination that the CaRFG3
regulations would provide emission
benefits equivalent to the Federal Phase
II RFG program, EPA extended the
enforcement exemptions at 40 CFR
80.81 to refiners, importers, and
blenders of CaRFG3.8
As noted in our proposal for this
action, CARB’s compliance and
enforcement program has not changed
significantly since we made our 2005
finding regarding its adequacy.9 Thus,
2.0 weight percent would be met in Federal RFG
areas; and (3) that the California Air Resources
Board (CARB) compliance and enforcement
program is sufficiently rigorous to ensure that
Federal Phase II RFG requirements would be met
in practice. 74 FR 33196 at 33198 (July 10, 2009);
70 FR 75914 at 75918 (December 21, 2005). See also
69 FR 48827 at 48832 (August 11, 2004).
5 69 FR 48827 at 48829 (August 11, 2004)
(proposed rule to extend California enforcement
exemptions to CaRFG3). EPA had previously
exempted gasoline subject to California’s Phase 2
RFG regulations (CaRFG2) from certain enforcement
requirements under the Federal Phase I RFG
program. See 59 FR 7813 (February 16, 1994); 63
FR 34818 (June 26, 1998). These enforcement
exemptions expired on December 31, 1999, but EPA
continued the exemptions beyond that date
following a determination that the CaRFG2
regulations would provide emission benefits
equivalent to the Federal Phase II RFG program. 64
FR 49992 (September 15, 1999). The 2005 action
extended these California enforcement exemptions
to CaRFG3.
6 58 FR 11745 at 11749 (February 26, 1993).
7 58 FR 11745 at 11746, 11749 (February 26,
1993).
8 69 FR 48827 at 48832 (August 11, 2004); 70 FR
75914 at 75918 (December 21, 2005). Note that the
CaRFG3 enforcement exemptions do not excuse
producers of California gasoline from Federal RFG
standards, but rather exempt them only from certain
enforcement requirements designed to demonstrate
compliance with the Federal RFG standards. EPA
retains its authority to sample and test California
gasoline to make sure that it meets all applicable
Federal standards. 58 FR at 11746 (February 26,
1993); 69 FR 48827 at 48832 (August 11, 2004).
9 74 FR at 33198 (July 10, 2009). We also
reviewed CARB’s most recent annual enforcement
report, which indicates that fuels inspection and
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
we believe that the analyses underlying
the CaRFG3 enforcement exemption
support our conclusion that the CaRFG3
regulations are enforceable, consistent
with the requirements of CAA section
110(a).
Moreover, many of the regulatory
revisions that we are approving today
improve the enforceability of
California’s RFG program. For example,
CARB amended the Predictive Model
Procedures 10 to, among other things,
update the motor vehicle emissions
inventory vehicle mix, update the
reactivity adjustment factors, and add
new motor vehicle exhaust emissions
test data.11 These revised modeling
procedures, which become effective
December 31, 2009,12 improve the
reliability of emission predictions for
alternative gasoline specifications
subject to CaRFG3 standards.
Additionally, the CaRFG3 standards
in 13 CCR section 2262 lower the sulfur
content cap limit from 30 parts per
million (ppm) to 20 ppm starting
December 31, 2011.13 Cap limits 14
provide an upper limit for fuel
properties for all compliance options
and allow for enforcement of the
requirements throughout the gasoline
distribution system.15 According to
CARB’s staff report for the 2007
revisions to the CaRFG3 program (CARB
Staff Report), refiners will generally not
be able to produce complying gasoline
with sulfur limits higher than 20 ppm—
that is, any gasoline found as having a
sulfur content of greater than 20 ppm
will most likely be non-complying
enforcement cases have slightly increased in recent
years. Id. at fn. 12.
10 The California ‘‘Predictive Model Procedures’’
are used to determine whether the emissions of a
gasoline meeting alternative specifications will be
equivalent to the emissions of a gasoline that meets
CaRFG3 specifications. CARB most recently
amended the Predictive Model Procedures on
August 7, 2008. See ‘‘California Procedures for
Evaluating Alternative Specifications for Phase 3
Reformulated Gasoline Using the California
Predictive Model,’’ CARB, Amended August 7,
2008, at pg. 4; 13 CCR section 2265.
11 See ‘‘Staff Report: Initial Statement of Reasons,
Proposed Amendments to California Phase 3
Gasoline Regulations,’’ CARB, Stationary Source
Division, April 27, 2007 (CARB Staff Report), at pp.
15–20.
12 13 CCR section 2265.
13 The declining sulfur content cap and associated
compliance requirements are described more
specifically in section 2261(b)(1)(A).
14 A ‘‘cap limit’’ is ‘‘a limit that applies to all
California gasoline throughout the gasoline
distribution system, in accordance with 13 CCR
sections 2262.3(a), 2262.4(a), and 2262.5(a) and (b).’’
California Procedures for Evaluating Alternative
Specifications for Phase 3 Reformulated Gasoline
Using the California Predictive Model, last amended
April 25, 2008, at pg. 8 (definitions).
15 See CARB Staff Report, Executive Summary, at
pg. ix.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
gasoline.16 The sulfur content cap limit
of 20 ppm enables CARB to enforce
against producers or importers of any
gasoline exceeding this level of sulfur,
which will cover most non-complying
gasoline formulations.17
Finally, several test method
requirements have been updated. For
example, the new test method for
measuring olefins in fuel using
supercritical fluid chromatography
(SFC) is significantly more precise than
the previous method, which was based
on manual measurements of olefin
content in fuel.18 The new test method
for measuring the distillation
temperature of RFG adopts the updated
American Society of Testing and
Materials (ASTM) standard, which
corrects errors in the test method’s
precision statements and requires a
temperature sensor centering device.
These updates improve the accuracy of
the temperature readings.19
In sum, we believe that the analyses
underlying the CaRFG3 enforcement
exemption and our review of updates to
the compliance provisions and test
methods in the CaRFG3 program
demonstrate that the CaRFG3
regulations are practically enforceable,
consistent with the requirements of
CAA section 110(a).
Comment 2: The commenter asserted
that CaRFG3 is not enforceable because
the Predictive Model is neither in the
SIP nor part of this SIP revision.
Specifically, the commenter asserted
that ‘‘CARB produced the CaRFG3
Predictive Model as a way to predict
whether various RFG compositions, or
recipes, will result in acceptable
emissions when used in motor
vehicles,’’ and that ‘‘[t]he CaRFG3
program and resulting emission
reductions depend entirely on the
Predictive Model.’’ The commenter
stated that in order for CaRFG3 to be
enforceable, its requirements must be
clearly spelled out, and that these
requirements are contained within the
Predictive Model. The commenter also
asserted that in order for the CaRFG3
emissions reductions to be creditable to
16 According to CARB, sulfur levels in CaRFG3
currently average about 10 ppmw, with 95 percent
of production being below 18 ppmw. See ‘‘Final
Statement of Reasons for Rulemaking Including
Summary of Comments and Agency Responses,’’
CARB, June 14, 2007 (CARB FSOR) at pg. 17.
17 See ‘‘Updated Information Digest: 2007
Amendments to the Phase 3 California
Reformulated Gasoline Regulations,’’ CARB
[undated]; see also CARB Staff Report, at pp. ix, 35.
18 See ‘‘Staff Report: Initial Statement of Reasons,
Public Hearing to Consider Amending the Test
Methods Designated for Determining Olefin Content
and Distillation Temperatures of Gasoline,’’ CARB,
September 29, 2000, at pg. 2.
19 Id. at 4.
E:\FR\FM\12MYR1.SGM
12MYR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
attainment or Reasonable Further
Progress (RFP) demonstrations, the
Predictive Model must be included in
the SIP.
Finally, the commenter asserted that
this argument is ‘‘not merely a symbolic
procedural argument’’ and that SIP
approval of the Predictive Model
‘‘ensures that CARB does not change the
model, perhaps unwittingly or even
underhandedly weakening it, without
first subjecting any such change to EPA
scrutiny under § 110(l).’’ The commenter
reiterated its assertion that EPA has not
made the necessary determination that
the submitted SIP revisions are
enforceable.
Response 2: We are approving the
Predictive Model Procedures into the
California SIP as part of this action.
CARB initially submitted the Predictive
Model Procedures to EPA on June 15,
2004, and submitted revisions on
February 3, 2009. The Predictive Model
Procedures are incorporated by
reference into the CaRFG3 regulations,20
which require that producers or
importers of gasoline comply with the
Predictive Model Procedures in
evaluating whether gasoline meeting
alternative specifications in lieu of
CaRFG3 specifications will achieve
equivalent emission reductions.21 See
also Response 1 and footnote 10, above
(describing CARB’s updates to the
Predictive Model Procedures). We
believe that our approval of the
Predictive Model Procedures into the
SIP addresses the commenter’s concerns
about the enforceability of the CaRFG3
program, in addition to the crediting of
CaRFG3 emissions reductions to
attainment or Reasonable Further
Progress (RFP) demonstrations.
Comment 3: The commenter stated
that EPA had failed to adequately
evaluate whether the proposed SIP
revisions satisfy the requirements of
CAA section 110(l). Specifically, the
commenter asserted that EPA’s analysis
did not adequately support the Agency’s
conclusion that the proposed revisions
do not interfere with applicable
requirements concerning attainment and
RFP, or other applicable requirements.
The commenter asserted that EPA’s
proposal contained ‘‘the same
conclusory statement for both the
CaRFG3 and diesel fuel rules that,
‘because the submitted SIP revisions
strengthen the requirements of the
approved SIP, EPA has determined that
approval of these regulations is
consistent with CAA section 110(l).’ 74
FR 33198–33199.’’ The commenter
20 See
13 CCR sections 2260(a)(8.5), 2260(a)(19.7),
and 2265(a)(2).
21 13 CCR section 2265(a)(2).
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
noted that EPA had provided more
detailed analyses in its Technical
Support Document (TSD) but stated that
in several cases, EPA had not provided
the requisite section 110(l) analysis.
For example, the commenter stated,
EPA’s proposed approval of section
2261(b)(7) of title 13, California Code of
Regulations (CCR) was not addressed in
EPA’s TSD or supported by an adequate
section 110(l) analysis. The commenter
stated that ‘‘EPA proposes to approve
§ 2261(b)(4), (5), and (6) because they do
not affect emission reductions, but does
not provide the same conclusion for
§ 2261(b)(7).’’
As a second example, the commenter
stated that EPA’s TSD did not address
the increase of the maximum denaturant
content from 4.76% to 5.00% as set
forth in 13 CCR section 2262.9. The
commenter stated that EPA had
identified changes to this provision as
‘‘non-substantive clarifying changes,’’
but that increasing the allowable
denaturant content is a ‘‘substantive
non-clarifying change.’’ The commenter
asserted that EPA’s failure to consider
the potential interference of these
changes with applicable requirements is
arbitrary and capricious.
Response 3: Section 110(l) of the CAA
states that EPA ‘‘shall not approve a
revision of a [SIP] if the revision would
interfere with any applicable
requirement concerning attainment and
reasonable further progress * * * or any
other applicable requirement of [the
Act].’’ 42 U.S.C. 7410(l). As explained in
the TSD for our proposal, most of the
CaRFG3 program revisions are either
improvements or minor clarifications
that will not affect emissions. To the
extent that some substantive changes
may result in increased emissions, as
explained further below, we believe
these potential emissions increases are
offset by other substantial program
improvements that reduce emissions
and therefore, considered together, will
not interfere with any applicable
requirement concerning attainment of
the National Ambient Air Quality
Standards (NAAQS), RFP, or any other
applicable requirement of the Act.22
First, as to the commenter’s assertion
that EPA did not adequately evaluate 13
CCR section 2261(b)(7) in the CaRFG3
regulations, we have evaluated this
provision and concluded that our
approval of it satisfies section 110(l)
requirements. Section 2261(b)(7)
contains a temporary measure that
allows gasoline producers and importers
22 We note also that California Health & Safety
Code § 43013.1 requires that the CaRFG3
regulations preserve the emissions and air quality
benefits of the CaRFG2 program.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
26655
that comply with the revised Predictive
Model Procedures prior to their effective
date 23 to blend higher volumes of
denatured ethanol into California
Reformulated Blendstock for Oxygenate
Blending (CARBOB) than the amount
specified by the common carrier
pipeline specifications.24 CARB adopted
this provision as an early compliance
measure, to temporarily allow for some
flexibility to increase denatured ethanol
blending provided the resulting gasoline
meets all emission reduction
requirements calculated in accordance
with the revised Predictive Model
Procedures.25 As such, even during the
early compliance period, section
2261(b)(7) does not allow for
exceedances of existing emission
standards and, therefore, does not
interfere with any applicable
requirement concerning attainment,
RFP, or any other applicable
requirement of the Act.26
Moreover, this temporary measure
expires on December 31, 2009, after
which the rule requires compliance
with the revised Predictive Model
Procedures and prohibits blending any
higher volume of denatured ethanol into
CARBOB than the amount specified by
the common carrier pipeline
specification.27 Because our approval of
these revised regulations will not
become effective until after this early
compliance measure has expired, our
approval of this provision has no effect
on emissions and will not interfere with
applicable requirements under CAA
section 110(l).
Second, as to the commenter’s
assertion that EPA did not adequately
evaluate the increase in maximum
allowed denaturant 28 content from
23 The updates to the Predictive Model
Procedures, which become effective December 31,
2009, were the most significant of the recent
revisions to the CaRFG3 program. 13 CCR section
2265; CARB Staff Report at 1. See also fn. 10, supra.
24 A producer or importer may elect to blend
higher volumes of ethanol into CARBOB under
section 2261(b)(7) only if the producer or importer
satisfies numerous notification, recordkeeping, and
reporting requirements to ensure that all emission
reduction requirements are met. 13 CCR section
2261(b)(7); see also CARB FSOR at pg. 4.
25 See 13 CCR section 2261(b)(7)(B)(1); CARB
FSOR at pg. 4.
26 We note also that the SIP-approved California
RFG regulations do not regulate the composition of
denatured ethanol that can be blended with
CARBOB to produce CaRFG. See 13 CCR §§ 2260–
2262.1 (adopted September 18, 1992); 60 FR 43383
(August 21, 1995). Use of denatured ethanol as an
oxygenate in California gasoline became more
widespread following California’s prohibition of
MTBE in California gasoline starting December 31,
2003. 13 CCR section 2262.6.
27 13 CCR sections 2261(b)(7)(A), 2265.
28 A denaturant is added to ethanol to ensure that
it cannot be ingested, and to allow for ethanol to
be transported and handled as an industrial fluid
E:\FR\FM\12MYR1.SGM
Continued
12MYR1
26656
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
4.76% to 5.00% under 13 CCR section
2262.9, we have evaluated this
provision also and concluded that it
satisfies section 110(l) requirements.
California’s SIP-approved RFG program
does not contain any limit on the
volume of denaturant that may be
blended with gasoline.29 As such, the
addition of this limit to the SIP program
does not interfere with any applicable
requirement concerning attainment of
the NAAQS or any other applicable
requirement of the Act. Additionally,
we note that this change was designed
to align the CaRFG3 program with the
current ASTM standards and does not
alter any emission reduction
requirements.30
Finally, the CaRFG3 regulations were
specifically designed to mitigate the
increases in evaporative emissions
(referred to as ‘‘permeation’’ 31) from onroad vehicles resulting from the
addition of ethanol to gasoline.32 The
CARB Staff Report states that the
revised CaRFG3 program would
‘‘eliminate or offset all ethanol
permeation effects from motor vehicles
and a significant portion of the
permeation effect from off-road
applications.’’ 33 Although the proposed
revisions were not expected to fully
mitigate the emissions impact of the
increase in permeation emissions from
off-road sources, these relatively small
emission increases are outweighed by
the significant reductions in emissions
from on-road sources, together with the
updated compliance provisions that
improve the enforceability of the
program, as discussed above in
Response 1. As such, the CaRFG3 rule
revisions do not interfere with any
applicable requirement concerning
attainment or RFP, or any other
applicable requirement of the Act,
consistent with CAA section 110(l).
Comment 4: The commenter asserted
that EPA’s approval of the ‘‘offsetting
rather than a controlled substance subject to
regulation by the Bureau of Alcohol Tobacco and
Firearms. See CARB Staff Report at pg. 40.
29 See 13 CCR section 2262 (adopted September
18, 1992); 60 FR 43383 (August 21, 1995). See also
fn. 26, supra.
30 The 4.76% denaturant limit in the pre-2007
CaRFG3 regulations was based on earlier versions
of the ASTM standard specification for denatured
fuel ethanol for blending with gasoline (ASTM
04806–99). See CARB Staff Report at pg. 40.
31 The Federal Complex Model at 40 CFR 80.45
does not take permeation emissions from ethanol
use into account.
32 See 13 CCR section 2262.6; CARB Staff Report,
Executive Summary, pp. i, xviii. Starting December
31, 2003, the CaRFG3 regulations prohibited
California gasoline produced with MTBE and
placed a conditional ban on the use of any
oxygenate other than ethanol as a replacement for
MTBE in California gasoline. Id. at ii.
33 Id. at xvii, xviii.
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
emissions associated with higher sulfur
levels’’ compliance option would violate
CAA section 110(l). The commenter
stated that the ‘‘averaging option’’ in
section 2265.1 allows for fuel that does
not comply with CaRFG3 to be averaged
with cleaner batches of gasoline—i.e.,
that it allows for noncompliant fuel to
be sold and the excess pollution from
use of such noncompliant fuel to be
offset with credits from cleaner batches
from that facility. The commenter
asserted that ‘‘EPA proposes to approve
this provision with one sentence of
analysis,’’ despite a relatively complex
compliance scheme. Specifically, the
commenter raised three concerns about
this provision:
First, the commenter stated that
attainment and RFP demonstrations rely
on transportation emission inventories
based on CaRFG3 compliant fuel, and
that the ‘‘averaging option’’ may interfere
with these demonstrations by allowing
producers or importers to produce
noncompliant fuel during the ozone
season (May–October) and ‘‘offset the
deficit’’ up to three months later.
Second, the commenter stated that
attainment and RFP demonstrations
relying on CaRFG3 emission reductions
could be compromised because there is
no geographic requirement for the
‘‘credit’’ fuel to be used in the same
airshed as the noncompliant fuel.
Third, the commenter stated that the
rule allows for tripling the allowable
sulfur content of certain fuels, from 10
ppm up to the Federal 30 ppm sulfur
standard, which could result in
substantial increases in emissions.
Response 4: We disagree and believe
that our approval of the ‘‘offsetting’’
compliance option referenced by the
commenter, and in particular section
2265.1, is consistent with the
requirements of CAA section 110(l).
Section 2265.1 contains detailed
requirements for the offsets that must be
achieved by a producer or importer who
elects to comply with the ‘‘[Predictive
Model] emissions offsetting compliance
option’’ under section 2264.2(d) (‘‘PM
offset option’’). The PM offset option is
available only to producers and
importers that meet specified criteria 34
and essentially allows for the
production or importation of highersulfur batches of gasoline provided the
emission impacts of the higher-sulfur
batch are fully mitigated through
subsequent cleaner batches of gasoline
at the same facility.35 The PM offset
34 For example, the producer or importer must not
be subject to any outstanding requirements to
provide offsets at the same production facility or
import facility under section 2264(c). 13 CCR
section 2264.2(d)(1)(E).
35 13 CCR section 2265.1.
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
option provides gasoline producers and
importers some flexibility in meeting
the 20 parts per million by weight
(ppmw) sulfur content flat limit in the
CaRFG3 regulations,36 which is lower
than the Federal sulfur content limit of
30 ppm 37 and became effective on
December 31, 2003.38
Specifically, section 2265.1(a)
contains detailed notification, reporting,
and recordkeeping requirements that
enable CARB to ensure that the
increased emissions from higher-sulfur
batches permitted under the PM offset
option are in fact fully mitigated. For
example, subsection (a)(2)(A) requires
that a producer or importer electing to
use the PM offset option provide to the
Executive Officer in writing, before the
start of physical transfer of the gasoline
from the production or import facility,
specific information about, among other
things: the percent change in emissions
values for NOX, total ozone forming
potential, and potency-weighted toxics
for the targeted alternative fuel
specifications; the production facility or
import facility name, batch name, blend
identity, grade of California gasoline,
and location (with sufficient specificity
to allow CARB inspectors to locate and
sample the gasoline); the designated
emissions offsetting limit for Reid vapor
pressure, sulfur content, benzene
content, aromatics content, olefins
content, and other fuel characteristics;
and within 24 hours after the start of the
physical transfer, the date and time of
the start of physical transfer from the
production or import facility. This
information enables CARB to identify
who is blending fuels with elevated
sulfur levels, how much is being
blended, the potential air pollution
impacts of the elevated sulfur level, and
the specific time that the physical
transfer of the gasoline from the
production or import facility is
completed.39
Then, within 90 days after the start of
physical transfer of such higher-sulfur
gasoline, the producer or importer who
has elected to comply with the PM
36 13 CCR section 2262. A ‘‘flat limit’’ is ‘‘a single
limit for a fuel property that applies to all California
gasoline sold or supplied from a California
production facility or import facility.’’ CARB,
California Procedures for Evaluating Alternative
Specifications for Phase 3 Reformulated Gasoline
Using the California Predictive Model, last amended
April 25, 2008, at pg. 8 (definitions).
37 40 CFR 80.195(a)(1).
38 CARB, Final Regulation Order, ‘‘Amendments
to the California Reformulated Gasoline Regulations
to Postpone Imposition of the CaRFG3 Standards
and the Prohibition of MTBE and Oxygenates Other
Than Ethanol in California Gasoline from December
31, 2002 to December 31, 2003,’’ Adopted November
8, 2002, at 13 CCR section 2261(b)(1)(B).
39 13 CCR section 2265.1(a)(2)(A). See also CARB
FSOR at pg. 25.
E:\FR\FM\12MYR1.SGM
12MYR1
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
offset option must complete physical
transfer, from the same facility, of
California gasoline with a ‘‘final blend
credit’’ 40 in sufficient quantity and for
the same emissions parameter (NOX,
total ozone forming potential, or
potency-weighted toxics) to fully offset
the ‘‘final blend deficit.’’ 41 This 90-day
limit and the requirement to produce
the ‘‘credit fuel’’ from the same facility
provide a reasonable connection
between the emissions from the noncompliant fuel and the offsetting
emission reductions.
Finally, the testing and recordkeeping
requirements of 13 CCR section 2270
have been revised to apply to any
producer or importer that has elected to
be subject to the PM offset option
pursuant to section 2264.2(d). As such,
each producer or importer who elects to
be subject to the PM offset option is
required to, among other things: Sample
and test for numerous characteristics of
the final blend produced or imported,
including the sulfur, aromatic
hydrocarbon, olefin, oxygen, and
benzene content; maintain, for two years
from the date of each sampling, records
showing the sample date, identity of
blend sampled, container or other vessel
sampled, final blend volume, and fuel
characteristics; and provide to the
Executive Officer any such records
within 20 days of a written request.42
To the extent that the emissions from
noncompliant fuel may occur during the
ozone season and the deficit offset three
months later, or that ‘‘credit’’ fuel may be
used in an airshed that has better air
quality than the airshed where the
noncompliant fuel is used, as the
commenter notes may occur, these
possibilities do not alter our section
110(l) analysis. The likelihood of
adverse air pollution impacts 43 from
such events is counterbalanced by a
40 ‘‘Final blend credit’’ is defined as ‘‘the credit
from a final blend of gasoline that may be used to
offset a producer’s or importer’s final blend deficit’’
and must be calculated in accordance with a
specified formula provided in the definition. 13
CCR section 2260(a)(10.5).
41 ‘‘Final blend deficit’’ is defined as ‘‘the deficit
from a final blend of gasoline that a producer or
importer must offset’’ and must be calculated in
accordance with a specific formula provided in the
definition. 13 CCR section 2260(a)(10.7). For
purposes of complying with the PM offset option,
section 2265.1(c) also requires that the ‘‘final blend
deficit’’ be multiplied by a specific factor that
increases the amount of required offsets from the
‘‘credit’’ blend.
42 13 CCR section 2270(a).
43 We note that these emissions effects are not
likely to occur. According to CARB, unlike most
other fuel properties governed by the CaRFG3 rules,
increases in sulfur levels in individual batches do
not result in immediate emission increases in
vehicles using the batch, and although sulfur
degrades catalyst performance the effect is
reversible. See CARB FSOR at pg. 24; CARB Staff
Report at pg. 36.
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
similar likelihood of air quality
improvements, i.e., that emission
reductions from credit fuel may occur
during the ozone season or within a
more polluted airshed, to offset
emissions from noncompliant fuel
produced outside of the ozone season or
in a less polluted airshed. In any event,
we believe the rigorous monitoring,
recordkeeping and reporting
requirements in section 2265.1, together
with the detailed requirements for
calculating offsets, as discussed above,
will ensure that any emissions increases
resulting from noncompliant fuel
permitted under the PM offset option
will be offset by an equivalent or greater
amount of emission reductions.
It is important to note that, even
taking into account the PM offset
option, the CaRFG3 sulfur content limits
that we are approving today are
substantially more stringent than the
sulfur content limits in California’s SIPapproved RFG program, which
establishes a flat limit of 40 ppm and an
option to establish a higher sulfur limit
accompanied by offset requirements.44
Furthermore, we note that section
2265.1 provides an alternative
compliance option only for purposes of
meeting California’s more stringent
sulfur content flat limit of 20 ppmw and
does not alter the applicability of the
federal sulfur content limit of 30 ppm.45
As such, in no event may a higher-sulfur
batch of gasoline that qualifies for the
PM offset option under section
2264.2(d) exceed the Federal sulfur
content limit of 30 ppmw.
In sum, given the detailed
recordkeeping, reporting, and testing
requirements associated with the PM
offset option, the detailed criteria for
calculation of the required offsetting
emission reductions, the substantial
strengthening of the sulfur content
limits in comparison to the SIPapproved limits, and the upper bound of
30 ppmw in the Federal regulations, we
believe that our approval of the PM
offset option does not interfere with any
applicable requirement concerning
attainment, RFP, or any other applicable
requirement of the Act.
Finally, as to the commenter’s
assertion that the rule allows for tripling
the allowable sulfur content of certain
fuels, we disagree. As explained above,
the current CaRFG3 standards establish
a 20 ppmw sulfur content flat limit for
producers and refiners of California
44 See 13 CCR section 2262.2 (adopted September
18, 1992); 60 FR 43383 (August 21, 1995).
45 40 CFR 80.195(a)(1). See also ‘‘Technical
Support Document for EPA’s Proposed Approval of
Rule Revisions for Reformulated Gasoline and
Diesel Fuel Sold or Supplied as Motor Vehicle
Fuels in California,’’ June 30, 2009 (TSD), at pg. 2.
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
26657
gasoline.46 The offsetting compliance
option in section 2265.1 allows a
producer to mitigate the excess
emissions of a gasoline batch that
exceeds the 20 ppmw sulfur content flat
limit, but it does not allow any
exceedance of the Federal 30 ppm sulfur
content limit.
Comment 5: The commenter asserted
that the ‘‘Alternative Emission
Reduction Plan (AERP) creates a
loophole which compromises
enforceability of the rule,’’ and that the
CARB Executive Officer has discretion
to approve an AERP without verifying
the required emission reductions.
Specifically, the commenter stated that
the AERP does not contain adequate
reporting, monitoring or verification
provisions to ensure that the emission
reductions are being carried out as
proposed, and that the AERP ‘‘only
requires the producer, importer, or third
party to submit to the Executive Officer
‘information that establishes * * * the
offsets accrued.’ 13 CCR 2265.5(i)(1).
Furthermore, the commenter stated, ‘‘the
types of emissions offsets allowed [by
the AERP] are particularly prone to be
speculative, and may in many instances
not actually produce the emissions
reductions used to offset increased
emissions from permeation.’’
For example, the commenter stated,
the ‘‘incentive grants’’ option in section
2265.5(i)(3) allows for speculative and
difficult-to-enforce offsets because it
allows entities to claim offsets
‘‘associated with incentive grants for
cleaner-than-required engines,
equipment and other sources of
pollution * * *.’’ The commenter
asserted that standards for the Executive
Officer in determining whether these
emission reductions are real, additional,
and enforceable are ‘‘wholly absent from
the AERP and the rule.’’
Response 5: We disagree. The
Alternative Emission Reduction Plan
(AERP) provision in 13 CCR section
2265.5 is a temporary flexibility option
to ensure that emission increases caused
by the addition of ethanol to gasoline
are fully mitigated consistent with State
law requirements.47 We believe the rule
contains adequate compliance
provisions, enforcement mechanisms,
and limitations on the Executive
Officer’s discretion to meet the
enforceability requirements of CAA
section 110(a).
Specifically, section 2265.5 provides
gasoline producers an alternative option
46 13 CCR section 2262. CARB has stated that
sulfur levels in CaRFG3 currently average about 10
ppmw but has not established a sulfur cap limit at
this level. See FSOR at pg. 17.
47 See CARB FSOR at pg. 12 (citing California
Health and Safety Code section 43013.1(b)(1)).
E:\FR\FM\12MYR1.SGM
12MYR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
26658
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
to offset emissions from ethanol
permeation while refinery modifications
are being made to allow the production
of fuel formulations that fully comply
with CaRFG3 standards.48 An AERP is
available only to a producer or importer
who, among other things, would satisfy
all of the criteria for approval in the
applicable Predictive Model Procedures
‘‘but for the elevated emissions
associated with permeation.’’ 49 All
AERPs sunset on December 31, 2011,
with the possibility of an extension of
up to one year.50
Contrary to the commenter’s
assertion, section 2265.5 contains
rigorous monitoring, reporting, and
verification provisions to ensure that the
proposed emission reductions under an
AERP will be achieved, in addition to
specific procedures for Executive
Officer action on an AERP application.
First, section 2265.5 establishes
detailed testing, recordkeeping and
reporting requirements. An application
for an AERP must contain, among other
things: Calculations of the total
emissions of oxides of nitrogen (NOX),
total ozone forming potential, and
potency-weighted toxics that would be
associated with the use of California
gasoline were the producer or importer
to eliminate the emissions associated
with permeation from its gasoline;
documentation of the amounts of these
pollutants associated with the
producer’s or importer’s gasoline; a
demonstration that the emission
reduction strategy(ies) in the AERP will
result in equivalent or better emission
benefits for these pollutants than would
be achieved through elimination of
permeation emissions from the gasoline
for the same affected region and for the
period the AERP will be in effect; the
date(s) that the offsets will accrue and
expire for each emission reduction
strategy; and the proposed
recordkeeping, reporting, monitoring,
and testing procedures that the producer
or importer plans to use to demonstrate
continued compliance with the AERP.51
Following approval of an AERP,
section 2265.5(h)(1) requires the
producer or importer to provide the
Executive Officer with detailed
information, before the start of physical
transfer, about the estimated volume of
the gasoline blend; the identity of the
approved AERP and the NOX, total
ozone forming potential, and potencyweighted toxics emission limits stated
in that plan; supporting documentation,
calculations, and emissions test data;
48 See
CARB FSOR at pg. 37.
CCR section 2265.5(a)(3).
50 13 CCR section 2265.5(a)(6).
51 13 CCR § 2265.5(b).
49 13
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
and within 24 hours after the start of the
physical transfer, the date and time of
the start of physical transfer from the
production or import facility. Section
2265.5(i) also requires the producer or
importer to notify the Executive Officer
in writing of the date that the offsets
actually accrued, together with all
documentation, calculations, emissions
test data, and other information that
establishes the amounts of emission
reductions. Together, these provisions
provide clear information upon which
the Executive Officer can base a
determination whether the proposed
emission reductions (i.e., the offsets) are
real, additional, and enforceable, and to
actually verify the emission reductions
following physical transfer of the
gasoline blend.
Second, section 2265.5(c) establishes
specific procedures for the Executive
Officer’s action on an AERP application.
Among other things, the Executive
Officer is required to make available for
public review all documents pertaining
to an AERP, provide notice of each
application to specified parties in
addition to public notice, and provide a
30-day public comment period, after
which the Executive Officer may take
final action to ‘‘either approve or deny’’
the AERP application. These procedures
provide the public an opportunity to
participate in the decisionmaking
process on an AERP and limit the
Executive Officer’s discretion to either
approving the application, if it satisfies
the requirements specified in section
2265.5(b), or denying it if it does not.
Finally, section 2265.5(e) establishes
specific enforceable prohibitions on,
among other things, selling or producing
gasoline that creates emissions
associated with permeation except in
compliance with an approved AERP;
failure to meet any requirement of
section 2265.5 or any condition of an
approved AERP; false reporting of any
information contained in an AERP or
supporting documentation; and any net
exceedance of NOX, total ozone forming
potential, or potency-weighted toxics
during the period of the AERP.
Violations of these provisions are
subject to civil penalties under section
43027 of the California Health and
Safety Code.52 These clear prohibitions,
together with the specific information
52 Health and Safety Code section 43027 states
that ‘‘[a]ny person who violates any provision of
this part, or any rule, regulation, permit, variance,
or order of the state board, pertaining to fuel
requirements and standards * * * is strictly liable
for a civil penalty of not more than thirty-five
thousand dollars ($35,000).’’ H&SC section 43027(c).
Negligent violations can result in civil penalties of
up to $50,000 and willful and intentional violations
can result in civil penalties of up to $250,000.
H&SC section 43027(a), (b).
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
and compliance provisions required in
each AERP application, provide
adequate means for CARB to take
enforcement action where the proposed
emission reductions are not achieved, as
well as for other violations of AERP
conditions.
Taken together, these detailed
compliance mechanisms ensure that
only those AERPs that satisfy the
detailed requirements specified in
section 2265.5(b) will be approved, and
the procedural regulations provide an
additional assurance of transparent
decisionmaking processes.
The commenter’s assertion that the
‘‘incentive grants’’ option in section
2265.5(i)(3) ‘‘allows for speculative and
difficult-to-enforce offsets’’ is not
entirely clear. Section 2265.5(i) requires
that the producer or importer subject to
an AERP notify the Executive Officer in
writing and provide all supporting
documentation of the amount of NOX,
total ozone forming potential, and
potency-weighted toxics associated with
the proposed offsets or other reduction
strategies, as provided in the approved
AERP, and the date(s) the offsets
accrued. Section 2265.5(i)(3) lists
‘‘incentive grants for cleaner-thanrequired engines, equipment and other
sources of pollution providing early or
extra emission reductions’’ among the
emission reduction strategies for which
a producer or importer must provide the
requisite notifications to the Executive
Officer. To the extent the commenter
intended to argue that this provision
allows for unenforceable offsets, we
disagree for the reasons stated above.53
Comment 6: The commenter asserted
that several elements of the proposed
SIP revisions contain unenforceable
‘‘director’s discretion’’ provisions and
that EPA approval of these provisions
would violate CAA section 110(a)(2)(A).
Specifically, the commenter stated that
the new alternative compliance plan
provisions in sections 2265.1 and
2265.5, the addition of these provisions
in section 2271 as circumstances in
which a variance may be requested, and
the amended CARBOB regulations in
section 2266.5 all provide for director’s
discretion without adequate limits on
such discretion.
The commenter referenced a ‘‘notation
1’’ in EPA’s TSD for the proposed rule,
which states that ‘‘Director’s discretion
is limited by explicit and replicable
procedures within the rule that define
how discretion is to be exercised and
that assures equivalent emission
53 We note, as a practical matter, that CARB has
not received any applications for an AERP or a
third-party AERP and does not expect any. See email from Renee Littaua, Manager, Fuels Section,
CARB, October 20, 2009.
E:\FR\FM\12MYR1.SGM
12MYR1
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
WReier-Aviles on DSKGBLS3C1PROD with RULES
reductions.’’ As applied to 13 CCR
sections 2265.5 and 2266.5, the
commenter asserted that this notation
‘‘appears * * * to be an attempt by EPA
to preemptively address concerns
regarding director’s discretion.’’ The
commenter cited several EPA policy
statements regarding director’s
discretion provisions and appropriate
limitations on such discretion, and
stated that the ‘‘notation 1’’ in EPA’s
TSD ‘‘appear[s] to water down the
requirement’’ that director’s discretion
provisions ‘‘tightly define how the
discretion will be exercised to assure
equivalent emission reductions.’’
In sum, the commenter asserted that
EPA has not shown that the director’s
discretion provisions in sections 2265.1,
2265.5, 2271, and the amended
CARBOB regulations in section 2266.5
satisfy the requirements to ‘‘include
explicit and replicable procedures
which tightly define how the discretion
will be exercised, much less how the
discretion will be exercised to assure
equivalent emission reductions.’’ Absent
more specific limitations on director’s
discretion or a requirement that each
exercise of such discretion be approved
by EPA, the commenter stated, these
provisions are unenforceable and violate
CAA section 110(a)(2)(A).
Response 6: We disagree. As to
sections 2265.1 (PM offset option) and
2265.5 (AERPs), we believe these
provisions are enforceable for the
reasons discussed above in responses 4
and 5, respectively. Accordingly, the
addition of sections 2265.1 and 2265.5
to the provisions in section 2271 for
which a person may seek a variance,
consistent with the criteria outlined in
section 2271, is permissible. Moreover,
since our approval of section 2271 into
the SIP in 1995,54 CARB has revised it
to add further criteria governing the
Executive Officer’s evaluation of a
variance request. These rule revisions
define even more specifically how the
Executive Officer is to exercise
discretion in acting on a variance
request and strengthen the
enforceability of the rule.
The SIP-approved version of section
2271 requires that the Executive
Officer’s decision to grant or deny a
variance be based ‘‘solely upon
substantial evidence in the record of the
variance proceeding,’’ 55 and states that
54 16 CCR section 2271 (adopted September 18,
1992); 60 FR 43383 (August 21, 1995).
55 The Executive Officer is required to hold a
public hearing on each application containing the
required information, to make the application
available to the public at least 20 days prior to the
hearing, to provide a reasonable opportunity to
submit written and oral testimony at the hearing
and to consider such testimony. 13 CCR section
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
a variance may not be granted unless the
Executive Officer makes all of the
following findings: (1) That, because of
reasons beyond the reasonable control
of the applicant, requiring compliance
with the applicable section(s) would
result in an extraordinary economic
hardship; (2) that the public interest in
mitigating the extraordinary hardship by
issuing the variance outweighs the
public interest in avoiding any
increased emissions of air contaminants
which would result from issuing the
variance; and (3) that the compliance
plan proposed by the applicant can
reasonably be implemented and will
achieve compliance as expeditiously as
possible.56
These requirements remain
unchanged. CARB has, however, revised
section 2271 to require that each of
these three findings be made in
accordance with detailed factors listed
in section 2271(e). For example, in
determining whether the public interest
in mitigating the extraordinary hardship
by issuing the variance outweighs the
public interest in avoiding increased air
emissions, the Executive Officer must
‘‘consider the potential effects of issuing
or denying the variance on the
applicant’s customers, the producers of
complying fuel, the general public, and
upon air quality,’’ and must also
consider whether granting the variance
will place the applicant at a cost
advantage over other persons, including
those persons who produce complying
gasoline.57 Importantly, in evaluating
the potential effect of the variance upon
air quality, the Executive Officer must
estimate both the excess exhaust
emissions and the excess evaporative
hydrocarbon emissions that will result
from granting the variance in
accordance with specific calculations,
including use of the California
Predictive Model Procedures with
specified inputs.58 These new
provisions tightly define how the
Executive Officer’s discretion will be
exercised to assure equivalent emission
reductions.
As to section 2266.5 (amended
CARBOB regulations), the commenter
has not identified any discretionary
provisions that are of particular
concern. In the absence of a more
specific explanation, we have construed
the comment to refer to several
provisions in section 2266.5 that allow
2271(b), (c) (adopted September 18, 1992); 60 FR
43383 (August 21, 1995).
56 16 CCR section 2271 (adopted September 18,
1992); 60 FR 43383 (August 21, 1995).
57 13 CCR section 2271(e)(2) (2007).
58 13 CCR section 2271(e)(2)(B) (2007).
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
26659
the Executive Officer to enter into
protocols for determining compliance.
For example, section 2266.5(a)(2)(E)
authorizes the Executive Officer to enter
into a written protocol with an
individual producer or importer for the
purpose of specifying an alternative
method for determining whether a final
blend of CARBOB complies with the
standards for California gasoline, ‘‘as
long as the executive officer reasonably
determines that application of the
protocol is not less stringent or
enforceable than application of the
express terms of [the applicable
standards].’’ Section 2266.5(b)(4)
imposes identical conditions on the
Executive Officer’s authority to enter
into a written protocol with an
individual producer or importer for the
purpose of specifying how the
requirements for certain notifications to
CARB should be applied to the
producer’s or importer’s particular
operations. We believe that section
2266.5 adequately defines how the
Executive Officer’s discretion is to be
exercised for these limited purposes.
Comment 7: The commenter asserted
that EPA must make another
equivalency determination to maintain
the RFG enforcement exemption for
California. Specifically, the commenter
stated that EPA ‘‘relies heavily on an
earlier equivalency determination made
in December 2005 in the context of an
RFG enforcement exemption request
approval,’’ that the relevance of the 2005
enforcement exemption is unclear, and
that ‘‘because significant changes are
being proposed to the California RFG
regulations, EPA must make another
equivalency determination to continue
exempting California gasoline from RFG
regulation.’’
Response 7: We disagree. The CAA
does not require that EPA revisit an
equivalency determination for the RFG
enforcement exemption each time we
revise a SIP, and the commenter does
not identify any such requirement. As
explained in our response to comment
1, above, we have concluded that the
rationale supporting the CaRFG3
enforcement exemption in 2005
continues to support our action today.
To the extent the commenter intended
to argue that the facts underlying EPA’s
2005 determination have significantly
changed, such that that prior
determination is no longer valid, we
also disagree. Neither the CaRFG3 nor
federal RFG compliance and
enforcement programs have been
significantly revised since our 2005
equivalency determination.59 In the
59 74
E:\FR\FM\12MYR1.SGM
FR at 33198.
12MYR1
26660
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
proposed rule we also stated that the
revisions to the CaRFG3 regulations
strengthen the requirements in the
existing SIP. The commenter has not
identified any factual changes that call
into question our previous findings.
Finally, we note that the commenter
incorrectly suggests that the CaRFG3
enforcement exemption allows EPA to
‘‘exempt[ ] California gasoline from RFG
regulation.’’ The CaRFG3 enforcement
exemption applies only to certain
federal RFG enforcement requirements
and does not exempt California gasoline
from any federal RFG standards.60
III. Final Action
Under section 110(k)(3) of the Clean
Air Act, EPA is approving revisions to
the California regulations for
reformulated gasoline (RFG) sold or
supplied in California, as submitted on
June 15, 2004 and February 3, 2009, and
revisions to the regulations for diesel
fuel sold or supplied in California, as
submitted on February 3, 2009, as
revisions to the California SIP.
WReier-Aviles on DSKGBLS3C1PROD with RULES
IV. Statutory and Executive Order
Reviews
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 not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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
60 See
fn. 8, supra.
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
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 Clean Air Act;
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.
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).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by July 12, 2010.
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 may
not be challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Carbon monoxide,
Hydrocarbons, Intergovernmental
relations, Oxides of Nitrogen, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: December 11, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.
Part 52, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
■
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.220 is amended by
adding paragraphs (c)(204)(i)(A)(7),
(c)(374), (c)(375) and (c)(376) to read as
follows:
■
§ 52.220
Identification of plan.
*
*
*
*
*
(c) * * *
(204) * * *
(i) * * *
(A) * * *
(7) Previously approved on August 21,
1995, in paragraph (c)(204)(i)(A)(3) of
this section, and now deleted without
replacement: Title 13, California Code of
Regulations, Reformulated Gasoline
Regulations, sections 2262.1, 2262.2,
and 2262.7.
*
*
*
*
*
(374) The following revisions to the
California Reformulated Gasoline
Regulations were submitted on June 15,
2004 (2004 RFG Revision), by the
Governor’s Designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) Title 13, California Code of
Regulations, Division 3 (Air Resources
Board), Chapter 5 (Standards for Motor
Vehicle Fuels), Article 1 (Standards for
Gasoline), Subarticle 1 (Gasoline
Standards That Became Applicable
Before 1996), sections 2253.4, ‘‘Lead in
Gasoline’’ (operative August 12, 1991);
2254, ‘‘Manganese Additive Content’’
(operative August 12, 1991); 2257,
‘‘Required Additives in Gasoline’’
(operative July 16, 1999); 2259,
‘‘Exemptions for Motor Vehicle Fuels
Used in Test Programs’’ (operative
February 15, 1995); Subarticle 2
(Standards for Gasoline Sold Beginning
March 1, 1996), sections 2260,
‘‘Definitions’’ (operative May 1, 2003);
2261, ‘‘Applicability of Standards;
Additional Standards’’ (operative May 1,
E:\FR\FM\12MYR1.SGM
12MYR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
2003); 2262, ‘‘The California
Reformulated Gasoline Phase 2 and
Phase 3 Standards’’ (operative December
24, 2002); 2262.3, ‘‘Compliance With the
CaRFG Phase 2 and CaRFG Phase 3
Standards for Sulfur, Benzene, Aromatic
Hydrocarbons, Olefins, T50 and T90’’
(operative August 20, 2001); 2262.4,
‘‘Compliance With the CaRFG Phase 2
and CaRFG Phase 3 Standards for Reid
Vapor Pressure’’ (operative December
24, 2002); 2262.5, ‘‘Compliance With the
Standards for Oxygen Content’’
(operative December 24, 2002); 2262.6,
‘‘Prohibition of MTBE and Oxygenates
Other Than Ethanol in California
Gasoline Starting December 31, 2003’’
(operative May 1, 2003); 2262.9,
‘‘Requirements Regarding Denatured
Ethanol Intended For Use as a Blend
Component in California Gasoline’’
(operative December 24, 2002); 2263,
‘‘Sampling Procedures and Test
Methods’’ (operative May 1, 2003);
2263.7, ‘‘Multiple Notification
Requirements’’ (operative September 2,
2000); 2264, ‘‘Designated Alternative
Limits’’ (operative August 20, 2001);
2264.2, ‘‘Election of Applicable Limit for
Gasoline Supplied From a Production or
Import Facility’’ (operative September 2,
2000); 2265, ‘‘Gasoline Subject to PM
Alternative Specifications Based on the
California Predictive Model’’ (operative
December 24, 2002); 2266, ‘‘Certified
Gasoline Formulations Resulting in
Equivalent Emission Reductions Based
on Motor Vehicle Emissions Testing’’
(operative August 20, 2001); 2266.5,
‘‘Requirements Pertaining to California
Reformulated Gasoline Blendstock for
Oxygen Blending (CARBOB) and
Downstream Blending’’ (operative May
1, 2003); 2267, ‘‘Exemptions for Gasoline
Used in Test Programs’’ (operative
September 2, 2000); 2268, ‘‘Liability of
Persons Who Commit Violations
Involving Gasoline That Has Not Yet
Been Sold or Supplied to a Motor
Vehicle’’ (operative September 2, 2000);
2269, ‘‘Submittal of Compliance Plans’’
(operative December 24, 2002); 2270,
‘‘Testing and Recordkeeping’’ (operative
December 24, 2002); 2271, ‘‘Variances’’
(operative December 24, 2002); 2272,
‘‘CaRFG Phase 3 Standards for
Qualifying Small Refiners’’ (operative
May 1, 2003); 2273, ‘‘Labeling of
Equipment Dispensing Gasoline
Containing MTBE’’ (operative May 1,
2003); 2273.5, ‘‘Documentation Provided
with Delivery of Gasoline to Retail
Outlets’’ (operative May 1, 2003).
(2) ‘‘California Procedures for
Evaluating Alternative Specifications for
Phase 2 Reformulated Gasoline Using
the California Predictive Model,’’ as last
amended December 11, 1998.
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
(3) ‘‘California Procedures for
Evaluating Alternative Specifications for
Phase 3 Reformulated Gasoline Using
the California Predictive Model,’’ as last
amended April 25, 2001.
(4) ‘‘California Procedures for
Evaluating Alternative Specifications for
Gasoline Using Vehicle Emissions
Testing,’’ as last amended April 25,
2001.
(5) ‘‘Procedures for Using the
California Model for California
Reformulated Gasoline Blendstocks for
Oxygenate Blending (CARBOB),’’ as
adopted April 25, 2001.
(ii) Additional material.
(A) California Air Resources Board.
(1) Executive Order G–125–320, dated
June 15, 2004, adopting the 2004 RFG
Revision.
(2) The following additional material
is available for inspection at EPA Region
9. To inspect this material, please
contact EPA Region 9, 75 Hawthorne
Street, San Francisco, California, 94105,
Chief of Air Planning, (415) 947–8021.
(i) Standard Test Method for
Determination of Ethanol Content of
Denatured Fuel Ethanol by Gas
Chromatography, Designation: D 5501–
94 (1998); Standard Test Method for
Gum Content in Fuels by Jet
Evaporation, Designation: D 381–00;
Standard Test Method for Water Using
Volumetric Karl Fischer Titration,
Designation: E 203–96; Standard Test
Method for Water in Organic Liquids by
Coulometric Karl Fischer Titration,
Designation: E 1064–00; Standard Test
Methods for Chloride Ion In Water,
Designation: D 512–89 (1999); Standard
Test Methods for Copper in Water,
Designation: D 1688–95; Standard Test
Method for Acidity in Volatile Solvents
and Chemical Intermediates Used in
Paint, Varnish, Lacquer, and Related
Products, Designation: D 1613–96
(1999); Standard Test Method for
Determination of pHe of Ethanol,
Denatured Fuel Ethanol, and Fuel
Ethanol (Ed75–Ed85), Designation: D
6423–99.
(ii) Standard Test Method for
Determination of Total Sulfur in Light
Hydrocarbons, Motor Fuels and Oils by
Ultraviolet Fluorescence, Designation: D
5453–93.
(iii) Standard Test Method for
Determination of MTBE, ETBE, TAME,
DIPE, tertiary-Amyl Alcohol and C1 to
C4 Alcohols in Gasoline by Gas
Chromatography, Designation: D 4815–
99; Standard Test Method for
Distillation of Petroleum Products at
Atmospheric Pressure, Designation: D
86–99a; Standard Test Method for
Determination of Olefin Content of
Gasolines by Supercritical-Fluid
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
26661
Chromatography, Designation: D 6550–
00.
(375) The following revisions to the
California Reformulated Gasoline
Regulations were submitted on February
3, 2009 (2009 RFG Revision), by the
Governor’s Designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) Title 13, California Code of
Regulations, Division 3 (Air Resources
Board), Chapter 5 (Standards for Motor
Vehicle Fuels), Article 1 (Standards for
Gasoline), Subarticle 2 (Standards for
Gasoline Sold Beginning March 1,
1996), sections 2260, ‘‘Definitions’’
(operative August 29, 2008); 2261,
‘‘Applicability of Standards; Additional
Standards’’ (operative August 29, 2008);
2262, ‘‘The California Reformulated
Gasoline Phase 2 and Phase 3
Standards’’ (operative August 29, 2008);
2262.3, ‘‘Compliance With the CaRFG
Phase 2 and CaRFG Phase 3 Standards
for Sulfur, Benzene, Aromatic
Hydrocarbons, Olefins, T50 and T90’’
(operative August 29, 2008); 2262.4,
‘‘Compliance With the CaRFG Phase 2
and CaRFG Phase 3 Standards for Reid
Vapor Pressure’’ (operative August 29,
2008); 2262.5, ‘‘Compliance With the
Standards for Oxygen Content’’
(operative August 29, 2008); 2262.6,
‘‘Prohibition of MTBE and Oxygenates
Other Than Ethanol in California
Gasoline Starting December 31, 2003’’
(operative April 9, 2005); 2262.9,
‘‘Requirements Regarding Denatured
Ethanol Intended For Use as a Blend
Component in California Gasoline’’
(operative August 29, 2008); 2263,
‘‘Sampling Procedures and Test
Methods’’ (operative August 29, 2008);
2263.7, ‘‘Multiple Notification
Requirements’’ (operative August 29,
2008); 2264, ‘‘Designated Alternative
Limits’’ (operative August 20, 2001);
2264.2, ‘‘Election of Applicable Limit for
Gasoline Supplied From a Production or
Import Facility’’ (operative August 29,
2008); 2265, ‘‘Gasoline Subject to PM
Alternative Specifications Based on the
California Predictive Model’’ (operative
August 29, 2008); 2265.1, ‘‘Offsetting
Emissions Associated with Higher
Sulfur Levels’’ (operative August 29,
2008); 2265.5, ‘‘Alternative Emission
Reduction Plan (AERP)’’ (operative
August 29, 2008); 2266, ‘‘Certified
Gasoline Formulations Resulting in
Equivalent Emission Reductions Based
on Motor Vehicle Emissions Testing’’
(operative August 29, 2008); 2266.5,
‘‘Requirements Pertaining to California
Reformulated Gasoline Blendstock for
Oxygen Blending (CARBOB) and
Downstream Blending’’ (operative
August 29, 2008); 2270, ‘‘Testing and
Recordkeeping’’ (operative August 29,
E:\FR\FM\12MYR1.SGM
12MYR1
WReier-Aviles on DSKGBLS3C1PROD with RULES
26662
Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Rules and Regulations
2008); 2271, ‘‘Variances’’ (operative
August 29, 2008); 2273, ‘‘Labeling of
Equipment Dispensing Gasoline
Containing MTBE’’ (operative August
29, 2008).
(2) ‘‘California Procedures for
Evaluating Alternative Specifications for
Phase 3 Reformulated Gasoline Using
the California Predictive Model,’’ as last
amended August 7, 2008.
(3) ‘‘Procedures for Using the
California Model for California
Reformulated Gasoline Blendstocks for
Oxygenate Blending (CARBOB),’’ as last
amended August 7, 2008.
(ii) Additional material.
(A) California Air Resources Board.
(1) Executive Order S–09–001, dated
February 3, 2009, adopting the 2009
RFG Revision.
(376) The following revisions to the
California Diesel Fuel Regulations were
submitted on February 3, 2009 (2009
Diesel Fuels Revision), by the
Governor’s Designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) Title 13, California Code of
Regulations, Division 3 (Air Resources
Board), Chapter 1 (Motor Vehicle
Pollution Control Devices), Article 1
(General Provisions), sections 1956.8,
‘‘Exhaust Emissions Standards and Test
Procedures—1985 and Subsequent
Model Heavy-Duty Engines and
Vehicles’’ (operative December 31,
2008); 1960.1, ‘‘Exhaust Emissions
Standards and Test Procedures—1981
through 2006 Model Passenger Cars,
Light-Duty and Medium-Duty Vehicles’’
(operative March 26, 2004); 1961,
‘‘Exhaust Emissions Standards and Test
Procedures—2004 and Subsequent
Model Passenger Cars, Light-Duty and
Medium-Duty Vehicles’’ (operative June
16, 2008); Chapter 5 (Standards for
Motor Vehicle Fuels), Article 2
(Standards for Diesel Fuel), sections
2281, ‘‘Sulfur Content of Diesel Fuel’’
(operative August 4, 2005); 2282,
‘‘Aromatic Hydrocarbon Content of
Diesel Fuel’’ (operative August 4, 2005);
2284, ‘‘Lubricity of Diesel Fuel’’
(operative August 4, 2005); 2285,
‘‘Exemption from Diesel Fuel
Requirements for Military-Specification
Fuels Used in Qualifying Military
Vehicles’’ (operative August 14, 2004);
Chapter 14 (Verification Procedure,
Warranty and In-Use Compliance
Requirements for In-Use Strategies to
Control Emissions from Diesel Engines),
section 2701, ‘‘Definitions’’ (operative
January 1, 2005).
(2) Title 17, California Code of
Regulations, Division 3 (Air Resources),
Chapter 1 (Air Resources Board),
Subchapter 7.5 (Airborne Toxic Control
Measures), section 93114, ‘‘Airborne
VerDate Mar<15>2010
12:59 May 11, 2010
Jkt 220001
Toxic Control Measure To Reduce
Particulate Emissions from DieselFueled Engines—Standards for
Nonvehicular Diesel Fuel’’ (operative
August 14, 2004).
(ii) Additional material.
(A) California Air Resources Board.
(1) Executive Order S–09–001, dated
February 3, 2009, adopting the 2009
Diesel Fuels Revision.
*
*
*
*
*
[FR Doc. 2010–11005 Filed 5–11–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
I. General Information
40 CFR Part 180
[EPA–HQ–OPP–2009–0032; FRL–8824–5]
Fluazinam; Pesticide Tolerances
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This regulation establishes
tolerances for residues of fluazinam in
or on bushberry subgroup 13-07B;
onion, bulb, subgroup 3-07A; lettuce,
head; and lettuce, leaf. This regulation
additionally removes several established
individual commodities and bushberry
subgroup 13B, as they will be
superseded by inclusion in bushberry
subgroup 13-07B. Interregional Research
Project Number 4 (IR-4) requested these
tolerances under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective May
12, 2010. Objections and requests for
hearings must be received on or before
July 12, 2010, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0032. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
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
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
ADDRESSES:
PO 00000
Frm 00020
Fmt 4700
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Laura Nollen, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 305–7390; e-mail address:
nollen.laura@epa.gov.
SUPPLEMENTARY INFORMATION:
Sfmt 4700
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Electronic Access to
Other Related Information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
cite at https://www.gpoaccess.gov/ecfr.
To access the harmonized test
guidelines referenced in this document
electronically, please go to https://
www.epa.gov/ocspp and select ‘‘Test
Methods and Guidelines.’’
C. Can I File an Objection or Hearing
Request?
Under section 408(g) of FFDCA, 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
E:\FR\FM\12MYR1.SGM
12MYR1
]]>Agencies
[Federal Register Volume 75, Number 91 (Wednesday, May 12, 2010)]
[Rules and Regulations]
[Pages 26653-26662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11005]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2009-0344; FRL-9112-7]
Approval and Promulgation of Air Quality Implementation Plans;
Reformulated Gasoline and Diesel Fuels; California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule approves state implementation plan (SIP)
revisions submitted by the State of California on June 15, 2004 and
February 3, 2009, relating to reformulated gasoline (RFG) and diesel
fuel sold or supplied as motor vehicle fuels in California. The
revisions relating to RFG include California Phase 3 RFG (CaRFG3)
regulations, correction of errors and streamlined requirements for
compliance with and enforcement of the CaRFG3 standards, and an update
to the State's predictive model to mitigate permeation emissions
associated with the use of ethanol as a fuel additive. The revisions
relating to diesel fuel include test methods for determining the
aromatic hydrocarbon content in diesel fuel and reductions in the
maximum allowable sulfur content for motor vehicle diesel fuel. The
effect of today's action is to make these revisions federally
enforceable as part of the California SIP.
DATES: This final rule is effective June 11, 2010.
ADDRESSES: EPA has established a docket for this action under EPA-R09-
OAR-2009-0344. The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
Although listed in the index, some information is not publicly
available, i.e., CBI or other information the disclosure of which is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX, (415)
947-4152, buss.jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'' ``us'' and
``our'' refer to EPA.
I. Summary of Proposed Actions
On July 10, 2009 (74 FR 33196), EPA proposed to approve revisions
to the California regulations for reformulated gasoline (RFG) sold or
supplied in California, as submitted on June 15, 2004 and February 3,
2009, and revisions to the regulations for diesel fuel sold or supplied
in California, as submitted on February 3, 2009, as revisions to the
California SIP. On July 21, 2009 (74 FR 35838), EPA issued a correction
to the proposed approval and on August 11, 2009 (74 FR 40123), EPA
extended the comment period on the proposed approval to August 31,
2009. For a detailed discussion of the rule revisions that California
submitted, please refer to EPA's proposed rule and Technical Support
Document which can be found in the docket for this rulemaking.
II. EPA's Response to Comments
We received one comment letter on August 31, 2009 from the Center
on Race, Poverty & the Environment (CRPE or ``the commenter'') on
behalf of the Association of Irritated Residents, Comit[eacute] West
Goshen, Comit[eacute] Unido de Plainview, Comit[eacute] Residentes
Organizados al Servicio del Ambiente, Committee for a Better Arvin, La
Nueva Esperanza deAlpaugh, El Quinto Sol de America, South Shafter
Project Committee, Shafter Chapter League of United Latin American
Citizens, United for a Change in Tooleville, and La Voz de Tonyville.
We have summarized the comments and provided responses below.
Comment 1: CRPE stated that EPA must determine that CaRFG3 is
enforceable before approving the SIP revision. Specifically, the
commenter asserted that EPA is inappropriately relying on a federal RFG
enforcement exemption granted in 2005 to support its conclusion that
the CaRFG3 amendments to the SIP satisfy the requirements of CAA
section 110(a).
The commenter summarized portions of the rationale EPA provided in
our proposed approval (74 FR 33198), and stated that ``EPA must
evaluate the final rule to determine whether the rule is enforceable
under Sec. 110(a), not whether the rule is equivalent in practice to
federal requirements.'' The commenter asserted that EPA has neither
``made the requisite finding that the provisions are enforceable,'' nor
``made the case that equivalence in practice to federal requirements
constitutes enforceability for the purposes of Sec. 110(a).''
Response 1: Section 110(a)(2)(A) of the CAA requires that each SIP
include ``enforceable emission limitations and other control measures,
means, or techniques * * * as may be necessary or appropriate to meet
the applicable requirements of this chapter.'' See also CAA section
172(c)(6) (requiring enforceable measures in nonattainment area plans).
EPA has stated in interpretive guidance that to be enforceable in
practice, a measure must ``specify clear, unambiguous, and measurable
requirements'' and must include a legal means to ensure that sources
are in compliance.\1\ For example, an enforceable SIP regulation must
clearly spell out the requirements, the regulated sources or
activities, the recordkeeping and monitoring requirements, and test
procedures to determine whether sources are in compliance.\2\ We
continue to believe that the revisions to the California RFG
regulations that we are approving today satisfy these enforceability
requirements of CAA section 110(a).
---------------------------------------------------------------------------
\1\ ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,''
57 FR 13498 at 13568 (April 16, 1992) (General Preamble).
\2\ Id. at 13502.
---------------------------------------------------------------------------
First, as the commenter notes, in 2005 EPA exempted refiners,
blenders and importers of CaRFG3 sold for use within California from
certain enforcement provisions in the Federal RFG regulations found at
40 CFR 80.81 (CaRFG3 enforcement exemption).\3\ EPA granted this
enforcement exemption following a determination that the CaRFG3
regulations and associated enforcement mechanisms were sufficient to
ensure that producers of California gasoline would in fact meet the
CaRFG3 standards, which in turn, would ensure compliance with the
Federal Phase II RFG standards.\4\ EPA's
[[Page 26654]]
rationale for the exemption was consistent with the analyses we used
when we previously granted enforcement exemptions to refiners,
importers, and blenders of California Phase 2 gasoline (CaRFG2) under
both the Federal Phase I and Phase II RFG programs.\5\
---------------------------------------------------------------------------
\3\ 70 FR 75914 (December 21, 2005).
\4\ EPA made three determinations to support the enforcement
exemption: (1) That emission reductions from CaRFG3 would be equal
to or greater than the emission reductions from Federal Phase II RFG
standards; (2) that the content standard for benzene in CaRFG3 would
be equivalent in practice to the Federal Phase II RFG standard and
that the oxygen content standard of 2.0 weight percent would be met
in Federal RFG areas; and (3) that the California Air Resources
Board (CARB) compliance and enforcement program is sufficiently
rigorous to ensure that Federal Phase II RFG requirements would be
met in practice. 74 FR 33196 at 33198 (July 10, 2009); 70 FR 75914
at 75918 (December 21, 2005). See also 69 FR 48827 at 48832 (August
11, 2004).
\5\ 69 FR 48827 at 48829 (August 11, 2004) (proposed rule to
extend California enforcement exemptions to CaRFG3). EPA had
previously exempted gasoline subject to California's Phase 2 RFG
regulations (CaRFG2) from certain enforcement requirements under the
Federal Phase I RFG program. See 59 FR 7813 (February 16, 1994); 63
FR 34818 (June 26, 1998). These enforcement exemptions expired on
December 31, 1999, but EPA continued the exemptions beyond that date
following a determination that the CaRFG2 regulations would provide
emission benefits equivalent to the Federal Phase II RFG program. 64
FR 49992 (September 15, 1999). The 2005 action extended these
California enforcement exemptions to CaRFG3.
---------------------------------------------------------------------------
Specifically, EPA determined in those prior actions that it was
appropriate to exempt producers of California gasoline from certain
sampling and testing, recordkeeping, and reporting provisions in the
Federal RFG regulations that deal solely with demonstrating compliance
with the Federal RFG standards.\6\ EPA found that these Federal
enforcement provisions were duplicative and unnecessary, because the
California RFG program was sufficiently stringent and enforceable to
ensure compliance with the Federal standards.\7\ Thus, following a
determination that the CaRFG3 regulations would provide emission
benefits equivalent to the Federal Phase II RFG program, EPA extended
the enforcement exemptions at 40 CFR 80.81 to refiners, importers, and
blenders of CaRFG3.\8\
---------------------------------------------------------------------------
\6\ 58 FR 11745 at 11749 (February 26, 1993).
\7\ 58 FR 11745 at 11746, 11749 (February 26, 1993).
\8\ 69 FR 48827 at 48832 (August 11, 2004); 70 FR 75914 at 75918
(December 21, 2005). Note that the CaRFG3 enforcement exemptions do
not excuse producers of California gasoline from Federal RFG
standards, but rather exempt them only from certain enforcement
requirements designed to demonstrate compliance with the Federal RFG
standards. EPA retains its authority to sample and test California
gasoline to make sure that it meets all applicable Federal
standards. 58 FR at 11746 (February 26, 1993); 69 FR 48827 at 48832
(August 11, 2004).
---------------------------------------------------------------------------
As noted in our proposal for this action, CARB's compliance and
enforcement program has not changed significantly since we made our
2005 finding regarding its adequacy.\9\ Thus, we believe that the
analyses underlying the CaRFG3 enforcement exemption support our
conclusion that the CaRFG3 regulations are enforceable, consistent with
the requirements of CAA section 110(a).
---------------------------------------------------------------------------
\9\ 74 FR at 33198 (July 10, 2009). We also reviewed CARB's most
recent annual enforcement report, which indicates that fuels
inspection and enforcement cases have slightly increased in recent
years. Id. at fn. 12.
---------------------------------------------------------------------------
Moreover, many of the regulatory revisions that we are approving
today improve the enforceability of California's RFG program. For
example, CARB amended the Predictive Model Procedures \10\ to, among
other things, update the motor vehicle emissions inventory vehicle mix,
update the reactivity adjustment factors, and add new motor vehicle
exhaust emissions test data.\11\ These revised modeling procedures,
which become effective December 31, 2009,\12\ improve the reliability
of emission predictions for alternative gasoline specifications subject
to CaRFG3 standards.
---------------------------------------------------------------------------
\10\ The California ``Predictive Model Procedures'' are used to
determine whether the emissions of a gasoline meeting alternative
specifications will be equivalent to the emissions of a gasoline
that meets CaRFG3 specifications. CARB most recently amended the
Predictive Model Procedures on August 7, 2008. See ``California
Procedures for Evaluating Alternative Specifications for Phase 3
Reformulated Gasoline Using the California Predictive Model,'' CARB,
Amended August 7, 2008, at pg. 4; 13 CCR section 2265.
\11\ See ``Staff Report: Initial Statement of Reasons, Proposed
Amendments to California Phase 3 Gasoline Regulations,'' CARB,
Stationary Source Division, April 27, 2007 (CARB Staff Report), at
pp. 15-20.
\12\ 13 CCR section 2265.
---------------------------------------------------------------------------
Additionally, the CaRFG3 standards in 13 CCR section 2262 lower the
sulfur content cap limit from 30 parts per million (ppm) to 20 ppm
starting December 31, 2011.\13\ Cap limits \14\ provide an upper limit
for fuel properties for all compliance options and allow for
enforcement of the requirements throughout the gasoline distribution
system.\15\ According to CARB's staff report for the 2007 revisions to
the CaRFG3 program (CARB Staff Report), refiners will generally not be
able to produce complying gasoline with sulfur limits higher than 20
ppm--that is, any gasoline found as having a sulfur content of greater
than 20 ppm will most likely be non-complying gasoline.\16\ The sulfur
content cap limit of 20 ppm enables CARB to enforce against producers
or importers of any gasoline exceeding this level of sulfur, which will
cover most non-complying gasoline formulations.\17\
---------------------------------------------------------------------------
\13\ The declining sulfur content cap and associated compliance
requirements are described more specifically in section
2261(b)(1)(A).
\14\ A ``cap limit'' is ``a limit that applies to all California
gasoline throughout the gasoline distribution system, in accordance
with 13 CCR sections 2262.3(a), 2262.4(a), and 2262.5(a) and (b).''
California Procedures for Evaluating Alternative Specifications for
Phase 3 Reformulated Gasoline Using the California Predictive Model,
last amended April 25, 2008, at pg. 8 (definitions).
\15\ See CARB Staff Report, Executive Summary, at pg. ix.
\16\ According to CARB, sulfur levels in CaRFG3 currently
average about 10 ppmw, with 95 percent of production being below 18
ppmw. See ``Final Statement of Reasons for Rulemaking Including
Summary of Comments and Agency Responses,'' CARB, June 14, 2007
(CARB FSOR) at pg. 17.
\17\ See ``Updated Information Digest: 2007 Amendments to the
Phase 3 California Reformulated Gasoline Regulations,'' CARB
[undated]; see also CARB Staff Report, at pp. ix, 35.
---------------------------------------------------------------------------
Finally, several test method requirements have been updated. For
example, the new test method for measuring olefins in fuel using
supercritical fluid chromatography (SFC) is significantly more precise
than the previous method, which was based on manual measurements of
olefin content in fuel.\18\ The new test method for measuring the
distillation temperature of RFG adopts the updated American Society of
Testing and Materials (ASTM) standard, which corrects errors in the
test method's precision statements and requires a temperature sensor
centering device. These updates improve the accuracy of the temperature
readings.\19\
---------------------------------------------------------------------------
\18\ See ``Staff Report: Initial Statement of Reasons, Public
Hearing to Consider Amending the Test Methods Designated for
Determining Olefin Content and Distillation Temperatures of
Gasoline,'' CARB, September 29, 2000, at pg. 2.
\19\ Id. at 4.
---------------------------------------------------------------------------
In sum, we believe that the analyses underlying the CaRFG3
enforcement exemption and our review of updates to the compliance
provisions and test methods in the CaRFG3 program demonstrate that the
CaRFG3 regulations are practically enforceable, consistent with the
requirements of CAA section 110(a).
Comment 2: The commenter asserted that CaRFG3 is not enforceable
because the Predictive Model is neither in the SIP nor part of this SIP
revision. Specifically, the commenter asserted that ``CARB produced the
CaRFG3 Predictive Model as a way to predict whether various RFG
compositions, or recipes, will result in acceptable emissions when used
in motor vehicles,'' and that ``[t]he CaRFG3 program and resulting
emission reductions depend entirely on the Predictive Model.'' The
commenter stated that in order for CaRFG3 to be enforceable, its
requirements must be clearly spelled out, and that these requirements
are contained within the Predictive Model. The commenter also asserted
that in order for the CaRFG3 emissions reductions to be creditable to
[[Page 26655]]
attainment or Reasonable Further Progress (RFP) demonstrations, the
Predictive Model must be included in the SIP.
Finally, the commenter asserted that this argument is ``not merely
a symbolic procedural argument'' and that SIP approval of the
Predictive Model ``ensures that CARB does not change the model, perhaps
unwittingly or even underhandedly weakening it, without first
subjecting any such change to EPA scrutiny under Sec. 110(l).'' The
commenter reiterated its assertion that EPA has not made the necessary
determination that the submitted SIP revisions are enforceable.
Response 2: We are approving the Predictive Model Procedures into
the California SIP as part of this action. CARB initially submitted the
Predictive Model Procedures to EPA on June 15, 2004, and submitted
revisions on February 3, 2009. The Predictive Model Procedures are
incorporated by reference into the CaRFG3 regulations,\20\ which
require that producers or importers of gasoline comply with the
Predictive Model Procedures in evaluating whether gasoline meeting
alternative specifications in lieu of CaRFG3 specifications will
achieve equivalent emission reductions.\21\ See also Response 1 and
footnote 10, above (describing CARB's updates to the Predictive Model
Procedures). We believe that our approval of the Predictive Model
Procedures into the SIP addresses the commenter's concerns about the
enforceability of the CaRFG3 program, in addition to the crediting of
CaRFG3 emissions reductions to attainment or Reasonable Further
Progress (RFP) demonstrations.
---------------------------------------------------------------------------
\20\ See 13 CCR sections 2260(a)(8.5), 2260(a)(19.7), and
2265(a)(2).
\21\ 13 CCR section 2265(a)(2).
---------------------------------------------------------------------------
Comment 3: The commenter stated that EPA had failed to adequately
evaluate whether the proposed SIP revisions satisfy the requirements of
CAA section 110(l). Specifically, the commenter asserted that EPA's
analysis did not adequately support the Agency's conclusion that the
proposed revisions do not interfere with applicable requirements
concerning attainment and RFP, or other applicable requirements. The
commenter asserted that EPA's proposal contained ``the same conclusory
statement for both the CaRFG3 and diesel fuel rules that, `because the
submitted SIP revisions strengthen the requirements of the approved
SIP, EPA has determined that approval of these regulations is
consistent with CAA section 110(l).' 74 FR 33198-33199.'' The commenter
noted that EPA had provided more detailed analyses in its Technical
Support Document (TSD) but stated that in several cases, EPA had not
provided the requisite section 110(l) analysis.
For example, the commenter stated, EPA's proposed approval of
section 2261(b)(7) of title 13, California Code of Regulations (CCR)
was not addressed in EPA's TSD or supported by an adequate section
110(l) analysis. The commenter stated that ``EPA proposes to approve
Sec. 2261(b)(4), (5), and (6) because they do not affect emission
reductions, but does not provide the same conclusion for Sec.
2261(b)(7).''
As a second example, the commenter stated that EPA's TSD did not
address the increase of the maximum denaturant content from 4.76% to
5.00% as set forth in 13 CCR section 2262.9. The commenter stated that
EPA had identified changes to this provision as ``non-substantive
clarifying changes,'' but that increasing the allowable denaturant
content is a ``substantive non-clarifying change.'' The commenter
asserted that EPA's failure to consider the potential interference of
these changes with applicable requirements is arbitrary and capricious.
Response 3: Section 110(l) of the CAA states that EPA ``shall not
approve a revision of a [SIP] if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress * * * or any other applicable requirement of [the Act].'' 42
U.S.C. 7410(l). As explained in the TSD for our proposal, most of the
CaRFG3 program revisions are either improvements or minor
clarifications that will not affect emissions. To the extent that some
substantive changes may result in increased emissions, as explained
further below, we believe these potential emissions increases are
offset by other substantial program improvements that reduce emissions
and therefore, considered together, will not interfere with any
applicable requirement concerning attainment of the National Ambient
Air Quality Standards (NAAQS), RFP, or any other applicable requirement
of the Act.\22\
---------------------------------------------------------------------------
\22\ We note also that California Health & Safety Code Sec.
43013.1 requires that the CaRFG3 regulations preserve the emissions
and air quality benefits of the CaRFG2 program.
---------------------------------------------------------------------------
First, as to the commenter's assertion that EPA did not adequately
evaluate 13 CCR section 2261(b)(7) in the CaRFG3 regulations, we have
evaluated this provision and concluded that our approval of it
satisfies section 110(l) requirements. Section 2261(b)(7) contains a
temporary measure that allows gasoline producers and importers that
comply with the revised Predictive Model Procedures prior to their
effective date \23\ to blend higher volumes of denatured ethanol into
California Reformulated Blendstock for Oxygenate Blending (CARBOB) than
the amount specified by the common carrier pipeline specifications.\24\
CARB adopted this provision as an early compliance measure, to
temporarily allow for some flexibility to increase denatured ethanol
blending provided the resulting gasoline meets all emission reduction
requirements calculated in accordance with the revised Predictive Model
Procedures.\25\ As such, even during the early compliance period,
section 2261(b)(7) does not allow for exceedances of existing emission
standards and, therefore, does not interfere with any applicable
requirement concerning attainment, RFP, or any other applicable
requirement of the Act.\26\
---------------------------------------------------------------------------
\23\ The updates to the Predictive Model Procedures, which
become effective December 31, 2009, were the most significant of the
recent revisions to the CaRFG3 program. 13 CCR section 2265; CARB
Staff Report at 1. See also fn. 10, supra.
\24\ A producer or importer may elect to blend higher volumes of
ethanol into CARBOB under section 2261(b)(7) only if the producer or
importer satisfies numerous notification, recordkeeping, and
reporting requirements to ensure that all emission reduction
requirements are met. 13 CCR section 2261(b)(7); see also CARB FSOR
at pg. 4.
\25\ See 13 CCR section 2261(b)(7)(B)(1); CARB FSOR at pg. 4.
\26\ We note also that the SIP-approved California RFG
regulations do not regulate the composition of denatured ethanol
that can be blended with CARBOB to produce CaRFG. See 13 CCR
Sec. Sec. 2260-2262.1 (adopted September 18, 1992); 60 FR 43383
(August 21, 1995). Use of denatured ethanol as an oxygenate in
California gasoline became more widespread following California's
prohibition of MTBE in California gasoline starting December 31,
2003. 13 CCR section 2262.6.
---------------------------------------------------------------------------
Moreover, this temporary measure expires on December 31, 2009,
after which the rule requires compliance with the revised Predictive
Model Procedures and prohibits blending any higher volume of denatured
ethanol into CARBOB than the amount specified by the common carrier
pipeline specification.\27\ Because our approval of these revised
regulations will not become effective until after this early compliance
measure has expired, our approval of this provision has no effect on
emissions and will not interfere with applicable requirements under CAA
section 110(l).
---------------------------------------------------------------------------
\27\ 13 CCR sections 2261(b)(7)(A), 2265.
---------------------------------------------------------------------------
Second, as to the commenter's assertion that EPA did not adequately
evaluate the increase in maximum allowed denaturant \28\ content from
[[Page 26656]]
4.76% to 5.00% under 13 CCR section 2262.9, we have evaluated this
provision also and concluded that it satisfies section 110(l)
requirements. California's SIP-approved RFG program does not contain
any limit on the volume of denaturant that may be blended with
gasoline.\29\ As such, the addition of this limit to the SIP program
does not interfere with any applicable requirement concerning
attainment of the NAAQS or any other applicable requirement of the Act.
Additionally, we note that this change was designed to align the CaRFG3
program with the current ASTM standards and does not alter any emission
reduction requirements.\30\
---------------------------------------------------------------------------
\28\ A denaturant is added to ethanol to ensure that it cannot
be ingested, and to allow for ethanol to be transported and handled
as an industrial fluid rather than a controlled substance subject to
regulation by the Bureau of Alcohol Tobacco and Firearms. See CARB
Staff Report at pg. 40.
\29\ See 13 CCR section 2262 (adopted September 18, 1992); 60 FR
43383 (August 21, 1995). See also fn. 26, supra.
\30\ The 4.76% denaturant limit in the pre-2007 CaRFG3
regulations was based on earlier versions of the ASTM standard
specification for denatured fuel ethanol for blending with gasoline
(ASTM 04806-99). See CARB Staff Report at pg. 40.
---------------------------------------------------------------------------
Finally, the CaRFG3 regulations were specifically designed to
mitigate the increases in evaporative emissions (referred to as
``permeation'' \31\) from on-road vehicles resulting from the addition
of ethanol to gasoline.\32\ The CARB Staff Report states that the
revised CaRFG3 program would ``eliminate or offset all ethanol
permeation effects from motor vehicles and a significant portion of the
permeation effect from off-road applications.'' \33\ Although the
proposed revisions were not expected to fully mitigate the emissions
impact of the increase in permeation emissions from off-road sources,
these relatively small emission increases are outweighed by the
significant reductions in emissions from on-road sources, together with
the updated compliance provisions that improve the enforceability of
the program, as discussed above in Response 1. As such, the CaRFG3 rule
revisions do not interfere with any applicable requirement concerning
attainment or RFP, or any other applicable requirement of the Act,
consistent with CAA section 110(l).
---------------------------------------------------------------------------
\31\ The Federal Complex Model at 40 CFR 80.45 does not take
permeation emissions from ethanol use into account.
\32\ See 13 CCR section 2262.6; CARB Staff Report, Executive
Summary, pp. i, xviii. Starting December 31, 2003, the CaRFG3
regulations prohibited California gasoline produced with MTBE and
placed a conditional ban on the use of any oxygenate other than
ethanol as a replacement for MTBE in California gasoline. Id. at ii.
\33\ Id. at xvii, xviii.
---------------------------------------------------------------------------
Comment 4: The commenter asserted that EPA's approval of the
``offsetting emissions associated with higher sulfur levels''
compliance option would violate CAA section 110(l). The commenter
stated that the ``averaging option'' in section 2265.1 allows for fuel
that does not comply with CaRFG3 to be averaged with cleaner batches of
gasoline--i.e., that it allows for noncompliant fuel to be sold and the
excess pollution from use of such noncompliant fuel to be offset with
credits from cleaner batches from that facility. The commenter asserted
that ``EPA proposes to approve this provision with one sentence of
analysis,'' despite a relatively complex compliance scheme.
Specifically, the commenter raised three concerns about this provision:
First, the commenter stated that attainment and RFP demonstrations
rely on transportation emission inventories based on CaRFG3 compliant
fuel, and that the ``averaging option'' may interfere with these
demonstrations by allowing producers or importers to produce
noncompliant fuel during the ozone season (May-October) and ``offset
the deficit'' up to three months later.
Second, the commenter stated that attainment and RFP demonstrations
relying on CaRFG3 emission reductions could be compromised because
there is no geographic requirement for the ``credit'' fuel to be used
in the same airshed as the noncompliant fuel.
Third, the commenter stated that the rule allows for tripling the
allowable sulfur content of certain fuels, from 10 ppm up to the
Federal 30 ppm sulfur standard, which could result in substantial
increases in emissions.
Response 4: We disagree and believe that our approval of the
``offsetting'' compliance option referenced by the commenter, and in
particular section 2265.1, is consistent with the requirements of CAA
section 110(l).
Section 2265.1 contains detailed requirements for the offsets that
must be achieved by a producer or importer who elects to comply with
the ``[Predictive Model] emissions offsetting compliance option'' under
section 2264.2(d) (``PM offset option''). The PM offset option is
available only to producers and importers that meet specified criteria
\34\ and essentially allows for the production or importation of
higher-sulfur batches of gasoline provided the emission impacts of the
higher-sulfur batch are fully mitigated through subsequent cleaner
batches of gasoline at the same facility.\35\ The PM offset option
provides gasoline producers and importers some flexibility in meeting
the 20 parts per million by weight (ppmw) sulfur content flat limit in
the CaRFG3 regulations,\36\ which is lower than the Federal sulfur
content limit of 30 ppm \37\ and became effective on December 31,
2003.\38\
---------------------------------------------------------------------------
\34\ For example, the producer or importer must not be subject
to any outstanding requirements to provide offsets at the same
production facility or import facility under section 2264(c). 13 CCR
section 2264.2(d)(1)(E).
\35\ 13 CCR section 2265.1.
\36\ 13 CCR section 2262. A ``flat limit'' is ``a single limit
for a fuel property that applies to all California gasoline sold or
supplied from a California production facility or import facility.''
CARB, California Procedures for Evaluating Alternative
Specifications for Phase 3 Reformulated Gasoline Using the
California Predictive Model, last amended April 25, 2008, at pg. 8
(definitions).
\37\ 40 CFR 80.195(a)(1).
\38\ CARB, Final Regulation Order, ``Amendments to the
California Reformulated Gasoline Regulations to Postpone Imposition
of the CaRFG3 Standards and the Prohibition of MTBE and Oxygenates
Other Than Ethanol in California Gasoline from December 31, 2002 to
December 31, 2003,'' Adopted November 8, 2002, at 13 CCR section
2261(b)(1)(B).
---------------------------------------------------------------------------
Specifically, section 2265.1(a) contains detailed notification,
reporting, and recordkeeping requirements that enable CARB to ensure
that the increased emissions from higher-sulfur batches permitted under
the PM offset option are in fact fully mitigated. For example,
subsection (a)(2)(A) requires that a producer or importer electing to
use the PM offset option provide to the Executive Officer in writing,
before the start of physical transfer of the gasoline from the
production or import facility, specific information about, among other
things: the percent change in emissions values for NOX,
total ozone forming potential, and potency-weighted toxics for the
targeted alternative fuel specifications; the production facility or
import facility name, batch name, blend identity, grade of California
gasoline, and location (with sufficient specificity to allow CARB
inspectors to locate and sample the gasoline); the designated emissions
offsetting limit for Reid vapor pressure, sulfur content, benzene
content, aromatics content, olefins content, and other fuel
characteristics; and within 24 hours after the start of the physical
transfer, the date and time of the start of physical transfer from the
production or import facility. This information enables CARB to
identify who is blending fuels with elevated sulfur levels, how much is
being blended, the potential air pollution impacts of the elevated
sulfur level, and the specific time that the physical transfer of the
gasoline from the production or import facility is completed.\39\
---------------------------------------------------------------------------
\39\ 13 CCR section 2265.1(a)(2)(A). See also CARB FSOR at pg.
25.
---------------------------------------------------------------------------
Then, within 90 days after the start of physical transfer of such
higher-sulfur gasoline, the producer or importer who has elected to
comply with the PM
[[Page 26657]]
offset option must complete physical transfer, from the same facility,
of California gasoline with a ``final blend credit'' \40\ in sufficient
quantity and for the same emissions parameter (NOX, total
ozone forming potential, or potency-weighted toxics) to fully offset
the ``final blend deficit.'' \41\ This 90-day limit and the requirement
to produce the ``credit fuel'' from the same facility provide a
reasonable connection between the emissions from the non-compliant fuel
and the offsetting emission reductions.
---------------------------------------------------------------------------
\40\ ``Final blend credit'' is defined as ``the credit from a
final blend of gasoline that may be used to offset a producer's or
importer's final blend deficit'' and must be calculated in
accordance with a specified formula provided in the definition. 13
CCR section 2260(a)(10.5).
\41\ ``Final blend deficit'' is defined as ``the deficit from a
final blend of gasoline that a producer or importer must offset''
and must be calculated in accordance with a specific formula
provided in the definition. 13 CCR section 2260(a)(10.7). For
purposes of complying with the PM offset option, section 2265.1(c)
also requires that the ``final blend deficit'' be multiplied by a
specific factor that increases the amount of required offsets from
the ``credit'' blend.
---------------------------------------------------------------------------
Finally, the testing and recordkeeping requirements of 13 CCR
section 2270 have been revised to apply to any producer or importer
that has elected to be subject to the PM offset option pursuant to
section 2264.2(d). As such, each producer or importer who elects to be
subject to the PM offset option is required to, among other things:
Sample and test for numerous characteristics of the final blend
produced or imported, including the sulfur, aromatic hydrocarbon,
olefin, oxygen, and benzene content; maintain, for two years from the
date of each sampling, records showing the sample date, identity of
blend sampled, container or other vessel sampled, final blend volume,
and fuel characteristics; and provide to the Executive Officer any such
records within 20 days of a written request.\42\
---------------------------------------------------------------------------
\42\ 13 CCR section 2270(a).
---------------------------------------------------------------------------
To the extent that the emissions from noncompliant fuel may occur
during the ozone season and the deficit offset three months later, or
that ``credit'' fuel may be used in an airshed that has better air
quality than the airshed where the noncompliant fuel is used, as the
commenter notes may occur, these possibilities do not alter our section
110(l) analysis. The likelihood of adverse air pollution impacts \43\
from such events is counterbalanced by a similar likelihood of air
quality improvements, i.e., that emission reductions from credit fuel
may occur during the ozone season or within a more polluted airshed, to
offset emissions from noncompliant fuel produced outside of the ozone
season or in a less polluted airshed. In any event, we believe the
rigorous monitoring, recordkeeping and reporting requirements in
section 2265.1, together with the detailed requirements for calculating
offsets, as discussed above, will ensure that any emissions increases
resulting from noncompliant fuel permitted under the PM offset option
will be offset by an equivalent or greater amount of emission
reductions.
---------------------------------------------------------------------------
\43\ We note that these emissions effects are not likely to
occur. According to CARB, unlike most other fuel properties governed
by the CaRFG3 rules, increases in sulfur levels in individual
batches do not result in immediate emission increases in vehicles
using the batch, and although sulfur degrades catalyst performance
the effect is reversible. See CARB FSOR at pg. 24; CARB Staff Report
at pg. 36.
---------------------------------------------------------------------------
It is important to note that, even taking into account the PM
offset option, the CaRFG3 sulfur content limits that we are approving
today are substantially more stringent than the sulfur content limits
in California's SIP-approved RFG program, which establishes a flat
limit of 40 ppm and an option to establish a higher sulfur limit
accompanied by offset requirements.\44\ Furthermore, we note that
section 2265.1 provides an alternative compliance option only for
purposes of meeting California's more stringent sulfur content flat
limit of 20 ppmw and does not alter the applicability of the federal
sulfur content limit of 30 ppm.\45\ As such, in no event may a higher-
sulfur batch of gasoline that qualifies for the PM offset option under
section 2264.2(d) exceed the Federal sulfur content limit of 30 ppmw.
---------------------------------------------------------------------------
\44\ See 13 CCR section 2262.2 (adopted September 18, 1992); 60
FR 43383 (August 21, 1995).
\45\ 40 CFR 80.195(a)(1). See also ``Technical Support Document
for EPA's Proposed Approval of Rule Revisions for Reformulated
Gasoline and Diesel Fuel Sold or Supplied as Motor Vehicle Fuels in
California,'' June 30, 2009 (TSD), at pg. 2.
---------------------------------------------------------------------------
In sum, given the detailed recordkeeping, reporting, and testing
requirements associated with the PM offset option, the detailed
criteria for calculation of the required offsetting emission
reductions, the substantial strengthening of the sulfur content limits
in comparison to the SIP-approved limits, and the upper bound of 30
ppmw in the Federal regulations, we believe that our approval of the PM
offset option does not interfere with any applicable requirement
concerning attainment, RFP, or any other applicable requirement of the
Act.
Finally, as to the commenter's assertion that the rule allows for
tripling the allowable sulfur content of certain fuels, we disagree. As
explained above, the current CaRFG3 standards establish a 20 ppmw
sulfur content flat limit for producers and refiners of California
gasoline.\46\ The offsetting compliance option in section 2265.1 allows
a producer to mitigate the excess emissions of a gasoline batch that
exceeds the 20 ppmw sulfur content flat limit, but it does not allow
any exceedance of the Federal 30 ppm sulfur content limit.
---------------------------------------------------------------------------
\46\ 13 CCR section 2262. CARB has stated that sulfur levels in
CaRFG3 currently average about 10 ppmw but has not established a
sulfur cap limit at this level. See FSOR at pg. 17.
---------------------------------------------------------------------------
Comment 5: The commenter asserted that the ``Alternative Emission
Reduction Plan (AERP) creates a loophole which compromises
enforceability of the rule,'' and that the CARB Executive Officer has
discretion to approve an AERP without verifying the required emission
reductions. Specifically, the commenter stated that the AERP does not
contain adequate reporting, monitoring or verification provisions to
ensure that the emission reductions are being carried out as proposed,
and that the AERP ``only requires the producer, importer, or third
party to submit to the Executive Officer `information that establishes
* * * the offsets accrued.' 13 CCR 2265.5(i)(1). Furthermore, the
commenter stated, ``the types of emissions offsets allowed [by the
AERP] are particularly prone to be speculative, and may in many
instances not actually produce the emissions reductions used to offset
increased emissions from permeation.''
For example, the commenter stated, the ``incentive grants'' option
in section 2265.5(i)(3) allows for speculative and difficult-to-enforce
offsets because it allows entities to claim offsets ``associated with
incentive grants for cleaner-than-required engines, equipment and other
sources of pollution * * *.'' The commenter asserted that standards for
the Executive Officer in determining whether these emission reductions
are real, additional, and enforceable are ``wholly absent from the AERP
and the rule.''
Response 5: We disagree. The Alternative Emission Reduction Plan
(AERP) provision in 13 CCR section 2265.5 is a temporary flexibility
option to ensure that emission increases caused by the addition of
ethanol to gasoline are fully mitigated consistent with State law
requirements.\47\ We believe the rule contains adequate compliance
provisions, enforcement mechanisms, and limitations on the Executive
Officer's discretion to meet the enforceability requirements of CAA
section 110(a).
---------------------------------------------------------------------------
\47\ See CARB FSOR at pg. 12 (citing California Health and
Safety Code section 43013.1(b)(1)).
---------------------------------------------------------------------------
Specifically, section 2265.5 provides gasoline producers an
alternative option
[[Page 26658]]
to offset emissions from ethanol permeation while refinery
modifications are being made to allow the production of fuel
formulations that fully comply with CaRFG3 standards.\48\ An AERP is
available only to a producer or importer who, among other things, would
satisfy all of the criteria for approval in the applicable Predictive
Model Procedures ``but for the elevated emissions associated with
permeation.'' \49\ All AERPs sunset on December 31, 2011, with the
possibility of an extension of up to one year.\50\
---------------------------------------------------------------------------
\48\ See CARB FSOR at pg. 37.
\49\ 13 CCR section 2265.5(a)(3).
\50\ 13 CCR section 2265.5(a)(6).
---------------------------------------------------------------------------
Contrary to the commenter's assertion, section 2265.5 contains
rigorous monitoring, reporting, and verification provisions to ensure
that the proposed emission reductions under an AERP will be achieved,
in addition to specific procedures for Executive Officer action on an
AERP application.
First, section 2265.5 establishes detailed testing, recordkeeping
and reporting requirements. An application for an AERP must contain,
among other things: Calculations of the total emissions of oxides of
nitrogen (NOX), total ozone forming potential, and potency-
weighted toxics that would be associated with the use of California
gasoline were the producer or importer to eliminate the emissions
associated with permeation from its gasoline; documentation of the
amounts of these pollutants associated with the producer's or
importer's gasoline; a demonstration that the emission reduction
strategy(ies) in the AERP will result in equivalent or better emission
benefits for these pollutants than would be achieved through
elimination of permeation emissions from the gasoline for the same
affected region and for the period the AERP will be in effect; the
date(s) that the offsets will accrue and expire for each emission
reduction strategy; and the proposed recordkeeping, reporting,
monitoring, and testing procedures that the producer or importer plans
to use to demonstrate continued compliance with the AERP.\51\
---------------------------------------------------------------------------
\51\ 13 CCR Sec. 2265.5(b).
---------------------------------------------------------------------------
Following approval of an AERP, section 2265.5(h)(1) requires the
producer or importer to provide the Executive Officer with detailed
information, before the start of physical transfer, about the estimated
volume of the gasoline blend; the identity of the approved AERP and the
NOX, total ozone forming potential, and potency-weighted
toxics emission limits stated in that plan; supporting documentation,
calculations, and emissions test data; and within 24 hours after the
start of the physical transfer, the date and time of the start of
physical transfer from the production or import facility. Section
2265.5(i) also requires the producer or importer to notify the
Executive Officer in writing of the date that the offsets actually
accrued, together with all documentation, calculations, emissions test
data, and other information that establishes the amounts of emission
reductions. Together, these provisions provide clear information upon
which the Executive Officer can base a determination whether the
proposed emission reductions (i.e., the offsets) are real, additional,
and enforceable, and to actually verify the emission reductions
following physical transfer of the gasoline blend.
Second, section 2265.5(c) establishes specific procedures for the
Executive Officer's action on an AERP application. Among other things,
the Executive Officer is required to make available for public review
all documents pertaining to an AERP, provide notice of each application
to specified parties in addition to public notice, and provide a 30-day
public comment period, after which the Executive Officer may take final
action to ``either approve or deny'' the AERP application. These
procedures provide the public an opportunity to participate in the
decisionmaking process on an AERP and limit the Executive Officer's
discretion to either approving the application, if it satisfies the
requirements specified in section 2265.5(b), or denying it if it does
not.
Finally, section 2265.5(e) establishes specific enforceable
prohibitions on, among other things, selling or producing gasoline that
creates emissions associated with permeation except in compliance with
an approved AERP; failure to meet any requirement of section 2265.5 or
any condition of an approved AERP; false reporting of any information
contained in an AERP or supporting documentation; and any net
exceedance of NOX, total ozone forming potential, or
potency-weighted toxics during the period of the AERP. Violations of
these provisions are subject to civil penalties under section 43027 of
the California Health and Safety Code.\52\ These clear prohibitions,
together with the specific information and compliance provisions
required in each AERP application, provide adequate means for CARB to
take enforcement action where the proposed emission reductions are not
achieved, as well as for other violations of AERP conditions.
---------------------------------------------------------------------------
\52\ Health and Safety Code section 43027 states that ``[a]ny
person who violates any provision of this part, or any rule,
regulation, permit, variance, or order of the state board,
pertaining to fuel requirements and standards * * * is strictly
liable for a civil penalty of not more than thirty-five thousand
dollars ($35,000).'' H&SC section 43027(c). Negligent violations can
result in civil penalties of up to $50,000 and willful and
intentional violations can result in civil penalties of up to
$250,000. H&SC section 43027(a), (b).
---------------------------------------------------------------------------
Taken together, these detailed compliance mechanisms ensure that
only those AERPs that satisfy the detailed requirements specified in
section 2265.5(b) will be approved, and the procedural regulations
provide an additional assurance of transparent decisionmaking
processes.
The commenter's assertion that the ``incentive grants'' option in
section 2265.5(i)(3) ``allows for speculative and difficult-to-enforce
offsets'' is not entirely clear. Section 2265.5(i) requires that the
producer or importer subject to an AERP notify the Executive Officer in
writing and provide all supporting documentation of the amount of
NOX, total ozone forming potential, and potency-weighted
toxics associated with the proposed offsets or other reduction
strategies, as provided in the approved AERP, and the date(s) the
offsets accrued. Section 2265.5(i)(3) lists ``incentive grants for
cleaner-than-required engines, equipment and other sources of pollution
providing early or extra emission reductions'' among the emission
reduction strategies for which a producer or importer must provide the
requisite notifications to the Executive Officer. To the extent the
commenter intended to argue that this provision allows for
unenforceable offsets, we disagree for the reasons stated above.\53\
---------------------------------------------------------------------------
\53\ We note, as a practical matter, that CARB has not received
any applications for an AERP or a third-party AERP and does not
expect any. See e-mail from Renee Littaua, Manager, Fuels Section,
CARB, October 20, 2009.
---------------------------------------------------------------------------
Comment 6: The commenter asserted that several elements of the
proposed SIP revisions contain unenforceable ``director's discretion''
provisions and that EPA approval of these provisions would violate CAA
section 110(a)(2)(A). Specifically, the commenter stated that the new
alternative compliance plan provisions in sections 2265.1 and 2265.5,
the addition of these provisions in section 2271 as circumstances in
which a variance may be requested, and the amended CARBOB regulations
in section 2266.5 all provide for director's discretion without
adequate limits on such discretion.
The commenter referenced a ``notation 1'' in EPA's TSD for the
proposed rule, which states that ``Director's discretion is limited by
explicit and replicable procedures within the rule that define how
discretion is to be exercised and that assures equivalent emission
[[Page 26659]]
reductions.'' As applied to 13 CCR sections 2265.5 and 2266.5, the
commenter asserted that this notation ``appears * * * to be an attempt
by EPA to preemptively address concerns regarding director's
discretion.'' The commenter cited several EPA policy statements
regarding director's discretion provisions and appropriate limitations
on such discretion, and stated that the ``notation 1'' in EPA's TSD
``appear[s] to water down the requirement'' that director's discretion
provisions ``tightly define how the discretion will be exercised to
assure equivalent emission reductions.''
In sum, the commenter asserted that EPA has not shown that the
director's discretion provisions in sections 2265.1, 2265.5, 2271, and
the amended CARBOB regulations in section 2266.5 satisfy the
requirements to ``include explicit and replicable procedures which
tightly define how the discretion will be exercised, much less how the
discretion will be exercised to assure equivalent emission
reductions.'' Absent more specific limitations on director's discretion
or a requirement that each exercise of such discretion be approved by
EPA, the commenter stated, these provisions are unenforceable and
violate CAA section 110(a)(2)(A).
Response 6: We disagree. As to sections 2265.1 (PM offset option)
and 2265.5 (AERPs), we believe these provisions are enforceable for the
reasons discussed above in responses 4 and 5, respectively.
Accordingly, the addition of sections 2265.1 and 2265.5 to the
provisions in section 2271 for which a person may seek a variance,
consistent with the criteria outlined in section 2271, is permissible.
Moreover, since our approval of section 2271 into the SIP in 1995,\54\
CARB has revised it to add further criteria governing the Executive
Officer's evaluation of a variance request. These rule revisions define
even more specifically how the Executive Officer is to exercise
discretion in acting on a variance request and strengthen the
enforceability of the rule.
---------------------------------------------------------------------------
\54\ 16 CCR section 2271 (adopted September 18, 1992); 60 FR
43383 (August 21, 1995).
---------------------------------------------------------------------------
The SIP-approved version of section 2271 requires that the
Executive Officer's decision to grant or deny a variance be based
``solely upon substantial evidence in the record of the variance
proceeding,'' \55\ and states that a variance may not be granted unless
the Executive Officer makes all of the following findings: (1) That,
because of reasons beyond the reasonable control of the applicant,
requiring compliance with the applicable section(s) would result in an
extraordinary economic hardship; (2) that the public interest in
mitigating the extraordinary hardship by issuing the variance outweighs
the public interest in avoiding any increased emissions of air
contaminants which would result from issuing the variance; and (3) that
the compliance plan proposed by the applicant can reasonably be
implemented and will achieve compliance as expeditiously as
possible.\56\
---------------------------------------------------------------------------
\55\ The Executive Officer is required to hold a public hearing
on each application containing the required information, to make the
application available to the public at least 20 days prior to the
hearing, to provide a reasonable opportunity to submit written and
oral testimony at the hearing and to consider such testimony. 13 CCR
section 2271(b), (c) (adopted September 18, 1992); 60 FR 43383
(August 21, 1995).
\56\ 16 CCR section 2271 (adopted September 18, 1992); 60 FR
43383 (August 21, 1995).
---------------------------------------------------------------------------
These requirements remain unchanged. CARB has, however, revised
section 2271 to require that each of these three findings be made in
accordance with detailed factors listed in section 2271(e). For
example, in determining whether the public interest in mitigating the
extraordinary hardship by issuing the variance outweighs the public
interest in avoiding increased air emissions, the Executive Officer
must ``consider the potential effects of issuing or denying the
variance on the applicant's customers, the producers of complying fuel,
the general public, and upon air quality,'' and must also consider
whether granting the variance will place the applicant at a cost
advantage over other persons, including those persons who produce
complying gasoline.\57\ Importantly, in evaluating the potential effect
of the variance upon air quality, the Executive Officer must estimate
both the excess exhaust emissions and the excess evaporative
hydrocarbon emissions that will result from granting the variance in
accordance with specific calculations, including use of the California
Predictive Model Procedures with specified inputs.\58\ These new
provisions tightly define how the Executive Officer's discretion will
be exercised to assure equivalent emission reductions.
---------------------------------------------------------------------------
\57\ 13 CCR section 2271(e)(2) (2007).
\58\ 13 CCR section 2271(e)(2)(B) (2007).
---------------------------------------------------------------------------
As to section 2266.5 (amended CARBOB regulations), the commenter
has not identified any discretionary provisions that are of particular
concern. In the absence of a more specific explanation, we have
construed the comment to refer to several provisions in section 2266.5
that allow the Executive Officer to enter into protocols for
determining compliance.
For example, section 2266.5(a)(2)(E) authorizes the Executive
Officer to enter into a written protocol with an individual producer or
importer for the purpose of specifying an alternative method for
determining whether a final blend of CARBOB complies with the standards
for California gasoline, ``as long as the executive officer reasonably
determines that application of the protocol is not less stringent or
enforceable than application of the express terms of [the applicable
standards].'' Section 2266.5(b)(4) imposes identical conditions on the
Executive Officer's authority to enter into a written protocol with an
individual producer or importer for the purpose of specifying how the
requirements for certain notifications to CARB should be applied to the
producer's or importer's particular operations. We believe that section
2266.5 adequately defines how the Executive Officer's discretion is to
be exercised for these limited purposes.
Comment 7: The commenter asserted that EPA must make another
equivalency determination to maintain the RFG enforcement exemption for
California. Specifically, the commenter stated that EPA ``relies
heavily on an earlier equivalency determination made in December 2005
in the context of an RFG enforcement exemption request approval,'' that
the relevance of the 2005 enforcement exemption is unclear, and that
``because significant changes are being proposed to the California RFG
regulations, EPA must make another equivalency determination to
continue exempting California gasoline from RFG regulation.''
Response 7: We disagree. The CAA does not require that EPA revisit
an equivalency determination for the RFG enforcement exemption each
time we revise a SIP, and the commenter does not identify any such
requirement. As explained in our response to comment 1, above, we have
concluded that the rationale supporting the CaRFG3 enforcement
exemption in 2005 continues to support our action today.
To the extent the commenter intended to argue that the facts
underlying EPA's 2005 determination have significantly changed, such
that that prior determination is no longer valid, we also disagree.
Neither the CaRFG3 nor federal RFG compliance and enforcement programs
have been significantly revised since our 2005 equivalency
determination.\59\ In the
[[Page 26660]]
proposed rule we also stated that the revisions to the CaRFG3
regulations strengthen the requirements in the existing SIP. The
commenter has not identified any factual changes that call into
question our previous findings.
---------------------------------------------------------------------------
\59\ 74 FR at 33198.
---------------------------------------------------------------------------
Finally, we note that the commenter incorrectly suggests that the
CaRFG3 enforcement exemption allows EPA to ``exempt[ ] California
gasoline from RFG regulation.'' The CaRFG3 enforcement exemption
applies only to certain federal RFG enforcement requirements and does
not exempt California gasoline from any federal RFG standards.\60\
---------------------------------------------------------------------------
\60\ See fn. 8, supra.
---------------------------------------------------------------------------
III. Final Action
Under section 110(k)(3) of the Clean Air Act, EPA is approving
revisions to the California regulations for reformulated gasoline (RFG)
sold or supplied in California, as submitted on June 15, 2004 and
February 3, 2009, and revisions to the regulations for diesel fuel sold
or supplied in California, as submitted on February 3, 2009, as
revisions to the California SIP.
IV. Statutory and Executive Order Reviews
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 not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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 Clean Air Act; 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.
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
