Assuming arguendo that any SSM exemption from continuous compliance requirements is legally supportable, the exemption provided in the amended General Provisions is unlawfully and unnecessarily broad. " Malfunction" is defined to include " the failure of air pollution control and monitoring equipment, process equipment, or a 63 process to operate in a normal or usual manner which causes, or has the potential to cause, the emission limitations in an applicable standard to be exceeded." 40 C. F. R.

§ 63.2. Thus, if the failure of a piece of equipment has the " potential" to cause an exceedance, the failure of that equipment on any specific occasion qualifies as a " malfunction"   and may be argued to excuse the source from liability for exceeding its emission standards   even if such failure did not actually cause the exceedance on the occasion in question. For example, if the failure of a piece of monitoring equipment has the " potential" to cause an exceedance of emission standards, an exceedance that occurs when that piece of monitoring equipment is failing " to operate in a normal or usual fashion" may qualify as a " malfunction" under the amended General Provisions even if that exceedance actually results from another cause, such as sloppy operation. In short,

EPA's amended General Provisions may be argued to excuse even preventable exceedance of emission standards so long as such exceedance takes place concurrently with an equipment failure that qualifies as a " malfunction" under EPA's overly broad definition. Accordingly, even if the caselaw relating to SSM exemptions from non air toxics emission standards were applicable to air toxics standards, EPA's SSM provision would be unlawful.

2. The SSM Provisions In EPA's Final PWCP Rule Are Internally Conflicting.

The final PWCP rule provides "[ y] ou must always operate and maintain your affected source, including air pollution control and monitoring equipment, according to the provisions in § 63.6( e)( 1)( i)." 40 C. F. R. § 63.2250( b). Section 63.6( e)( 1)( i) of the amended General Provisions provides 64 At all times, including periods of startup, shutdown, and malfunction, the owner or operator must operate and maintain any affect source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. During a period of startup, shutdown, or malfunction, this general duty requires that the owner or operator reduce emissions from the source to the greatest extent which is consistent with safety and good air pollution practices.

40 C. F. R. § 63.6( e)( 1)( i) ( emphasis added).

Section 63.2771 of the final PWCP rule, however, provides ( 1) During periods of startup, shutdown, or malfunction, you must operate in accordance with the SSMP.

( 2) Consistent with § 63.6( e) and 63.7( e)( 1), deviations that occur during a period of startup, shutdown, or malfunction are not violations if you demonstrate to the Administrator's satisfaction that you were operating in accordance with the SSMP.

40 C. F. R. § § 63.2771( b)( 1)( 2) ( emphasis added). Thus, although § 63.2250( b) of the final PWCP rule makes clear that even during periods of startup, shutdown and malfunction, owners and operators must " reduce emissions from the source to the greatest extent which is consistent with good air pollution practices," § 63.2771 allows sources to avoid liability for exceeding emission standards in such periods just by " demonstrat[ ing] to the Administrator's satisfaction that [ it was] operating in accordance with the SSMP. In short, the two provisions directly conflict.

Section 63.2771 is flatly unlawful, as shown in NRDC's comments on the proposed rule. Ex. __ at 34 35. In addition, because the final PWCP rule contains conflicting SSM provisions, it is arbitrary and capricious. 65 3. The PWCP Rule's Limitations On The Public Availability Of SSM Plans Is Unlawful And Arbitrary And Capricious.

a. The PWCP Rule's Limitations On The Public Availability Of SSM Plans Is Unlawful.

The final PWCP rule provides "[ y] ou must develop and implement a written SSMP according to the provisions in § 63.6( e)( 3)." 40 C. F. R. § 63.2250( c). Section 63.6( e)( 3) of the amended General Provisions provides:

The Administrator may at any time request in writing that owner or operator submit a copy of any startup, shutdown, and malfunction plant ( or a portion thereof) which is maintained at the affected source or in the possession of the owner or operator. Upon receipt of such a request the owner or operator must promptly submit a copy of the requested plan ( or portion thereof to the Administrator. The Administrator must request that the owner or operator submit a particular startup, shutdown, or malfunction plan ( or a portion thereof) whenever a member of the public submits a specific and reasonable request to examine or to receive a copy of that plan or portion of that plan.

40 C. F. C. § 63.6( e)( 3)( v) ( emphasis added). Thus, the final PWCP rule restricts public access to SSM plans for PWCP plants.

The Clean Air Act, however, requires without exception that SSM plans be made available to the public. First, Title V of the Clean Air Act requires that a copy of each " compliance plan" " shall be available to the public." 42 U. S. C. § 7661b( e). Likewise,

EPA's Title V regulations provide that State permitting authorities must "[ m] ake available to the public any   compliance plan   pursuant to section 503( e) of the Act."

40 C. F. R. § 70.4( b)( 3)( viii). As EPA has recognized expressly, SSM plans fall within the meaning of " compliance plan":

the title V program requires the permit writer to make publicly available all parts of the permit, including plans, under 40 CFR 70.4( b)( 3)( viii).

66 Fed. Reg. 16318, 16326 ( March 23, 2001). Because SSM plans are " compliance plan[ s]" within the meaning of § 503( e), they must be made available to the public. 66 Second, § 114( c) of the Clean Air Act requires that SSM plans be made available to the public:

Under CAA section 114( c) and 40 CFR 70.4( b)( 3)( viii), information in SSM plans must be made available to the public unless the submitter makes a satisfactory showing that disclosure would divulge methods or processes that are entitled to protection under the Trade Secrets Act

67 Fed. Reg. at 72880 ( emphasis added). See also EPA, Technical Document for Promulgation of Amendments to Standards ( May 8, 2003), Docket OAR 2002 0038 (" 2003 RTC"), at 8 (" EPA disagrees with the industry commenters who argued that there is no general obligation to provide public access to SSM plans, and that only those plans that the States or EPA actually elect to obtain from the sources must be made available to the public. These commenters argued that EPA has incorrectly construed the SSM plan as an integral part of the permit documentation that must be made available to the public under sections 114( c) and 503( e).") ( emphasis added).

Although the Clean Air Act requires that SSM plans be made available to the public, EPA's regulations impose limits on the public availability of SSM plans.

Accordingly, they are flatly unlawful. Further, to the extent EPA has interpreted the Clean Air Act as allowing it to place limits on the public availability of SSM plans, its interpretation is unlawful under Chevron Step One. Because it is well established that EPA may not limit statutory mandates, any attempt by EPA to limit the Clean Air Act's mandate that SSM plans be publicly available contravenes Congress's plainly expressed intent.

Moreover, any interpretation of the Act as allowing EPA to place limitations on the public availability of SSM plans is also unlawful under Chevron Step Two. The notion that EPA has discretion to limit the public availability of SSM plans is not even 67 arguably consistent with the Act's requirement that such plans be publicly available.

Further, EPA has never explained how any such interpretation could be reconciled with the agency's admission that " information in SSM plans must be made available to the public," 67 Fed. Reg. at 72880. Specifically, although EPA argues that it does not wish to " discourage facilities from integrating SSM plans with other procedures" and that its approach to SSM plans " strike[ s] the right balance between public disclosure and the need to make SSM plans comprehensive and effective," 68 Fed. Reg. at 32591, the agency does not and cannot explain how such policy argument can trump the undisputed statutory mandate that SSM plans be made available to the public.

b. The PWCP Rule's Limitations On The Public Availability Of SSM Plans Is Arbitrary And Capricious.

As discussed above, before issuing its amended General Provisions, EPA expressly agreed that SSM plans fall within the categories of information that must be made available to the public pursuant to § 503( e) and § 114( c) of the Clean Air Act. See supra ( citing 67 Fed. Reg. at 72880). In addition, EPA has found that SSM plans fall within the meaning of " compliance plans" in § 503( e) of the Act and the agency's Title V regulations, 40 C. F. R. Part 70. Discussing the obligation to make SSM plans publicly available, EPA stated " the title V program requires the permit writer to make publicly available all parts of the permit, including plans, under 40 CFR 70.4( b)( 3)( viii)." 66 Fed.

Reg. at 16326 ( emphasis added). Thus, in responding to comment on the present rulemaking, the agency made clear that it disagrees with the industry commenters who argued that there is no general obligation to provide public access to SSM plans, and that only those plans that the States or EPA actually elect to obtain from the sources must be made available to the public. These commenters argued that EPA has incorrectly construed the SSM plan as an integral part of the permit 68 documentation that must be made available to the public under sections 114( c) and 503( e).

2003 RTC at 8 ( emphasis added).

Therefore, EPA's decision to limit public access to SSM plans in the amended General Provisions   and in the final PWCP rule   is arbitrary and capricious as well as unlawful. First, it is hopelessly inconsistent for EPA to concede that, under the Clean Air Act, " information in SSM plans must be made available to the public," 67 Fed. Reg. at 72880 ( emphasis added), but also assert that it has discretion to limit the public availability of SSM plans. EPA's rationale   i. e., that its approach to SSM plans " strike[ s] the right balance between public disclosure and the need to make SSM plans comprehensive and effective," 68 Fed. Reg. at 32591   is arbitrary and capricious for the same reason that it is unreasonable under Chevron analysis. EPA does not, and cannot possibly, explain how it has authority to " balance" a clear and undisputed statutory mandate with its own policy goals.

Second, the premise upon which EPA's position rests   that there is a conflict between implementing the Clean Air Act's undisputed requirement that SSM plans be generally available to the public and providing for effective SSM plans   is false. As EPA itself has made clear, compliance with an inadequate SSM plan does not excuse a facility from compliance with its emission standards. 68 Fed. Reg. at 32590. Because facilities' interest in avoiding liability for exceeding their emission standards during periods of SSM already creates an incentive to write effective SSM plans, EPA does not need to sacrifice the public availability of SSM plans to create additional incentive.

Indeed, if EPA's goal were to create an incentive for facilities to write effective SSM plans, that goal would be far better served by ensuring that such plans are publicly 69 available   and thus allowing the public to evaluate their effectiveness   than by promulgating regulations that allow SSM plans to be shielded from public scrutiny. In short, EPA has not shown a rationale connection between its decision and its stated goal.

Third, EPA has offered nothing but sheer speculation that the obligation to submit SSM plans to the Administrator might deter facilities from integrating SSM plans into their operating procedures or otherwise writing effective SSM plans. Moreover, as explained above, facilities must design effective SSM plans to avoid liability for exceeding their emission standards during periods of SSM. Thus, EPA's rationale for not requiring SSM plans to be submitted to the Administrator is both unexplained and at odds with the record.

Fourth, to comply with the requirement that SSM plans be submitted to the Administrator, a facility need only submit a copy of its SSM plan; it does not have to provide copies of other documents into which the SSM plan has been integrated unless those other documents must be made available to the public for independent reasons.

Thus, regardless of whether it chooses to integrate its SSM plan into its process and operating procedures, a facility can comply with the obligation to make SSM plans publicly available without making publicly available otherwise unavailable information.

To do so, a facility need only submit a separate copy of the SSM plan that has not been integrated with its process and operating procedures.

Fifth, even assuming arguendo that requiring SSM plans to be submitted to the Administrator might deter facilities from writing effective SSM plans, EPA's regulations create the possibility that a facility's SSM plan might be have to be submitted. That possibility would   under EPA's reasoning   deter facilities from writing effective 70 SSM plans. Accordingly, EPA's rationale for limiting the public availability of SSM plans is unexplained, internally inconsistent, and illogical.

9. EPA Must Reconsider the Final Rule's Use of Title V Permits as the Implementation Mechanism for the So Called Low Risk Exemptions.

The PCWP proposal failed to provide any notice of the Title V implementation approach for the section 112( c)( 9) low risk exemptions adopted in the final rule. 98 This Title V implementation approach unlawfully, and arbitrarily and capriciously: ( 1)

attempts to create specific and federally enforceable legal requirements, without noticeand comment rulemaking, through an informal exemption " letter approval" process conducted between a source and EPA behind the scenes; ( 2) imposes those legal requirements upon states and the public by employing a state issued Title V permit to establish applicable requirements; ( 3) does so without providing states or the public with any meaningful, legal opportunity to comment on or challenge those requirements; and ( 4) does so all in contravention of existing EPA legal interpretations and policy that prohibit use of Title V permits for such purposes.

Scattered across the final rule's preamble, the Title V implementation approach for the so called low risk exemptions under § 112( c)( 9)( B) is described thusly:

98 Indeed, the proposal's § 112( c)( 9) discussion did not even mention Title V. See 68 Fed. Reg. at 1301 1302. And even the § 112( d)( 4) discussion asked only the following, uninformative question that failed even to provide adequate notice for § 112( d)( 4) purposes, much less § 112( c)( 9) purposes: " Finally, EPA requests comment on how we should implement the section 112( d)( 4) applicability cutoffs, including appropriate mechanisms for applying cutoffs to individual facilities. For example, would the title V permit process provide an appropriate mechanism?" Id. at 1300 ( emphasis added).

Consequently, the grounds for NRDC's objection to the Title V approach arose after the period for public comment had ended. The objection is thus appropriately raised in this petition. See 42 U. S. C. § 7607( d)( 7)( B). Moreover, the objection is " of central relevance to the outcome of the rule," id., because it demonstrate that the rule contravenes the Clean Air Act and is arbitrary and capricious. 71 For your affected source to be part of the delisted low risk subcategory, you must have a low risk demonstration approved by EPA, and you must then have federally enforceable conditions reflecting the parameters used in your EPAapproved demonstration incorporated into your title V permit to ensure that your affected source remains low risk. Low risk demonstrations for eight facilities were conducted by EPA, and no further demonstration is required for them. They will, however, need to obtain title V permit terms reflecting their status. ( We will provide these sources and their title V permitting authorities with the necessary parameters for establishing corresponding permit terms and conditions.)

69 Fed. Reg. at 45953/ 2 3.

All approved low risk sources must then obtain title V permit revisions including terms and conditions reflecting the parameters used in their approved demonstrations, according to the schedules in their applicable part 70 or part 71 title V permit programs.

Id. at 45955/ 2.

You must ensure that your affected source is low risk by periodically certifying your affected source is low risk, monitoring applicable HAP control device parameters, and by maintaining certain records. You must certify with each annual title V permit compliance certification that the basis for your affected source's low risk determination has not changed. Your certification must consider process changes that increase HAP emissions, population shifts, and changes to dose response values.

Id.

We will review and approve/ disapprove low risk subcategory eligibility demonstrations based on look up table analyses and low risk demonstrations. Following review of each low risk subcategory eligibility demonstration for a facility, we will issue a letter of approval/ disapproval to the facility and will send a carbon copy to the facility's title V permitting authority to be used to develop source specific permit terms and conditions that will ensure that the source remains eligible for the low risk subcategory. The letter of notification regarding approval/ disapproval of an affected source's low risk demonstration will also be sent to any other interested stakeholders. The criteria for low risk subcategory delisting are clearly spelled out in today's final PCWP rule, along with criteria needed to ensure that affected sources in the low risk subcategory remain low risk. Because these requirements are clearly spelled out in today's final PCWP rule and because any standards or requirements created under CAA section 112 are considered applicable requirements under 40 CFR part 70, the terms and conditions demonstrating eligibility for membership in the delisted low risk subcategory would be incorporated into title V permits, pursuant to State's existing permitting programs. 72 69 Fed. Reg. at 46003/ 2 3.

Section 112( c)( 9)( B) requires source category deletions under § 112( c)( 9)( B)( i),

and source category or subcategory deletions under § 112( c)( 9)( B)( ii), to be accomplished by detailed, factual risk or safety based determinations by the Administrator. These determinations cannot be knowable in advance and, with the exception of eight sources, EPA's final rule does not purport to make these determinations with respect to any individual PCWP source. The final rule does not consider the factual basis, or establish the legal terms and conditions, for exempting any given source from the standard on the basis of purported low risk.

Against this backdrop, the preamble to the final rule advances the arbitrary claim that the results of the exemption approval process employed here are simply section 112 applicable requirements that may be incorporated into Title V permits. See 69 Fed. Reg.

at 46003/ 2 3. But there are key legal differences between usual MACT standards,

including MACT exemptions or negative applicability determinations, and the arbitrary hybrid approach created by the final PCWP rule.

First, EPA does not and cannot identify another instance in which a statutorilyrequired " determination by the Administrator," as under section 112( c)( 9)( B), achieves its culmination and embodiment in a Title V permit. EPA identifies no statutory authority in section 112 or Title V indicating Congressional intent to allow such a result.

Second, this result transgresses Title V's function to incorporate   " assure compliance with"   pre existing federally enforceable applicable requirements into operating permits issued by approved permitting authorities, following applicability determinations by the approved permitting authority. The final rule's Rube Goldberg 73 creation contravenes the structure and purpose of Title V in several ways. Unlike the PSD or NSR permitting programs in which the rules contain criteria that are subsequently rendered " applicable requirements" in federally enforceable preconstruction permits, 99 the risk exemption approval process gives definition and content to the qualifying conditions in an unenforceable, legally meaningless " letter." This letter is not a legal permit, nor a contract, nor an " applicable requirement" as that term is defined in parts 70 or 71.100 EPA identifies no previously approved example or analogy under Title V similar to the arbitrary process employed here.

EPA points to language in the part 70 regulations in an attempt to locate authority for its unlawful enterprise to establish applicable requirements in the first instance in a Title V permit:

For example, in its provisions governing what types of permit revisions may proceed through the abbreviated `` minor permit modification'' process, our rules state that such procedures may not be used `` to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.'' 40 CFR 70.7( e)( 2)( i)( A)( 4); 40 CFR 71.7( e)( 1)( i)( A)( 4). We feel that permit terms reflecting a low risk PCWP source's eligibility clearly represent such terms, and are, therefore, allowed under title V.

69 Fed. Reg. at 46005/ 2. But EPA's reliance on this provision is itself revealing, since it makes plain that there is no direct authority under Title V to establish applicable 99 See 40 C. F. R. § 70.2 ( defining " applicable requirement" in relevant part as "[ a] ny term or condition of any preconstruction permits issued pursuant to regulations approved or promulgated through rulemaking under title I, including parts C or D, of the Act.") ( emphasis added). 100 See, e. g., id. ( defining applicable requirement in relevant part as "[ a] ny standard or other requirement under section 112 of the Act"). Indeed, the " criteria for low risk subcategory delisting . . . spelled out in [ the] final PCWP rule" are more akin to the criteria for BACT or LAER in the PSD and NSR permitting programs, where the actual " determinations," with the actual legal conditions and requirements arising out of a case by case review, are not rendered   and do not become enforceable legal conditions   until later. Just as the Title V rules treat the terms and conditions of PSD/ NSR requirements as applicable requirements rather than the " criteria" in the permitting rules, the mere criteria in the final PCWP rule are insufficient to qualify as Title V applicable requirements, and insufficient to render EPA's subsequent letter approvals " applicable requirements" for Title V purposes. 74 requirements in Title V permits. 101 EPA's invocation of this provision simultaneously indicates that the risk parameters will be reflected in permit terms " for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject," id.,

while elsewhere claiming in a directly contradictory fashion that such permit terms would be applicable requirements. See id. at 46003/ 2 3. These internal contradictions reveal the further arbitrariness of EPA's approach.

EPA's protest that this process simply amounts to the usual applicability determination under Title V is simply wrong. In Title V programs administered by states,

the approved permitting authority renders applicability determinations in their permits based upon their application of fully conceived section 112 MACT standards. These state determinations are subject to public hearing, public comment, public challenge in state courts, EPA objection, and eventual petitions to the Administrator.

Under the PCWP's risk based exemption scheme, by contrast, it is EPA that establishes the legal conditions and parameters associated with the risk determination.

EPA would deny the public any opportunity to review and comment upon these determinations before they are a fait accompli. 102 EPA pretends that this situation is " similar to facilities requesting applicability determinations regarding promulgated 101 At any rate, this minor permit modification provision's backhanded suggestion that Title V provides direct authority to " to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject" is simply wrong. EPA points to no statutory or regulatory authority for such a proposition. Moreover, we are unaware of EPA ever having suggested that this provision provides authority to accomplish indirectly what no provision   statutory or regulatory   authorizes directly. To the extent that EPA is offering such interpretation here, it will be ripe for legal challenge. 102 69 Fed. Reg. at 46004/ 1 ( " individual low risk demonstrations will not be subject to public review and comment.") 75 standards," id. at 46004/ 1, but that is a view that pre dates the role of Title V and in fact turns that role on its head.

Title V permit programs, administered by approved permitting authorities, serve the role of subjecting applicability determinations to opportunities for public comment and challenge. The PCWP exemption approval, scheme, however, reduces permitting authorities to the role of ministerial scriveners, meekly accepting " carbon copies" of approval letters from EPA for incorporation into state issued permits. The state authorities do not render these approvals, they have no ownership over them, and they have no reason to stand behind them. Indeed, they could strongly disagree with them,

without any legal recourse to challenge them.

In light of this, it is farcical that EPA points to the public participation opportunities accompanying Title V permits as the public's opportunity to review the determinations and parameters allowing individual sources to qualify for the low risk subcategory. 103 Is it EPA's position that states will have the prerogative and legal authority to reject these determinations, strip these permit conditions and subject the sources to the MACT standard? Is EPA saying that state courts will have the opportunity and authority to reject these determinations? Will EPA Regional officials be empowered to object to state issued Title V permits on the basis of low risk determinations rendered by EPA headquarters? If the answer to any of these questions is No, as we suspect from the structure and tone of the Title V description in the final preamble, then the public does not in fact have the public comment, challenge and petition opportunities afforded 103 Id. (" However, the parameters that rendered an a affected source part of the low risk subcategory will be incorporated into a title V permit and subject to the public review process through title V.") 76 under Title V for ordinary state applicability determinations. The agency's Rube Goldberg creation simply does not hold up to scrutiny.

The final preamble implicitly recognizes this, and offers a series of absurd,

unavailing excuses for the assaults on public participation opportunities carried out by the exemption's implementation scheme. The preamble says:

Furthermore, the PCWP proposal provided the public with the opportunity to comment on the consideration of risk in the final PCWP rule. Regarding the assurance of adequate public participation in the process of reviewing the risk analyses, the risk based compliance options are part of a rule that was subject to public comment. The supporting information to the final rule details the assessment we conducted to determine the feasibility of delisting a low risk subcategory and the look up tables we developed to be used by affected sources in their demonstrations, thereby providing a public demonstration of the method employed to ensure protection of the public health and environment in decisions associated with the final rule.

Id. at 46003/ 3. Each of these excuses is more preposterous than the last.

As discussed above, the PCWP proposal was thoroughly inadequate in providing the public " with the opportunity to comment on the consideration of risk in the final PCWP rule," a fact emphasized by EPA attorneys and professional staff in briefings for management. See supra at ___. Incredibly, the agency cites this same public comment opportunity on the rulemaking as the " assurance of adequate public participation in the process of reviewing the risk analyses"   when the agency's risk assessment methodology was not even made public until the final rule, and the individualized risk analyses still have not occurred and will not for several years! Finally, the kicker   the text quoted above discusses the assessment and look up tables appearing in the final rule and proclaims that this provides a " public demonstration of the method employed to ensure protection of the public health and environment in decisions associated with the final rule." Id. The preamble evinces no apparent awareness of irony in this assertion 77 and the fact that it is made in the context of a discussion about opportunities for public comment on the risk determinations. Allowing the public after the fact to see the already accomplished " demonstration" made by EPA hardly amounts to an opportunity for the public to comment on methods purportedly employed to ensure protection of public health and the environment.

The final rule's implementation approach and the justifications offered to support it are unlawful, arbitrary and capricious, and otherwise an abuse of the agency's discretion.

Finally, we note that governing EPA statutory and regulatory interpretations prohibit the Title V implementation approach employed in the final rule. In a May 20,

1999 letter from John Seitz, EPA OAQPS, to Robert Hodanbosi & Charles Lagges,

STAPPA/ ALAPCO, EPA explains why Title V permits may not be the exclusive legal mechanism for establishing and enforcing " applicable requirements":

As noted in the previous section, title V permits must assure compliance with terms and conditions in SIP approved permits. In enacting title V, Congress did not amend title I of the Act and did not intend the title V permitting program to replace the title I permitting programs. SIP approved permits must remain in effect because they are the legal mechanism through which underlying NSR requirements ( from the Act, federal regulations and federally approved SIP regulations) become applicable, and remain applicable, to individual sources. NSR programs provide the relevant permitting entity with the authority to impose source specific NSR terms and conditions in legally enforceable permits, and provide States, EPA and citizens with the authority to enforce these permits. Because State title V programs do not provide the authority for the establishment and maintenance of SIP approved permit requirements, the title V permit cannot " assure compliance" with those requirements unless the underlying implementation and enforcement mechanism for the NSR requirements the SIPapproved permit remains valid.

The supersession of SIP approved permits poses additional problems that EPA believes are inconsistent with the structure and purposes of title V and title I of the Act. First, while SIP approved permits impose continual operational requirements and restrictions upon a source's air pollution activities and, accordingly, may not expire so long as the source operates, title V permits 78 could expire or become unnecessary. If the title V permit supersedes the source's SIP approved permit and then subsequently expires, neither the superseded SIPapproved permit nor the expired title V permit would provide the legal authority to enforce the site specific operational requirements and restrictions imposed upon the source pursuant to preconstruction review. Even if title V permits expire, of course, sources are still required to comply with applicable requirements that remain independently enforceable outside of title V permits, as all applicable requirements must.

Moreover, the continuing existence of SIP approved permits independent of title V preserves the ability of permitting authorities and EPA to reopen title V permits that failed to include all SIP approved permit terms, or to make such corrections upon permit renewal. Finally, title V regulations allow a permitting authority to include in the title V permit a " permit shield" stating that " compliance with the conditions of the [ title V] permit shall be deemed compliance with any applicable requirements as of the date of permit issuance" [ 40 CFR § § 70.6( f) & 71.6( f)]. The fact that compliance with the title V permit may be " deemed compliance" with underlying applicable requirements, including applicable requirements contained in SIP approved permits, indicates that those underlying requirements must remain in force and may not be superseded. If those requirements could be superseded by the title V permit, there would be no need for a mechanism in the title V permit clarifying the source's obligations and compliance status.

May 20, 1999 Letter from John Seitz, EPA OAQPS, to Robert Hodanbosi & Charles Lagges, STAPPA/ ALAPCO, Enclosure A, at 4 5.

The reasons offered in this letter for not allowing SIP approved permit terms to exist exclusively in Title V permits apply equally to the detailed and source specific risk determinations, parameters and conditions that would exist exclusively in individual Title V permits. For example, if a PCWP's Title V permit expired, for whatever reason, the legal parameters and conditions of the risk exemption would no longer exist as a legal matter. The other reasoning behind the agency's prohibition on supersession in Title V permitting applies equally to prohibiting the agency from legally establishing the PCWP rule's risk based exemption conditions exclusively through Title permits.


[Federal Register: October 8, 2008 (Volume 73, Number 196)]
[Notices]
[Page 59001-59002]
[DOCID:fr08oc08-106]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58707; File No. SR-FINRA-2008-043]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Granting Approval of Proposed Rule Change To
Establish a Membership Waive-in Process and Fee Waiver for Certain NYSE
Alternext U.S. LLC Member Organizations

October 1, 2008.

I. Introduction

    On July 30, 2008, the Financial Industry Regulatory Authority, Inc.
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc.
(``NASD'')) filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to establish a membership waive-in process and fee
waiver for certain NYSE Alternext members. The proposed rule change was
published for comment in the Federal Register on August 11, 2008.\3\
The Commission received no comments on the proposal. This order
approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(l).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58291 (August 1,
2008), 73 FR 46661 (August 11, 2008) (SR-FINRA-2008-043).
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II. Description of the Proposal

    As discussed in a separate proposed rule change,\4\ on January 17,
2008, the Amex Membership Corporation and NYSE Euronext entered into an
Agreement and Plan of Merger whereby, through a series of mergers
(``Mergers''), NYSE Euronext will acquire the American Stock Exchange
LLC (``Amex''). As a result of these Mergers, Amex will become a
wholly-owned subsidiary of NYSE Group and renamed NYSE Alternext U.S.
LLC (``NYSE Alternext'').
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 58284 (August 1,
2008), 73 FR 46086 (August 7, 2008) (SR-Amex-2008-62).
---------------------------------------------------------------------------

    As described in a separate filing,\5\ the New York Stock Exchange
LLC (``NYSE'') intends to (1) require mandatory FINRA and NYSE
membership for NYSE Alternext member organizations (other than those
that exclusively trade options); (2) adopt a series of member conduct
rules for NYSE Alternext member organizations that are substantively
identical to the Incorporated NYSE Rules that are the subject of an
agreement among FINRA, NYSE, and NYSE Regulation, Inc., pursuant to
Rule 17d-2 under the Act (``17d-2 Agreement''); and (3) amend the 17d-2
Agreement to include NYSE Alternext as a party to that agreement so
that FINRA will assume regulatory responsibility consistent with the
terms of that agreement for the NYSE Alternext Equities rules that are
substantively identical to the Incorporated NYSE Rules.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 58290 (August 1,
2008), 73 FR 46676 (August 11, 2008) (SR-NYSE-2008-70).
---------------------------------------------------------------------------

    In furtherance of these efforts, FINRA proposes a membership waive-
in process for certain NYSE Alternext member organizations, similar to
the process for NYSE member organizations.\6\ Proposed IM-1013-2 would
apply to any NYSE Alternext member organization that holds a valid 86
Trinity Permit \7\ as of the date such firm transfers its equities
operations to the NYSE Alternext trading systems at 11 Wall Street \8\
and that is not currently a FINRA member.
---------------------------------------------------------------------------

    \6\ FINRA previously established a waive-in process to expedite
the approval of membership applications of NYSE-only member
organizations that were required to become FINRA members. That
process is set forth in IM-1013-1 (Membership Waive-In Process for
Certain New York Stock Exchange Member Organizations). See
Securities Exchange Act Release No. 56653 (October 12, 2007), 72 FR
59127 (October 18, 2007) (SR-NASD-2007-056).
    \7\ An ``86 Trinity Permit'' will authorize any owner, lessee,
or nominee of an Amex Regular Member or Options Principal Member
(``OPM''); Amex limited trading permit holder; or Amex associate
members who was authorized to trade on the Amex immediately before
the Mergers to continue to trade at NYSE Alternext's systems and
facilities at 86 Trinity Place, New York, New York (``86 Trinity
Trading Systems'').
    \8\ In connection with the Mergers, NYSE Euronext intends to
relocate all equities trading previously conducted on the 86 Trinity
Trading Systems to 11 Wall Street, New York, New York. See
Securities Exchange Act Release No. 58265 (July 30, 2008), 73 FR
46075 (August 7, 2008) (SR-Amex-2008-63).
---------------------------------------------------------------------------

    FINRA recognizes that the Amex and NYSE have comprehensive
membership applications and review processes based on similar
principles and standards to that of FINRA. As such, those NYSE
Alternext member organizations that will become FINRA members already
have been subjected to an extensive screening process. The waive-in
process would make each such firm eligible to automatically become a
FINRA member and to automatically register all associated persons whose
registrations are approved with NYSE Alternext in registration
categories recognized by FINRA upon submission to FINRA's Member
Regulation Department (``Department'') of a signed waive-in membership
application (``Waive-In Application'').\9\
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    \9\ NYSE is proposing a 60-day grace period for such NYSE
Alternext member organizations to apply for and be approved for
FINRA membership. See Securities Exchange Act Release No. 58290,
supra note 5. In coordination with this proposal and with respect to
the requirement in Incorporated NYSE Rule 2, FINRA would permit a
60-day grace period within which these member organizations must
apply for and be approved for FINRA membership. Such grace period
would run from the date that the NYSE Alternext member organization
transfers its equities operations to NYSE Alternext Trading Systems.
---------------------------------------------------------------------------

    Associated persons of the NYSE Alternext member organizations will
be automatically registered with FINRA only for those registration
categories that are recognized jointly by FINRA and NYSE Alternext--
e.g. , a General Securities Representative (Series 7); provided,
however, that the firm must, upon approval of FINRA membership, submit
an amended Form U4 for each such associated person, denoting the
corresponding FINRA registration category(ies) for such person. A list
of those registration categories is included as part of the Waive-In
Application. For those associated persons registered in a category
recognized only by NYSE Alternext, FINRA will acknowledge such
registrations to permit such persons to continue to function in the
capacity for which they are registered.
    The Waive-In Application would require the following information:
    (1) General company information, including Central Registration
Depository (``CRD'') Number and contact person;
    (2) An attestation that all information on the applicant's CRD
form, as of the date of submission of the Waive-In Application, is
accurate and complete and fully reflects all aspects of the applicant's
current business, including, but not limited to, ownership structure,
management, product lines, and disclosures;
    (3) The identity of the firm's Executive Representative;
    (4) Completed and signed Entitlement Forms (unless previously
submitted);
    (5) A signed FINRA Membership Agreement; and
    (6) Representations that the applicant's Uniform Application for
Broker-Dealer Registration will be amended as needed to keep current
and accurate; that all individual and entity registrations with FINRA
will be kept current; and that all information and statements contained
in the Waive-In Application are current, true, and complete.
    The Waive-In Application must be reviewed within three business
days of receipt and, if complete, the Department

would issue a letter notifying the applicant that it has been approved
for membership. The Membership Agreement would become effective on the
date of such notification letter.
    Any NYSE Alternext member organization admitted pursuant to
proposed IM-1013-2, being a member organization of both NYSE and NYSE
Alternext, would be subject to the consolidated FINRA rules,\10\ the
NYSE rules incorporated by FINRA,\11\ the FINRA By-Laws and Schedules
to By-Laws, including Schedule A (Assessments and Fees), and NASD Rules
8000 (Investigations and Sanctions) and 9000 (Code of Procedure)
series, provided that its NYSE or NYSE Alternext securities business is
limited to floor-based activities in either NYSE-traded or NYSE
Alternext-traded securities, or routing away to other markets orders
that are ancillary to its core NYSE or NYSE Alternext floor business
under NYSE Rule 70.40 or NYSE Alternext Equities Rule 70.40
(``permitted floor activities'').\12\
---------------------------------------------------------------------------

    \10\ FINRA is proposing that firms admitted to FINRA membership
under IM-1013-1 be subject to the consolidated FINRA rules. See
Securities Exchange Act Release No. 58206 (July 22, 2008), 73 FR
43808 (July 28, 2008).
    \11\ FINRA proposes to grant NYSE Alternext waive-in member
organizations a six-month period to comply with Incorporated NYSE
Rules 311-313.
    \12\ For purposes of this order, activities that are ancillary
to a Floor broker's core business include (i) routing orders in
NYSE-traded or NYSE Alternext-traded securities to an away market
for any reason relating to their ongoing Floor activity, including
regulatory compliance or meeting best-execution obligations; or (ii)
provided that the majority of transactions effected by the firm are
effected on NYSE, sending to other markets orders in NYSE-traded,
NYSE Alternext-traded, or non-NYSE-traded securities and/or futures
if such orders relate to hedging positions in NYSE-traded or NYSE
Alternext-traded securities, or are part of arbitrage or program
trade strategies that include NYSE-traded or NYSE Alternext-traded
securities.
---------------------------------------------------------------------------

    If an NYSE Alternext member organization admitted pursuant to
proposed IM-1013-2 seeks to expand its business operations to include
any activities other than the permitted floor activities or makes
changes to its securities business that would otherwise require FINRA
membership, such firm must apply for and receive approval to engage in
such business activity pursuant to NASD Rule 1017. Upon approval of
such business expansion, the firm would become subject to all NASD
Rules, in addition to the consolidated FINRA rules and those NYSE rules
incorporated by FINRA.
    Associated persons of an NYSE Alternext member organization
admitted to FINRA pursuant to proposed IM-1013-2 would be subject to
the same set of rules as the firm with which they are associated.
Inasmuch as these associated persons would not be subject to NASD Rules
1021 or 1031, they would not be required to register in a registration
category recognized by FINRA. To the extent that such persons continue
to be associated solely with a firm whose business complies with the
limitations imposed on those firms admitted to FINRA pursuant to
proposed IM-1013-2, FINRA is not imposing any registration requirements
beyond those required by the NYSE or NYSE Alternext, provided their
business is confined in scope as contemplated in proposed IM-1013-
2.\13\
---------------------------------------------------------------------------

    \13\ The licensing and other requirements applicable to the NYSE
Alternext member organizations and their associated persons are
subject to change as part of the process of establishing the
Consolidated FINRA Rulebook.
---------------------------------------------------------------------------

    Finally, FINRA proposes to amend Interpretive Material Section
4(b)(1) and 4(e) of Schedule A of the FINRA By-Laws to exempt NYSE
Alternext applicants from the assessment of a FINRA membership
application fee and from fees for each initial Form U4 filed by the
applicant with FINRA for the registration of a representative or
principal associated with the firm at the time it submits its
application for FINRA membership pursuant to proposed IM-1013-2.

III. Discussion and Commission Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
association.\14\ In particular, the Commission finds that the proposed
rule change is consistent with Section 15A(b)(2) of the Act,\15\ which
requires a national securities association to be so organized and have
the capacity to carry out the purposes of the Act and to enforce
compliance by its members and persons associated with its members with
the provisions of the Act. Further, the Commission finds that the
proposed rule change is consistent with Section 15A(b)(6) of the
Act,\16\ in that it is designed, among other things, to prevent
fraudulent and manipulative acts and practices; to promote just and
equitable principles of trade; to remove impediments to and perfect the
mechanism of a free and open market and a national market system; and,
in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \14\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \15\ 15 U.S.C. 78o-3(b)(2).
    \16\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    The Commission has previously approved a similar waive-in process
for NYSE members required to become FINRA members.\17\ This proposal
affords eligible NYSE Alternext members and member organizations with a
similar expedited process to become FINRA members, provided that they
engage in permitted floor activities only. The proposal appears
reasonably designed to facilitate the consolidation of member firm
regulatory functions of FINRA, NYSE, and NYSE Alternext, thereby
encouraging more efficient regulation of members and their associated
persons.
---------------------------------------------------------------------------

    \17\ See Securities Exchange Act Release No. 56653, supra note
6.
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\18\ that the proposed rule change (SR-FINRA-2008-043) be, and
hereby is, approved.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-23839 Filed 10-7-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Rules and Regulations]
[Page 37604]
[FR Doc No: 2012-15265]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0266]

Safety Zone; Fourth of July Fireworks, Berkeley Marina, Berkeley,
CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of enforcement of regulation.

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SUMMARY: The Coast Guard will enforce the safety zone for the Berkeley
Marina Fourth of July Fireworks display in the Captain of the Port, San
Francisco area of responsibility during the dates and times noted
below. This action is necessary to protect life and property of the
maritime public from the hazards associated with the fireworks display.
During the enforcement period, unauthorized persons or vessels are
prohibited from entering into, transiting through, or anchoring in the
safety zone, unless authorized by the Patrol Commander (PATCOM).

DATES: The regulations in 33 CFR 165.1191 will be enforced from 9:30
p.m. to 10:15 p.m. on July 4, 2012.

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice,
call or email Ensign William Hawn, U.S. Coast Guard Sector San
Francisco; telephone<PHONE_NUMBER> or email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Coast Guard will enforce a 1,000 foot
safety zone around the Berkeley Pier in position 37[deg]51'40'' N,
122[deg]19'19'' W (NAD 83) from 9:30 p.m. until 10:15 p.m. on July 4,
2012. Upon the commencement of the 30 minute fireworks display,
scheduled to take place from 9:30 p.m. to 10 p.m. on July 4, 2012, the
safety zone will encompass the navigable waters around and under the
Berkeley Pier within a radius 1,000 feet in position 37[deg]51'40'' N,
122[deg]19'19'' W (NAD83) for the Berkeley Marina Fourth of July
Fireworks display in 33 CFR 165.1191. This safety zone will be in
effect from 9:30 p.m. to 10:15 p.m. on July 4, 2012.
    Under the provisions of 33 CFR 165.1191, unauthorized persons or
vessels are prohibited from entering into, transiting through, or
anchoring in the safety zone during all applicable effective dates and
times, unless authorized to do so by the PATCOM. Additionally, each
person who receives notice of a lawful order or direction issued by an
official patrol vessel shall obey the order or direction. The PATCOM is
empowered to forbid entry into and control the regulated area. The
PATCOM shall be designated by the Commander, Coast Guard Sector San
Francisco. The PATCOM may, upon request, allow the transit of
commercial vessels through regulated areas when it is safe to do so.
    This notice is issued under authority of 33 CFR 165.1191 and 5
U.S.C. 552(a). In addition to this notice in the Federal Register, the
Coast Guard will provide the maritime community with extensive advance
notification of the safety zone and its enforcement period via the
Local Notice to Mariners.
    If the Captain of the Port determines that the regulated area need
not be enforced for the full duration stated in this notice, a
Broadcast Notice to Mariners may be used to grant general permission to
enter the regulated area.

    Dated: June 6, 2012.
Cynthia L. Stowe,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2012-15265 Filed 6-21-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 86, Number 134 (Friday, July 16, 2021)]
[Rules and Regulations]
[Pages 37681-37683]
[FR Doc No: 2021-15127]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2018-0114; FRL-10025-34-OAR]

Removal of the Federal Reformulated Gasoline Program From the
Southern Maine Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final action on petition.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is taking final
action in announcing its approval of the petition by Maine to opt-out
of the Federal reformulated gasoline (RFG) program and remove the
requirement to sell Federal RFG for York, Cumberland, Androscoggin,
Sagadahoc, Kennebec, Knox and Lincoln counties (the Southern Maine
Area), which are part of the Portland and Midcoast Ozone Maintenance
Areas for the 1997 ozone national ambient air quality standard (NAAQS).
EPA has determined that this removal of the Federal RFG program for the
Southern Maine Area is consistent with the applicable provisions of the
Clean Air Act (CAA) and EPA's regulations.

DATES: The effective date for removal of the Southern Maine Area from
the Federal RFG program is September 30, 2021.

FOR FURTHER INFORMATION CONTACT: Mark Coryell, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood,
Ann Arbor, MI 48105; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>or Rudy Kapichak, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 2000 Traverwood, Ann
Arbor, MI 48105; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this final action are fuel
producers and distributors who do business in the Southern Maine Area.

------------------------------------------------------------------------
                                                               NAICS \1\
          Examples of potentially regulated entities             codes
------------------------------------------------------------------------
Petroleum refineries.........................................     324110
                                                                  424710
Gasoline Marketers and Distributors..........................     424720
Gasoline Retail Stations.....................................     447110
Gasoline Transporters........................................     484220
                                                                  484230
------------------------------------------------------------------------

    The above table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. The table lists the types of entities of which EPA is
aware that potentially could be affected

by this final action. Other types of entities not listed on the table
could also be affected by this final action. To determine whether your
organization could be affected by this final action, you should
carefully examine the regulations in 40 CFR part 1090. If you have
questions regarding the applicability of this action to a particular
entity, see the FOR FURTHER INFORMATION CONTACT section of this
preamble.
---------------------------------------------------------------------------

    \1\ North American Industry Classification System.
---------------------------------------------------------------------------

B. How can I get copies of this document and other related information?

    EPA has established a docket for this action under Docket ID No.
EPA-HQ-OAR-2021-0243. All documents in the docket are listed on the
www.regulations.gov website. Although listed in the index, some
information may not be 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
electronically through www.regulations.gov.

II. Background

A. What is the Federal RFG program?

    The 1990 CAA Amendments (CAA) established specific requirements for
the Federal RFG program to reduce ozone levels in certain areas in the
country experiencing ground-level ozone or smog problems by reducing
vehicle emissions of compounds that form ozone, specifically volatile
organic compounds (VOCs). CAA section 211(k)(5) directed EPA to issue
regulations that specify how gasoline can be ``reformulated'' to result
in significant reductions in vehicle emissions of ozone-forming and
toxic air pollutants relative to the 1990 baseline fuel, and to require
the use of such reformulated gasoline in certain ``covered areas.'' The
CAA defined certain nonattainment areas as ``covered areas'' that are
required to use RFG and provided other areas with an ability to ``opt-
in'' to the RFG program. CAA section 211(k)(6) provides an opportunity
for an area classified as a Marginal, Moderate, Serious, or Severe
ozone nonattainment area, or which is in the ozone transport region
established by CAA section 184(a), to ``opt-in'' to the RFG program
upon application by the governor of the state (or authorized
representative) and subsequent action by EPA.
    Similar to other RFG covered areas, RFG opt-in areas are subject to
the prohibition in section 211(k)(5) on the sale or dispensing by any
person of conventional (non-RFG) gasoline to ultimate consumers in the
covered area. The prohibition also includes the sale or dispensing by
any refiner, blender, importer, or marketer of conventional gasoline
for resale in any covered areas, without segregating the conventional
gasoline from RFG and clearly marking conventional gasoline as not for
sale to ultimate consumers in a covered area. EPA first published
regulations for the RFG program on February 16, 1994 (59 FR 7716).
    On July 23, 2013, the Governor of Maine formally requested,
pursuant to CAA section 211(k)(6)(B), that the U.S. Environmental
Protection Agency (EPA) extend the requirement for the sale of RFG to
the Southern Maine Area beginning on May 1, 2014. The Maine legislature
subsequently enacted an emergency law, Public Law 2013 c.452, effective
March 6, 2014, to postpone the requirement for the sale of RFG in the
Southern Maine Area until June 1, 2015. Pursuant to that legislation,
the Commissioner of the Maine DEP submitted a request to the EPA on
March 10, 2014, modifying Maine's request for the implementation date
for the sale of RFG in the Southern Maine Area to coincide with the new
June 1, 2015 effective date. A current listing of the RFG covered areas
and a summary of RFG requirements can be found on EPA's website at:
https://www.epa.gov/gasoline-standards/reformulated-gasoline.

B. RFG Opt-Out Procedures

    The RFG opt-out regulations (40 CFR1090.290--Changes to RFG covered
areas and procedures for opting out of RFG) provide the process and
criteria for a reasonable transition out of the RFG program if a state
decides to opt-out.\2\ These RFG opt-out regulations provide that the
governor of the state must submit a petition to the Administrator
requesting to opt-out of the RFG program. The petition must include
specific information on how, if at all, the state has relied on RFG in
a proposed or approved state implementation plan (SIP) or plan revision
and, if RFG is relied upon, how the SIP will be revised to reflect the
state's opt-out from RFG. The opt-out regulations also provide that EPA
will notify the state in writing of the Agency's action on the petition
and the date the opt-out becomes effective (i.e., the date RFG is no
longer required in the affected opt-in area) when the petition is
approved. The opt-out regulations also provide that EPA will publish a
Federal Register notice announcing the approval of any opt-out petition
and the effective date of such opt-out. If a SIP revision is required,
the effective date of EPA's approval of the opt-out can be no less than
90 days from the effective date of EPA's approval of the revision to
the SIP that removes RFG as a control measure (40 CFR 1090.290(d)).
---------------------------------------------------------------------------

    \2\ Pursuant to CAA sections 211(c) and (k) and 301(a), EPA
promulgated regulations at 40 CFR 80.72 to provide criteria and
general procedures for states to opt-out of the RFG program where
the state had previously voluntarily opted into the program. The
regulations were initially adopted on July 8, 1996 (61 FR 35673)
(the RFG ``Opt-out Rule''); were revised on October 20, 1997 (62 FR
54552) and were subsequently revised on December 4, 2020 (85 FR
78412).
---------------------------------------------------------------------------

    EPA determined in the RFG ``Opt-out Rule'' that it would not be
necessary to conduct a separate rulemaking for each future opt-out
request (61 FR 35673 at 35675 (July 8, 1996)). EPA established a
petition process to address, on a case-by-case basis, future individual
state requests to opt-out of the RFG program. The RFG opt-out
regulations establish clear and objective criteria for EPA to apply.
These regulatory criteria address when a state's petition is complete
and the appropriate transition time for opting out. As EPA stated in
the preamble to the RFG Opt-out Rule, this application of regulatory
criteria on a case-by-case basis to individual opt-out requests does
not require notice-and-comment rulemaking, either under CAA section
307(d) or the Administrative Procedure Act. Thus, in this action, EPA
is applying the criteria and following the procedures specified in the
RFG opt-out regulations to approve Maine's petition.

C. Opt-Out of RFG for the Southern Maine Area

    On August 20, 2020, Maine submitted a petition to the EPA
Administrator requesting to opt-out from the RFG program for York,
Cumberland, Androscoggin, Sagadahoc, Kennebec, Knox and Lincoln
counties (the Southern Maine Area), which are part of the Portland and
Midcoast Ozone Maintenance Areas for the 1997 ozone NAAQS. EPA finds
that Maine has provided the required information in the petition, per
40 CFR 1090.290(d). In order to fulfill the requirements of the RFG
opt-out regulations, on August 20, 2020, Maine submitted a revision to
its maintenance plan for the Southern Maine Area to remove the
emissions reductions associated with the use of RFG in this area and to
demonstrate that the RFG opt-out would not interfere with the area's
ability to attain or maintain the 1997, 2008 and 2015 ozone NAAQS and
any other NAAQS as

required by CAA section 110(l) (40 CFR1090.290(d)). EPA published a
proposed approval of the SIP revision on March 25, 2021 (86 FR 15844)
and a final approval of the SIP revision on June 2, 2021 (86 FR 29520),
with an effective date of July 2, 2021. The RFG opt-out regulations
provide that the opt-out effective date shall be no less than 90 days
from the EPA SIP approval effective date (40 CFR 1090(d)(2)(ii)). EPA
is unaware of any reason that the effective date should be postponed,
and therefore, is establishing an opt-out effective date of September
30, 2021 for the Southern Maine Area.
    As provided by the RFG Opt-out Rule and the opt-out regulations in
40 CFR 1090.290(e), EPA will publish a final rule to remove the seven
counties in the Southern Maine Area from the list of RFG covered areas
in 40 CFR 1090.285(d) after the effective date of the opt-out. EPA
believes that completing this ministerial exercise to revise the list
of covered areas in the Code of Federal Regulations after the effective
date of the opt-out allows the opt-out to become effective within the
timeframe described in 40 CFR 1090.290(d), and allows EPA to keep the
lists of RFG covered areas in 40 CFR 1090.285 up to date.

III. Action

    EPA is approving Maine's petition because it contained the
information required by 40 CFR 1090(d) in its petition to EPA to opt-
out of the RFG program and revised the approved maintenance plan for
the 1997 ozone NAAQS for the Southern Maine Area to remove the
emissions reductions associated with RFG. EPA is also determining the
opt-out effective date by applying the criteria in 40 CFR 1090.290(d).
As discussed in Section II.A. above, the RFG opt-out regulations
require that if a state included RFG as a control measure in an
approved SIP, the state must revise the SIP, reflecting the removal of
RFG as a control measure before an opt-out can be effective, and the
opt-out cannot be effective less than 90 days after the effective date
of the approval of the SIP revision. EPA published a final approval of
Maine's maintenance plan revision and noninterference demonstration on
June 2, 2021 (86 FR 29520), with an effective date of July 2, 2021.
    In summary, EPA is notifying the public that it has applied its
regulatory criteria to approve the petition by Maine to opt-out of the
RFG program for the Southern Maine Area of the Portland and Midcoast
ozone maintenance area for the 1997 ozone NAAQS and is thereby removing
the prohibition on the sale of conventional gasoline in that area as of
September 30, 2021 (40 CFR 1090.290(d)). This opt-out effective date
applies to retailers, wholesale purchasers, consumers, refiners,
importers, and distributors.

Michael S. Regan,
Administrator.
[FR Doc. 2021-15127 Filed 7-15-21; 8:45 am]
BILLING CODE 6560-50-P