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NO! 8.1993. dCF!%t # 

GEbERALcowsa ~ 

SUBJECT: Requirements for Reduced RVP in State ~afntmnanca Plans 

TO: William L. Macbowell, Chief 

Regulation Development Section - 

'Air and Radiation Division, Region S .. % .:- 

FROM: Michaal 

Officr of 

Rorowitz 

General Counsel w. ----- Air an$ Radiation Division 

- his memorandum is ih response to the memorandun that yau 

sent to Jan Tierney, Paul Argycopolous and myself regarding the - likalihood that thr U.S. Environmental Protection whey (EPA) 

would approve a stata maintenance plan for a particular.ozone 

nonattainment area where the state requires that gasoline and 

alcohol related fuels sold in the area have a lover volatility 

(Reid Vapor Pressure - RVP) than is reyuired under federal Clean h Air Act regulations. This issue arose because the Ohio * 

Environmental Protection Agency (OEPA) has announced its 

intention to request that the Dayton moderate ozone nonatta-ent 

area be redesignated as attainment. The redesignation requert.'~ 

10-year maintenance plan, a8 currently drafted, r-bag the us. 

of fuels with RVP of 7.8 psi or lower. This requirement is more 

stringent than the 9.0 psi federal RVP standard that fs in effect 

for tht Dayton areal governments are generally preempted under 

section 21 of Me Clean ~ir Act (CAA) from requiring a 

d for gasoline and alcohol fuels than that 

Section 2ll(c) (4) forbids any state except 

adopting or enforcing any control or prohibition 

respecting say characteristic or component of a fuel for purpoms 

of motor vehicle control if EPA has pramulgated a control or 

prohibition applicable to such characteristic or component under 

clta section 211(c) (I), unless the stata control or prohibition is \ 

identicax to EPArs regulations, As the federal RVP stand* 

vere pramalgated unde srction 2ll(c)(l) (as well as rrction 

211m)). the general prohibition applies to state RVP controls. 
However, an exception to the general prohibition on state - 

and local govuments exists Under CAA section 2ll(c) (4) (C) . A ' 

state may implament a more stringent RVP requirement if an - 

applicable state implcmcntation plan (SIP) for the state prwides for such fuel cantral. EPA may approve such a SIP provision 

where EPA finds that the state control is necessary to achieve 

the national ambient air quality standard (NAAQS), i'n this case, 

for ozone- The EPA has approved SIP provisions for 'IZVP controls 

in,several instances where states have shown that such conttols 

were necessary to achieve attaidt in ozone nonattahent 

,areas. In addition, EPA hai, on occasion, approved plans . . providing for statewide RVP control in attainmemt and 

nonattainment areas where the state demonstrated that the 

statewide RVP control was necessary to achievu the NUQS in . 

nonattaiment areas within tha stata and/or in nmigkboring 

states. a EPA approval of Revisions to the stat* 

.implementation plans for ozona for Pew York (54 FR 26030,aiBaxae 

21, 1989) and New Jersey (54 'PR 25572, me 16, 1989). All .- 

prev5ous SXP approvals'were premised on a showing that the RVP,' 

reduction was necessary to achieve the orom -6 in anieb: - 

that was currently not in attainment- 

.. In Ule Ohio situation. hwevcr, your memorandum indicates 

that,the Dayton area bas alreqdy achieved attainment without the 

use of the lower RVP standard. OEPA wishes to implement the 

love standard not to achieve-the ozone NAAQS, but merely to 

provide an missions growth margin to facilitata econoolic growth 

while maintaining tha NAAQS in Dayton. 

Thera is considerable question as to whethe EFA can approve 

a rtate maintenance plan that includes a requirement for Lou RVP 

garolina in an area that has already reachad attainment without 

the lower RVP standard.- The language of rootion tli(cr) (4)' rtates 

that EPA Cah approve SIP6 containing a fuel provision different 

fram the comparable fdaral prbviaion only uhare the SIP 

provision in necessary to devq coarpliancu with a -9. . Section 211(c) (4) does not state that EFA can appro- such a 

provision if it ,is necsssary to compliancq.vith the 

NAAQS, The word aehievaaent (or the synonymeus word attainnent) 

refers to the raaching of a goal that would occur at a spacific 

moment in tiru, EfaMamnce, hwevu, is an ongoing procar8 that 

ent has occurred. The general usage of the 

, Micater that rehiwesnent cannot be 

intenance. 

ections of the Clean Air Act use, phrases ' 

like Wachirvr and maintaina the EMQS or mhpl-nt and maintaina 

the WQS, hdicating that Congrrro under~tood that mahtellanC8 

and acbicrvmmt were not synonyinous and that Conqrrcs - 

s~ciffcally identified maintenan- vhere it intended to include 

maintemamce. For examplr, section 110 of the Act contains 

several refercncls to Misplamentation, maintenance and - 

zoo @ 
enforcementm of the NAAQS' standards Section 110 (a) (2) (D) (i) (I) 

distinguishes between coatribution 

intarfercmcm with maintenance. In section 110(a) (2) (D) 

of tha Clean Air Act, prior to the Act Amendnents of 

1990, requirad any SIP to contain 

necessary to assurr that national 

are achieved and maintainedmU 

Act Amendments of 1990 refers 

NAAQS. -or, thm CAA, as 

that specifically 

clear that Conqresr was 

attaixnuent and maintenance. . . . ,. 

included a ref 

it wished to allov 

requirements are I 

It is, however, possibla &at exclusion of aafn ance 

unde section 2ll(c) (4) (C) vas unin P entional. mere is no -3 c ear 

statemant front Congrass in the 

that thmy intentionalay 

such provisions wrre 

legislative history limited tha 

_-lanquage of In 

addi+ion, when 

was replaced by 

1 - In fact, Congress 

be substanaally 

in the aaendreentb: 

while the House - 

nachieved.* 8 

discussion 

House reps* or in 

at laart some 

lava XtVP fuel and it intends to implement several other control 
measures to maintain the. standard. You state that a maintenance 

plan could be -pared without assuming the use of low-RVP fuel, 

Given these facts, EPA could not approve Dayton's maintenance 

plan if it included a requirement for low-RvP fuel. Therefore, it is highly unlikely that ETA vauld approve Dayton's maintenan- . SIP if it includes a provision to lover the standard for fuel 

volatility bclow the federal standard. 

detcrmfqation does not apply to a situation where a 

former nonattaiment area has achieved NMQS cowpliance with tho 

help of a preexisting (and preapprovd) requirement for low RV9 

gasoline and includes the low RVP requirement in its maintenance 

plan- Where- EPA appraves a state japlementation plan that 

includes a lower RVp standard to achieve campliance in'a 

nonattainment area, and vhere such nonattaiment area ' 

subsequently attains the NAAQS with the help of the lover RVP 

standard, EPA vould not be requked to -reconsider the lwu RVP . 

-- st: dard in acting on the redesignation request. EPA ha-sady - ap?. =ved the state RVP standard as being necessary to achieve 2. 

attainment and the continuation of the standard in a ma tenmc'e 

plan does not compromise the initial detcrtrrination. In is act, the ' * . - 

maintenance ,plan provision oi the CAA, section 175A, requlru SIP 

measures to be included as impleaented maintenance meaaurrs or, - 

-at a minimum, to be included in tho staters contingency plan for 

the .,area. 

- 

In addition, where RVP is not a areasure in the existing SIP, 

the state may be able to include the lov IIVP reguiremant as a 

cantingency measure in its redesignation request. The 

maintenance plan containing such a contingency measure vould need I 

to include several things with respect to such a contingency 

measure- First, in the maintenance plan, the state would need to 1 

provide that if tha former nonattainment area ever fell back into 

nonattainment, the state veuld submit a request to EPA to find, 

under section 2ll(c) (4) (C), that the RVP requiremwt is necessary 

for the area to achieve the ozone NAAQS, Second, since thr 

implementation of a laver RVP vauld rely upon EPArs determination 

of whether it vas necessary to adeve attainment, the &ate 

would need to prwicle far the possibility that a lwer RaP Could 

not be implemented. To do so, the state would need to provide 

for a backup measure in the maintenance plan- The maintmurce 

inelude a cdtmen to adapt, as an alternative - 

measure, measures identified by EPA a8 

denial of the state8s request for a lwer RVP 

stat. chooses to adopt measures 6pecified by 

vided several options for aoceptable measurrrr, 

the state must adopt the requisite number of these measures as is 

necessary to again achieve the standard- The state would need to 

icclude a schedule for submittal of the section 2U(c) (4) (C) 

re*---& to EPA and- a schedule for final adoption and 

kletion of s lower RVP standakd, or the bae-up measure, 

oz the alternativa.neasures; The sohedule would need to be tiad 

too g 
- 

to the triggering event -for the contingency measure, not EPA~S 

action on the 21l(c) (4) [C) request. 

The folloving is an example of hw this psocsss would work. 

Upon the specified triggering ovuk (e.g., Violation of tha 

standard) the state would submit the 2ll(c) (4) (C) roquest to Em 

within the specified tiae frame. The request u,ald have to. 

include the information required for showing of nmceC8ity. 

(The request should note the reasons why the backup measura is 

unreasonable or impracticable.) The EPA ,would determine as 

expeditiously as practicable whether the lower RVP standard was 

necessary to achieve compliande. ... IS FA determines that the 

lower standard is necessary, &.me lower RVP standard would 

need to b. implemented in the Dayton area within the t&e fraae 

specif Led in the maintenance plan, However, if &PA datermined 

that the lower RVP standard is not necusary becaumr other 

reasonable and practicablm umsuro~ utlat, than +hr rt.tm,y-ould 

have to implement the 0th- measures fdontifiad by EPA as 

practicable to achiavm thm standard or hplaaont tho identified 

back-up in t3rr time spocifiad in we maht.llance plan-. -&hGXy, if EPA was unable to he a final section 2ll(c) (4) (C) . . 

determination before Me time identified in the maintenance plan 

for implementation of a contingency measure to promptly correct 

the violation, the state would need to implement the back-up 

measure at that time, . 

I hope this inforbation ia helpful in providing your ' 

response to OEPA- If -you have- any.furtber &estians, please call 

- me at (202) 260-8883,