1
See,
for
example,
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994);
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
);
Tier
2
Comment
#
4
(
DOE)

Interrelationship
of
the
8­
Hour
Ozone
Implementation
Program
with
Other
EPA
Rules
 
Alignment
of
Deadlines
and
Requirements.
DOE
commented
that
EPA
should
review
the
timetables
and
requirements
of
other
air
quality
and
fuels'
rulemakings
already
promulgated,
noticed,
or
in
preparation,
especially
the
Interstate
Air
Quality
Transport
rule,
to
ensure
that
there
are
no
conflicts
between
this
rulemaking
and
the
other
rules.
We
are
especially
concerned
about
the
timing
for
the
introduction
of
the
fuel
quality
rules
and
the
recently
noticed
IAQT
rule.
It
seems
likely
that
one
widely
used
local
measure
will
be
some
form
of
reformulated
gasoline.
We
are
uncertain
what
impact
this
increased
demand
for
these
highly
refined
fuels
will
be
and
ask
that
EPA
initiate
a
study
of
the
impact
of
this
rulemaking
on
the
availability
and
cost
of
these
expanded­
use
fuels.

Response:

The
EPA
is
aware
that,
as
a
result
of
designations
under
the
8­
hour
ozone
standard,
more
areas
may
consider
fuels­
related
control
measures,
placing
a
higher
demand
on
fuel
suppliers.
While
today's
action
and
the
proposed
IAQT
rule
may
give
states
an
incentive
to
consider
local
fuel
control
measures,
certain
local
control
measures
are
preempted
by
the
Federal
fuels
programs
except
under
certain
circumstances
in
which
we
may
grant
a
waiver.
State
opt­
in
to
the
RFG
program
is
not
preempted
because
EPA
establishes
and
enforces
the
RFG
requirements
at
the
federal
level
and
the
Clean
Air
Act
provides
explicit
authority
for
states
to
opt­
in
to
the
federal
requirements
under
section
211(
k).
We
will
discuss
the
Federal
RFG
program
separately.

The
proposed
IAQT
rule
of
December
17,
2003
would
indirectly
give
states
an
incentive
to
consider
local
fuel
control
measures.
The
IAQT
rule
would
reduce
and
permanently
cap
emissions
of
sulfur
dioxide
(
SO2),
and
nitrogen
oxides
(
NOx)
from
electric
utilities
in
29
states
and
the
District
of
Columbia,
whose
power
plant
emissions
are
significantly
contributing
to
fine
particle
and
ozone
pollution
in
other
downwind
states
in
the
Eastern
U.
S.
Under
that
proposal,
states
could
meet
the
proposed
emissions
reductions
using
one
of
two
options
for
compliance:
1)
requiring
utilities
to
participate
in
an
interstate
cap
and
trade
system
that
caps
emissions,
or
2)
meeting
an
individual
state
emissions
budget
through
measures
of
the
state's
choosing.
We
recognize
that
this
second
option
could
give
states
an
incentive
to
consider
a
local
fuel
control
measure
­
either
federal
RFG
or
a
state
fuels
program
under
section
211(
c)
of
the
Clean
Air
Act
­
as
an
alternative
to
reducing
SO2
and
NOx
emissions
from
electric
utilities.

However,
section
211(
c)(
4)(
A)
of
the
Clean
Air
Act
prohibits
states
(
and
political
subdivisions
of
states)
from
prescribing
or
attempting
to
enforce,
for
purposes
of
motor
vehicle
emission
control,
"
any
control
or
prohibition
respecting
any
characteristic
or
component
of
a
fuel
or
fuel
additive
in
a
motor
vehicle
or
motor
vehicle
engine,"
if
EPA
has
prescribed,
"
a
control
or
prohibition
applicable
to
such
characteristic
or
component
of
the
fuel
or
fuel
additive1"
under
section
Motor
Vehicle
Emissions
Standards
and
Gasoline
Sulfur
Control
Requirements,
65
FR
6698,
6765
(
February
10,
2000).

2
Guidance
on
Use
of
Opt­
Into
RFG
and
Low
RVP
Requirements
in
Ozone
SIPs,
August
1997,
located
on
EPA
internet
site
at
http://
www.
epa.
gov/
otaq/
regs/
fuels/
rvpguide.
pdf
211(
c)(
1).
This
prohibition
applies
to
all
states
except
California.
Section
211(
c)(
4)(
B).
For
states
other
than
California,
the
Clean
Air
Act
provides
two
mechanisms
for
avoiding
preemption.
First,
if
the
state
prohibitions
or
controls
are
identical
to
the
prohibition
or
control
adopted
by
EPA.
Section
211(
c)(
4)(
A)(
ii).
Second,
states
may
seek
EPA
approval
of
SIP
revisions
containing
fuel
control
measures,
as
described
in
section
211(
c)(
4)(
C).
EPA
may
approve
such
SIP
revisions,
and
thereby
"
waive"
preemption,
only
if
it
finds
the
state
control
or
prohibition
"
is
necessary
to
achieve
the
national
primary
or
secondary
ambient
air
quality
standard
which
the
plan
implements."
Additionally,
Congress
has
directed
EPA
to
consider
if
the
state
that
is
adopting
a
fuel
control
measure
has
other
reasonable
and
practicable
measures
available
to
achieve
the
NAAQS.
Where
a
state
control
or
prohibition
is
preempted,
a
state
may
adopt
nonidentical
fuel
control
measures
only
upon
a
showing
of
necessity
under
section
211(
c)(
4)(
C).

With
regard
to
the
concerns
about
the
proliferation
of
fuels
and
possibility
of
fuel
supply
disruptions,
EPA
has
and
continues
to
recognize
these
concerns.
"
The
national
scope
of
gasoline
production
and
distribution
suggests
that
federal
rules
should
preempt
State
action
to
avoid
an
inefficient
patchwork
of
potentially
conflicting
regulations."
Regulation
of
Fuels
and
Fuel
Additives:
Standards
for
Reformulated
and
Conventional
Gasoline,
59
FR
7714,
7809
(
February
16,
1994).
Further,
in
the
Mobile
Sources
Air
Toxics
Rule,

EPA
recognize[
d]
the
concerns
expressed
by
the
petroleum
industry
that
a
patchwork
of
different
state
fuel
standards,
sometimes
referred
to
as
"
boutique"
fuels,
may
increase
the
likelihood
of
disruptions
in
the
fuel
supply.
In
most
situations,
EPA
believes
that
a
uniform
national
program
is
the
best
way
to
protect
public
health
and
minimize
disruption
to
the
efficiency
of
the
country's
fuel
distribution
network.
EPA's
general
expectation
is
that
States
will
consider
these
issues
in
evaluating
whether
adoption
of
a
state
fuel
program
would
be
warranted.
Control
of
Emissions
of
Hazardous
Air
Pollutants
From
Mobile
Source,
66
FR
17230,
17248
(
March
29,
2001
).
See
also
Approval
of
Low
Emission
Diesel
Fuel
for
Texas,
66
FR
57196,
57205
(
November
14,
2001).

In
determining
the
need
of
the
local
area
for
the
fuel
measure,
including
the
availability
of
other
reasonable
and
practicable
measures
in
that
area
to
achieve
the
NAAQS,
we
attempt
to
balance
a
number
of
factors,
some
of
which
are
localized.
We
have
issued
guidance
explaining
what
states
need
to
consider
in
determining
whether
other
ozone
control
measures
are
unreasonable
or
impracticable2.
For
example,
the
guidance
explains
that
reasons
why
a
measure
might
be
unreasonable
or
impracticable
for
a
particular
area
include
"
length
of
time
to
implement
the
measure;
length
of
time
to
achieve
ozone
reduction
benefits;
degree
of
disruption
entailed
by
implementation;
other
implementation
concerns,
such
as
supply
issues;
costs
to
industry,
consumers
and/
or
the
state;
cost­
effectiveness;
or
reliance
on
commercially
unavailable
technology."
Guidance
at
p.
6.
Thus,
EPA
will
consider
cost
impacts
for
non­
fuel
measures
in
making
a
"
necessity"
finding
under
section
211(
c)(
4)(
C).
However,
section
110(
a)(
3)(
A)
places
an
additional
obligation
on
EPA
to
approve
SIP
revisions
that
meet
the
requirements
of
section
110(
a)(
2).
See,
Train
v.
Natural
Resources
Defense
Council,
Inc.,
421
U.
S.
60,
98
(
1975).
Therefore,
EPA
may
not
consider
the
economic
impact
of
a
necessary
SIP
revision
under
section
110(
a)(
2),
rather
under
that
provision,
it
is
for
the
state
to
determine
what
economic
costs
are
appropriate
to
achieve
the
NAAQS.
See,
Union
Electric
Co.,
v.
EPA,
427
U.
S.
246,
256­
258
(
1976).
Thus,
once
EPA
makes
the
finding
that
state
fuel
controls
are
necessary
to
achieve
the
standard,
EPA
may
not
reject
a
state's
SIP
proposal
simply
for
economic
reasons.
For
more
on
EPA's
economic
considerations
in
SIP
approvals
see,
54
FR
25572,
25576
(
Approval
of
the
state
of
New
Jersey
Ozone
SIP
revision).

Because
of
these
very
important
considerations,
EPA
considers
state
requests
on
a
case­
by­
case
basis,
rather
than
in
the
context
of
a
national
rule,
such
as
today's
action.
EPA
actions
on
state
requests
for
local
fuel
control
measures
are
proposed
in
the
Federal
Register
for
public
notice
and
comment.
Thus,
the
public
and
stakeholders
in
the
local
areas
and
nationwide
have
opportunities
to
comment
on
the
"
necessity"
finding
for
the
proposed
local
fuel
control
measure
prior
to
a
final
decision
by
EPA.
We
also
note
that
industry
and
the
public
are
provided
with
notice
and
opportunity
to
comment
when
individual
states
engage
in
rulemaking
actions
and
thus,
are
not
precluded
from
raising
fuel
costs
and
supply
concerns.

In
summary,
Congress
specifically
provided
an
exception
to
preemption
for
state
fuel
measures
that
are
necessary
for
achievement
of
a
NAAQS.
Where
a
state
control
or
prohibition
is
preempted,
a
state
may
adopt
nonidentical
fuel
control
measures
only
upon
a
showing
of
necessity
under
section
211(
c)(
4)(
C).
Therefore,
any
expansion
of
local
fuel
requirements
under
today's
action
or
the
proposed
IAQT
will
be
limited
to
those
areas
that
need
the
local
fuel
control
measure
to
meet
a
NAAQS
and
can
make
the
prerequisite
showing
of
necessity.
The
Agency
will
make
decisions
in
any
particular
case
by
applying
the
law
and
applicable
regulations
and
guidelines
to
the
specific
facts
at
issue.

Unlike
local
fuel
control
measures
that
must
be
incorporated
into
SIPs
under
section
211(
c)(
4)(
c),
reformulated
gasoline
(
RFG)
is
mandated
under
211(
k)(
10)(
D)
for
the
nine
worst
ozone
areas
with
population
over
250,000
(
at
the
time
of
the
1990
Clean
Air
Act
amendments).
In
addition,
areas
subsequently
reclassified
as
severe
ozone
nonattainment
are,
by
operation
of
law,
RFG
covered
areas
one
year
after
the
effective
date
of
the
reclassification.
Under
today's
action
for
the
8­
hour
ozone
standard,
no
area
will
fall
under
the
severe
ozone
nonattainment
classification
that
is
not
already
an
RFG
covered
area
under
the
1­
hour
standard.
Thus,
today's
action
will
not
create
any
additional
mandatory
RFG
covered
areas.

There
may
be
an
incentive
for
other
areas
to
consider
opting
into
the
RFG
program
to
achieve
additional
emission
reductions.
States
requesting
RFG
opt­
in
under
section
211(
k)(
6)
do
not
have
to
make
a
showing
of
necessity
under
211(
c)(
4)(
C),
but
EPA's
rules
limit
opt­
in
to
only
those
areas
classified
as
marginal,
moderate,
serious
or
severe.
Under
today's
rule,
areas
designated
nonattainment
for
the
8­
hour
standard
and
with
a
1­
hr
design
value
lower
than
0.121
ppm
(
the
lowest
value
specified
in
Table
1
in
subpart
2)
will
be
subject
to
the
planning
provisions
of
subpart
1.
Their
nonattainment
classification
will
be
"
areas
affected
by
overwhelming
transport."
Because
none
of
the
areas
designated
under
subpart
1
will
be
classified
as
a
marginal,
moderate,
serious,
or
severe
ozone
nonattainment
area,
these
areas
may
not
opt
into
the
RFG
program
based
on
their
8­
hour
designation.
For
the
same
reason,
areas
classified
under
subpart
2
as
other
than
marginal,
moderate,
serious
or
severe
also
may
not
opt
into
the
RFG
program
based
on
their
8­
hour
designation.
Further,
during
the
time
period
that
the
effective
date
of
an
EAC's
designation
as
nonattainment
based
on
the
8­
hour
standard
is
deferred,
it
may
not
opt
into
the
RFG
program
based
on
that
deferred
8­
hour
designation.
However,
until
the
1­
hour
classifications
are
withdrawn
and
regardless
of
the
8­
hour
classifications,
all
areas
classified
under
subpart
2
for
the
1­
hour
standard
as
marginal,
moderate,
serious
or
severe
may
opt
into
the
RFG
program
based
on
their1­
hour
classifications.

For
the
areas
that
qualify
for
RFG
opt­
in
under
today's
action
based
on
their
1­
hour
or
8­
hour
designations,
section
211(
k)(
6)
does
not
grant
EPA
authority
to
deny
a
State's
request
for
RFG
opt­
in,
as
long
as
it
meets
the
criteria
of
section
211(
k)(
6).
Consequently,
an
EPA
study
of
the
impact
of
today's
rule
on
the
availability
and
cost
of
the
additional
use
of
RFG
under
the
8­
hour
standard,
as
DOE
has
suggested,
would
have
no
bearing
on
today's
action.
RFG
covered
area
opt­
in
is
determined
by
section
211(
k)(
6)
­
not
EPA
regulations.
