EPA420-F-93-006
November 1993
ENFORCEMENT OF VOLATILITY
REGULATIONS:
QUESTIONS AND ANSWERS
Field Operations and Support Division
Office of Mobile Sources
U.S. Environmental Protection Agency
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PREFACE
This edition of the Enforcement of Volatility Regulations --
Questions and Answers responds to questions we received
concerning the manner in which the United States Environmental
Protection Agency intends to implement and enforce the gasoline
volatility regulations at 40 CFR §§ 80.27 - 28. It was prepared
by the Field Operations and Support Division of the Office of
Mobile Sources, United States Environmental Protection Agency,
and supersedes the 1992 edition of this document. Answers that
have been revised from the 1992 edition are indicated by an
asterisk (*). New questions and answers are indicated by a
double asterisk (**). Questions and answers that no longer apply
due to statutory, regulatory or policy changes have been deleted.
Regulated parties may use this document to aid in achieving
compliance with the volatility regulations. However, it does
not, in any way, alter the requirements of the volatility
regulations.
We will attempt to respond in writing to any additional
questions on this subject. Please send any such questions in
writing to Director, Field Operations and Support Division
(6406J), United States Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460.
Mary T. Smith
Director
Field Operations and Support Division
Washington, D.C.
November, 1993
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TABLE OF CONTENTS
A. LEAD TIME ISSUES 1
B. ESTABLISHING THE CLASSIFICATION OF PRODUCT AND
APPLICABLE RVP STANDARD 5
C. CLASSIFICATION OF REGULATED PARTIES 11
D. LIABILITY OF REGULATED PARTIES 15
E. DEFENSES 21
F. TEST METHODS 41
G. SAMPLING METHODS 51
H. INSPECTIONS 55
I. NOTIFICATION OF VIOLATIONS 57
J. REMEDIAL ACTION 59
K. STATE VOLATILITY PROGRAMS 61
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A. LEAD TIME ISSUES
1. Question: Can a refiner ship or a pipeline transport higher
RVP fuel in the summer to be used in the winter?
Answer: The regulations prohibit the sale, supply, offering
for sale or supply, dispensing or transport of gasoline whose
volatility exceeds the applicable standard. "Applicable
standard" is defined in the regulations as the standard for the
geographical area and time period in which the gasoline is
intended to be dispensed to motor vehicles.
The issue of what is the applicable standard will only arise
when gasoline is moving through the distribution system. Once
gasoline is delivered to a service station or fleet dispensing
facility, the applicable standard will be the RVP standard for
the area in which the facility that is selling, offering for
sale, or dispensing gasoline during the control period is
located. For gasoline in other parts of the distribution
network, the Agency anticipates that refiners, importers,
distributors, ethanol blenders, resellers, and carriers will
clearly designate the volatility class of gasoline and the
location in which it is intended to be dispensed to vehicles
during the control period. Where this is not done and this
information cannot be determined, the Agency generally will
assume that the applicable standard is the standard for the area
in which the facility is located.
Therefore, gasoline that is not intended to be dispensed to
motor vehicles until after the close of the volatility control
period on September 15 may be lawfully shipped prior to that
date. However, the burden will be on the parties involved in the
sale and distribution of such product to demonstrate that it will
in fact be dispensed at a later date and to assure that it is not
dispensed during the control period. Particularly at a facility
directly supplying retail and fleet facilities (e.g., a terminal
or bulk plant), product intended for later use would have to be
kept carefully segregated from low volatility product being
shipped to such facilities, until after September 15. Should
such high RVP fuel actually end up at a retail station or fleet
facility prior to the close of the control period, this will
constitute a violation of the regulations for which responsible
parties will be liable. The Agency encourages additional
oversight testing when "winter" gasoline is in the system.
In order to determine if particular product is intended for
dispensing after the control period, the Agency will generally
rely on certifications or disclaimers contained in documents
accompanying the product which clearly state the intended use of
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the product, as well as any other evidence showing the status or
intended use of the product.
2. Question: What should a retailer do if, due to low turnover,
he still has noncomplying gasoline in his tanks when he receives
complying gasoline from the distributor at the beginning of the
compliance period? If he has a large tankful, does he have to
hold it all summer? May a terminal close and seal off tankage
that does not meet specifications?
Answer: The regulations provide a two-date system for the
start of the volatility control period, May 1 for upstream
parties and June 1 for retail outlets and wholesale purchaser
consumers. Retail stations should begin receiving lower RVP fuel
from their distributors even before the effective date of the
distributor's compliance period (as the distributor brings his
facility into compliance) and by such date, at the latest, the
retailer should begin receiving product that fully meets the
applicable RVP standard.
In the case of a terminal that has product exceeding the
applicable RVP standard at the beginning of the compliance
period, the regulations require that this product not be sold,
supplied, offered for sale or supply, dispensed, or transported.
The alternatives available are: a) store and seal the product
until a time period when the product can be distributed, provided
it is clearly designated as product not intended to be sold,
supplied, offered for sale or supply, dispensed, or transported;
b) transport the product to a geographic area where the product
can be used, provided that such transportation is only for the
purpose of correcting the high RVP; c) blend lower volatility
product with the higher RVP product to bring its volatility
within the standard.
*3. Question: Can an upstream facility located in a 7.8 psi
standard area that supplies gasoline to 7.8 psi standard areas
store and dispense 9.0 psi RVP gasoline during the month of May,
without violating the volatility regulations?
Answer: The volatility regulations set the RVP standard for
all facilities in all areas at 9.0 psi for the month of May, even
those areas that have a 7.8 psi standard from June 1 to September
15. Therefore, any facility may store or distribute gasoline
whose RVP is 9.0 psi or below during the month of May. However,
upstream facilities located in 7.8 psi areas that are supplying
7.8 psi areas, must have for distribution gasoline that is in
compliance with the 7.8 psi standard on June 1. Moreover,
upstream facilities supplying gasoline to 7.8 psi standard areas
must take steps to ensure that gasoline moving through the
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distribution chain prior to June 1, is in compliance with the 7.8
psi standard if the gasoline is to be dispensed to motor vehicles
in a 7.8 psi standard area on or after June 1. If an upstream
facility that supplies 7.8 psi areas also supplies 9.0 psi
standard areas, it may have for distribution gasoline that is 9.0
psi, provided that it takes reasonable steps to ensure that the
9.0 psi gasoline will be shipped to the proper area. See Section
B, question 5, for further discussion of this situation.
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B. ESTABLISHING THE CLASSIFICATION OF PRODUCT AND
APPLICABLE RVP STANDARD
1. Question: What changes in gasoline RVP requirements have
been made or are anticipated as a result of section 211(h) of the
Clean Air Act Amendments of 1990?
Answer: Section 211(h)(1) of the Clean Air Act Amendments
of 1990 provides that EPA shall promulgate regulations making it
unlawful for any person during the high ozone season to sell,
offer for sale, dispense, supply, offer for supply transport, or
introduce into commerce gasoline with an RVP in excess of 9.0
psi. Section 211(h)(2) of the Act provides that EPA may not
impose an RVP standard lower than 9.0 psi in any area that has
been designated as an ozone attainment area, with the exception
of former ozone nonattainment areas that have been redesignated
as attainment areas.
In the Phase II volatility rulemaking published on June 11,
1990, EPA had designated statewide RVP standards to be
implemented in 1992 and beyond. Although no state standard was
set above 9.0 psi, several states, primarily in the South and
Southwest, were designated to have a statewide standard of 7.8
psi. Because the Clean Air Act Amendments of 1990 prohibit a
standard below 9.0 psi for ozone attainment areas, EPA amended
the volatility regulations in a rulemaking published on December
12, 1991 (56 FR 64704), to provide that the 7.8 psi standard
shall apply only to ozone nonattainment areas located in those
states designated as 7.8 psi states in the Phase II rulemaking.
Nonattainment areas located in states designated as 9.0 psi
states in the Phase II rulemaking have a 9.0 psi standard.
2. Question: How will an upstream facility establish at the
time of inspection that a product is intended to be blendstock
rather than finished product?
Answer: With regard to product being shipped out of the
refinery, in the absence of evidence to the contrary, if a
product's characteristics are such that the product meets the
regulatory definition of gasoline ("any fuel sold in any State
for use in motor vehicles and motor vehicle engines, and commonly
or commercially known or sold as gasoline") EPA will treat it as
finished gasoline subject to the volatility regulations.
However, as a matter of enforcement policy, EPA will not hold a
party liable for product that arguably meets the regulatory
definition of gasoline if: a) the product is clearly labeled as
blendstock and documentation supports this classification; b) the
label clearly states that the product may not comply with federal
RVP standards; c) some aspect of the product's quality other than
RVP supports the party's claim that it intended the product to be
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further blended before being sold, supplied, etc., as finished
product (e.g., the octane is higher or lower than product
typically sold as regular or premium grade gasoline); d) the
party has obtained a written certification from the
buyer/recipient of the product that he understands that the
product may be nonconforming and that he will not sell or supply
the product as finished gasoline unless or until it is blended to
meet federal RVP standards, or he receives the equivalent
certification from a subsequent buyer; and e) the party has no
knowledge or reason to believe that the product will not be
further blended to comply with the applicable RVP standard before
being sold, supplied, or transported as finished product.
3. Question: How will an upstream facility establish at the
time of inspection that a product is intended for storage or
export rather than for sale?
Answer: EPA will assume that all gasoline found in the
United States is intended for domestic sale and thus is subject
to the RVP standards unless the product is clearly documented to
be for export only and the evidence (e.g., normal commercial
documents) supports this classification. The label should
further clearly state that the product may not comply with
federal RVP standards. Similarly, regarding product in storage
at a refinery or importer facility, EPA will not hold a party
liable for product that does not comply with the applicable
standard if the evidence shows that the product is being stored
and is not being sold, offered for sale, supplied, offered for
supply, transported or dispensed. The Agency will generally rely
on certifications or disclaimers contained in documents
accompanying the product which clearly state the intended use of
the product, as well as any other evidence showing the status or
intended use of the product.
**4. Question: Assuming a carrier has an oversight program in
place, and a random sample is tested high for RVP, the gasoline
may still be in the carrier's system. Can the carrier reclassify
the finished product as blendstock, with proper documentation, in
order to deliver the gasoline out of its system? Also, if the
carrier contaminates the gasoline with a butane stream, for
example, can the product be downgraded to a blendstock?
Answer: If, in the situations described above, the carrier
clearly identifies the product as product having high RVP which
is not to be sold until and unless it is reblended to meet
applicable RVP standards, and the product is routed directly to a
reblending facility, EPA generally will consider the product to
be blendstock rather than finished gasoline being offered for
sale. If, however, such product, in fact, is routed to a retail
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outlet, EPA may find the carrier liable for the violation if the
carrier failed to take adequate measures to ensure that the high
RVP gasoline would be taken out of the distribution system and
reblended.
*5. Question: How can a party establish the place the gasoline
is to be sold for purposes of determining the applicable RVP
standard? If a party located in a 7.8 psi area maintains
inventories of both 7.8 psi gasoline and 9.0 psi gasoline (for
distribution to locations in both areas), what documentation
pertaining to gasoline volatility is the party required to
maintain? What documentation is required by a pipeline located
in a 7.8 psi area which sells only 9.0 psi gasoline designated
for 9.0 psi areas? Are there any requirements on terminal signs,
bills of lading, or other documents that will be required to
assure customers and EPA that the correct RVP gasoline is being
distributed to the proper locations? Would letters to
distributors notifying them of the availability of two RVP grades
of gasoline suffice? Must the loading arms at a terminal
truckloading rack be marked to indicate RVP? Where no indication
exists regarding intended destination, how will EPA determine the
applicable RVP standard?
Answer: The volatility regulations do not require parties
to maintain specific documentation pertaining to gasoline
volatility. However, if EPA tests gasoline at a facility located
in or near a 7.8 psi area to be between 7.8 and 9.0 psi, it will
ask the facility to look at documents of sale, such as bills of
lading or receipts, for evidence of the destination at which the
gasoline is intended to be dispensed to motor vehicles and/or
where the gasoline is being shipped.
If, in the normal course of his business, the party does not
have information regarding the actual destination of the
gasoline, it should clearly indicate on the documents of sale
that the gasoline contains 9.0 psi gasoline, not intended for
sale in 7.8 psi designated areas. The party should also inform
its customers at the beginning of the season that it will be
supplying 9.0 psi gasoline which should not be delivered to areas
requiring 7.8 psi gasoline. In addition, at terminals, the
gasoline should be labeled for RVP at the rack. In the absence
of any indication concerning intended distination, EPA will
assume that a party located in or near a 7.8 psi area will be
supplying outlets in 7.8 psi areas and will apply that standard.
In many cases, the trucker/distributor indicates the actual
destination (usually the retail facility name and address) on the
bill of lading before or after loading and leaves a copy at the
terminal. In this situation, the terminal should periodically
review the documents of sale for indications of misdeliveries.
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If misdeliveries are detected, the terminal should notify the
distributor and take appropriate action to ensure compliance,
including, if necessary, a refusal to supply a distributor or
carrier who continues to misdeliver gasoline.
In addition to documents of sale, EPA may ask for a list of
the party's distributors for possible follow-up inspections. If
a violation is found downstream and a party such as a terminal
is presumed liable for the violation, as a defense, the party may
provide evidence that it took the steps indicated above to ensure
delivery to the proper area. If the party has not taken these
steps, or, if the sales documents indicate misdeliveries, the
party will find it difficult to defend against the presumption of
liability.
6. Question: Given that a refinery does not offer gasoline for
sale at its location and ships on a pipeline to a proprietary
terminal some distance away, will the refinery be required to
meet the RVP standard in its tanks or can the proprietary
terminal act as a remote blending location and final point of
sale for EPA RVP monitoring purposes.
Answer: A refiner must meet the applicable RVP standard in
its tanks if the gasoline is sold as finished gasoline. As
indicated above, however, a refiner may sell gasoline as
blendstock intended to be further blended before sale as finished
product. In such case, the refiner must fulfill the criteria
outlined in the answer to Question 2 above.
*7. Question: What type of labeling of products will be
required? Must a party physically label tanks, or will it be
sufficient that records clearly indicate the RVP level and
whether the gasoline is intended for export, storage or to be
used as blendstock?
Answer: The regulations do not require that labels be
physically affixed to tanks of gasoline. Commercial documents
indicating the RVP level and whether the gasoline is intended for
export, storage or to be used as blendstock may be sufficient.
However, a party may wish to label its tanks to further protect
itself. Terminals located in or near a 7.8 psi standard area,
are advised to label the gasoline at the rack. (See Question 5
above.)
8. Question: If product type at a retail facility is in the
process of being changed to an alcohol blend, the product coming
from the pump nozzle may not initially satisfy the alcohol
content requirement at 40 CFR § 80.27(d)(2). Will the retail
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facility still be eligible for the special provision for alcohol
blends at 40 CFR § 80.27(d)(1) of the regulations?
Answer: In order to be eligible for the special provision
at 40 CFR § 80.27(d)(1), which provides for an additional one
pound per square inch allowance, the product coming from the pump
nozzle must satisfy the alcohol content requirement. This would
apply when product type is being changed at a retail outlet.
9. Question: Must the label required at 40 CFR § 80.27(d)(3)(i)
state the precise percentage concentration of ethanol?
Answer: The pump labeling requirement for ethanol blends
was deleted from the volatility regulations by the final
rulemaking published on December 12, 1991.
*10. Question: Did the Clean Air Act Amendments of 1990 require
changes to the one pound RVP allowance for ethanol blends
permitted in the volatility regulations?
Answer: Yes. In accordance with the Clean Air Act
Amendments of 1990, EPA published a final rule on December 12,
1991, which provides that, to qualify for the one psi allowance,
gasoline must contain denatured, anhydrous ethanol. The
concentration of ethanol, excluding the required denaturing
agent, must be at least 9% and no more than 10% (by volume) of
the gasoline. See 40 C.F.R. § 80.27(d)(2).
11. Question: Are gasoline volatility rules regarding the RVP
of gasoline ethanol blends similar in 7.8 psi and 9.0 psi
standard areas?
Answer: The volatility rules at 40 C.F.R. § 80.27(d)
regarding the one psi allowance for ethanol blends applies to
qualifying gasoline in both 7.8 psi and 9.0 psi standard areas.
*12. Question: Some vehicle and engine manufacturers blend test
fuels for the purpose of testing vehicles on a wide range of fuel
volatility. If the volatility of the blended fuel exceeds the
standard, what provisions will EPA extend for such testing?
Would the Agency relax the volatility requirements for the
production, storage, shipping and use of test fuels with high
RVPs in amounts less than ten thousand gallons?
Answer: On March 17, 1993, EPA published a final rule which
provides an exemption from the volatility regulations for
gasoline used for research or emissions certification. The
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requirements for obtaining this "testing exemption" are
contained in § 80.27(e) of the regulations. Basically, the
testing exemption requires the applicant to demonstrate that the
proposed test program: 1) has an appropriate purpose; 2)
necessitates the granting of an exemption; 3) is reasonable in
scope; and 4) exhibits a degree of control consistent with the
purpose of the program and the EPA's monitoring requirements,
which are outlined in the regulations.
**13. Question: Must a party obtain a testing exemption for
high RVP fuel to be used in vehicles not operated on the road or
in motor vehicle engines?
Answer: A party should obtain a testing exemption for any
high RVP gasoline that is sold, offered for sale, dispensed,
supplied, offered for supply, or transported during the
volatility control period that qualifies for an exemption.
**14. Question: What detail is required regarding the test
results obtained under a testing exemption?
Answer: The amount of detail required will depend on a
number of factors, such as the nature of the testing, the reason
for the testing, and what results are obtained from the testing.
See 40 C.F.R. 80.27(e) for further discussion of these
requirements.
15. Question: Are territories and possessions like Puerto Rico
covered under the regulations?
Answer: Only gasoline intended to be dispensed in the 48
states in the continental U.S. is subject to the regulations.
Product shipped to such states from places like Puerto Rico (or
Alaska or Hawaii) will be treated like imported gasoline.
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C. CLASSIFICATION OF REGULATED PARTIES
1. Question: What is the classification of a party who receives
and stores, but does not own the gasoline? What if he blends the
gasoline at the owner's discretion?
Answer: Under the regulations, "distributor" means any
person who transports or stores or causes the transportation or
storage of gasoline at any point between any gasoline refinery or
importer's facility and any retail outlet or wholesale purchaser-
consumer's facility. Thus, ownership is not necessary to render
a party a distributor under the regulations. A distributor who
transports or stores or causes the transportation or storage of
gasoline without taking title to or otherwise having any
ownership of the gasoline and without altering either the quality
or quantity of the gasoline is a "carrier" under the regulations.
Any person who blends gasoline, however, is classified as a
refiner and is subject to refiner liability and defenses. A
person who adds ethanol to gasoline (and meets the other elements
of the definition) is classified as an ethanol blender and is
subject to ethanol blender liability and defenses.
2. Question: Will a trader who buys and sells gasoline only in
"back-to-back" transactions, thereby taking legal title but not
more than instantaneous physical custody of such products, be
considered a "distributor" under 40 CFR § 80.2?
Answer: Yes, the regulations provide for distributor
liability on the part of any person who transports or stores or
causes the transportation or storage of gasoline at "any point"
between any gasoline refinery or importer's facility and any
retail outlet or wholesale purchaser-consumer's facility. A
party who takes legal title to the product transports or stores
or causes the transportation or storage of the gasoline during
the time it is in that party's custody and, thus, is covered as a
distributor under the regulations.
3. Question: Will a blender of gasoline be considered a
"refiner" under 40 CFR § 80.2?
Answer: Yes. However, if the party meets the definition of
an ethanol blender, he will be subject to ethanol blender
liability and defenses rather than refiner liability and
defenses.
4. Question: Assume that an ethanol blender uses raffinate as a
fuel component. In the event of an RVP violation detected
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downstream, must the blender meet the defense requirements of a
refiner or of an ethanol blender as described in 40 CFR §
80.28(g)?
Answer: The Agency interprets the definition of "ethanol
blender" strictly as any person operating a refinery at which
gasoline is produced solely through the addition of ethanol to
gasoline, and at which the quality or quantity of gasoline is not
altered in any other manner. A blender that uses raffinate as a
fuel component thus could not be classified as an "ethanol
blender," but rather would be classified as a "refiner" and would
be required to meet the defense requirements of a refiner in the
event a violation is detected downstream.
5. Question: Often, fuel terminals offering ethanol and
gasoline for blending are automated or otherwise unsupervised,
allowing a truck driver to create a load of blended fuel without
direct supervision from the component supplier. The fuel is
either blended in line while feeding the truck or actually splash
blended in the truck. Accordingly, in the latter circumstance,
are there two ethanol blenders, one the terminal operator
responsible for testing the RVP of the component gasoline, and
the second being the truck operator creating the newly blended
fuel and responsible for testing the RVP thereof?
Answer: This hypothetical describes three potentially
responsible parties. Where ethanol and gasoline are "splash"
blended in a truck operated by a common carrier, usually there
are two "ethanol blenders" subject to the volatility regulations:
the common carrier company and the company that hired the common
carrier. The regulations define an "ethanol blender" as any
person who owns, leases, operates, controls, or supervises an
ethanol blending plant. In the situation described, EPA would
consider the truck as the ethanol blending plant. The company
that owned and/or operated the truck would thus meet the
definition of "ethanol blender," and in the event of a violation
would be responsible for meeting the defense for an "ethanol
blender" found at 40 CFR § 80.28(g)(6) of the regulations.
The company that hired the truck in most situations would
meet the definitions both of "ethanol blender" and "distributor,"
40 CFR § 80.2(1), for "caus[ing] the transportation or storage of
gasoline at any point between any gasoline refinery or importer's
facility and any retail outlet or wholesale purchaser-consumer's
facility," and in the event of a violation would be required to
meet the defenses at 40 CFR §§ 80.28(g)(3) and (g)(6).
Under the regulations, where a violation is detected at an
ethanol blending plant, the distributor, carrier, and refiner or
importer of the gasoline which was blended with ethanol are
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deemed to be in violation, in addition to the ethanol blender.
40 CFR § 80.28(d)(1). The company that operated the terminal and
provided the component gasoline would meet the definition of a
gasoline distributor and in the event of a violation would be
liable unless it is able to establish the defense for
distributors found at 40 CFR § 80.28(g)(3).
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D. LIABILITY OF REGULATED PARTIES
1. Question: Where one refiner supplies gasoline to its branded
retail outlet which was obtained in exchange from a terminal
operated by another refiner, and a violation is detected at the
retail outlet, who is liable?
Answer: The regulations provide for presumptive liability on
the part of both parties to the exchange, one party as the
"branded" refiner and the other as a distributor.
2. Question: For violations found at branded or unbranded
distributor facilities, will EPA seek to hold liable only the
distributor in custody of the product at the time of the
violation or will all distributors in the prior chain of title be
considered vicariously liable?
Answer: All distributors will be presumed liable.
3. Question: For violations found at branded or unbranded
retail outlets or wholesale-purchaser consumer facilities, will
EPA hold liable all distributors in the prior chain of title to
that product?
Answer: Yes.
4. Question: As to mere storage of gasoline at refineries or
import terminals, does EPA's enforcement policy exemption apply
to only the actual importer or refiner of such product, or to any
person who owns or took title to such product while it remained
in storage at the import or refinery terminal?
Answer: The policy regarding gasoline in storage will apply
to any person who owns or takes title to the gasoline so long as
the person can show that the product is in fact being stored and
is not being sold, offered for sale, supplied, offered for
supply, transported or dispensed. If the product is moved out of
storage and put into the chain of distribution, the owner of the
product is subject to liability for nonconforming gasoline as set
forth in the regulations.
5. Question: If a refiner ships product to its own terminal via
a fungible pipeline and can show that only product with correct
volatility was put into the pipeline by the refiner, but that
product having high volatility is discovered at the terminal, is
the refiner liable? If the refiner removes the high volatility
product from distribution, how can the refiner show that it has
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done so?
Answer: In order to establish a defense in this situation,
the refiner would have to satisfy the elements of the refiner's
defense at 40 CFR § 80.28(g)(4).
The refiner can establish it has removed the high volatility
product from distribution by placing disclaimers or
certifications on the paperwork relating to this product which
clearly state the product is not in distribution or that it is to
be distributed to an area where it will be in compliance. If the
product is further distributed as non-complying fuel, this will
constitute a violation.
6. Question: In a situation where a violation is detected at a
branded retail outlet which is supplied from a branded
distributor which, in turn, receives gasoline through a pipeline
which transports the commingled production of the refiner whose
brand appears, plus one or more other refiners, are all the
refiners liable? How could the refiners establish a defense?
Answer: The refiner whose brand name appears at the retail
outlet would be liable. In order to establish a defense, it
would have to show each of the elements of the branded refiner
defense in 40 CFR § 80.28(g)(4). The other refiner(s) whose
commingled product was delivered to the retail outlet may be
liable if they meet the definition of another regulated party
(e.g., distributor).
7. Question: If a violation is found at a terminal and the
terminal operator does not own the gasoline, who would be liable?
Answer: The owner or operator of a terminal which stores
gasoline without taking title to or otherwise owning the gasoline
and without altering either the quality or the quantity of the
gasoline, is defined by the regulations as a "carrier" (see 40
CFR § 80.2(t)). As a carrier, this party would be presumed
liable because the gasoline having high volatility was found at
that carrier's facility. In addition, the refiner, importer, or
ethanol blender who produced or imported the gasoline would be
presumed liable.
8. Question: What should a carrier do if it would be in breach
of a contract with the company supplying the product by refusing
to transport or store product having excessive volatility?
Answer: Where gasoline having excessive volatility is found
at a carrier facility (including a terminal which does not take
title to the product), the carrier is presumed liable for
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violating the regulations. We believe carriers can, and should,
negotiate contracts which are drafted in such a way that the
carrier is not obligated to transport or store product in
violation of the regulations.
9. Question: In a case where more than one party is presumed
liable for a violation, and more than one of the parties is
unable to establish a defense, is each party liable for a
separate penalty?
Answer: Each party who is liable for a violation, and who
is unable to establish a defense, is liable for a separate
penalty.
*10. Question: If a finished product tank at a refinery is
analyzed by the refiner using the test method in Appendix E (or
another test method where adequate correlation to the method in
Appendix E is demonstrated) and is found to be 0.2 psi below the
applicable RVP standard and is released for sale, and a day later
the tank is retested by the refiner and found to be 0.1 psi over
the applicable RVP standard, is the refinery out of compliance?
Answer: If, as in this scenario, the average of the
refiner's test results is at or below the standard, it is
unlikely that EPA would find the product in violation based on
EPA's testing of a sample of the product taken at the facility
during an inspection. If, however, upon testing, EPA finds the
gasoline to be in violation, it may bring an enforcement action.
If a violation is found downstream from the refinery, the refiner
can fulfill the test element of its defense by showing that the
average of its test results was at or below the standard.
11. Question: Which party in the distribution system is liable
(must make a defense) if a sale of 9.0 psi gasoline is made in a
7.8 psi standard area? Is liability different for: 1) company-
owned retail stations selling exchange gasoline, 2) branded
jobber retail stations selling exchange gasoline, 3) branded
jobber retail stations selling spot gasoline.
Answer: If 9.0 psi gasoline is sold by a retail outlet in
an area having a 7.8 psi standard, all parties in the
distribution chain will be presumed liable, as they would for any
RVP violation, in accordance with the liability provisions of 40
CFR § 80.28. Liability attaches to any retail outlet selling
gasoline that is out of compliance.
12. Question: For a terminal supplying both levels of RVP-
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controlled gasoline (7.8 psi and 9.0 psi) with the intent of
satisfying both markets appropriately, what liability, if any, is
incurred if a distributor knowingly buys 9.0 psi gasoline and
supplies it to a 7.8 psi area retail station?
Answer: If a distributor supplies 9.0 psi gasoline to a
retail outlet in a 7.8 psi area, the terminal will likely be
presumed liable for the violation. However, the terminal may
rebut the presumption of liability by meeting the elements of its
defense, which would include a showing that it took the steps
indicated in Section B, Question 5 above, to ensure that the
gasoline would not be sold in a 7.8 psi area.
*13. Question: To what extent will a gasoline refiner be liable
for the blending of ethanol gasoline (in meeting the ethanol
concentration requirement) by a terminal which sells to (1)
branded retail outlets (2) unbranded retail outlets?
Answer: In this scenario, the terminal would be the ethanol
blender subject to the defenses contained in 40 CFR §80.28(g)(6).
If the terminal sells the ethanol blend to a retail outlet
displaying the refiner's brand name, the branded refiner would be
presumptively liable for violations. Where the terminal sells
the product to an unbranded retail outlet, under the regulations
as originally promulgated, the refiner would not have been
presumed liable. The final rule published on March 17, 1993,
however, modified the rule to provide that the refiner at whose
refinery the gasoline was produced may be deemed liable for
violations found at an unbranded retail outlet. (58 Fed. Reg.
14485). Distributors of the gasoline may also be deemed liable
for the violation. In the case of an ethanol blend violation,
however, parties presumed liable may be able to meet the
causation element of their defense by showing that the violation
was caused by the ethanol blender's failure to blend the gasoline
with the proper concentration of ethanol.
14. Question: Many petroleum distribution facilities
(terminals) are automated. Therefore, the owner/operator does
not personally dispense product into a transportation vehicle.
Rather, the driver loads those products or mixtures (e.g.,
ethanol blends) desired by the retail customer. On occasion, a
driver, not an employee/agent of the owner/operator, will arrive
at the terminal with a non-complying material already in the
transportation vehicle. To this material, he/she will add
complying product and ethanol in a quantity sufficient to make
the entire load 10% by volume. The amount of ethanol added to
the vehicle may actually be more than 10% by volume of what was
loaded from the terminal. Under this scenario, should the
carrier and/or retailer be found to have supplied a product that
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did not meet RVP compliance standards, it appears that they and
the distribution facility (and perhaps others), would be held
presumptively liable. Do the regulations provide the terminal
owner/operator with the opportunity to remove itself from the
presumption of liability by the mere showing that it did not
participate in the blending? Must the owner/operator provide
only as much ethanol as may be necessary to meet the 10% ethanol
by volume requirement for the product loaded at the terminal?
Answer: If the truck driver dispenses ethanol and gasoline
into the truck compartment in amounts determined by the driver,
the trucker would be liable as the ethanol blender.
Consequently, it would be the trucker's responsibility to meet
the 10% ethanol by volume requirements of the product loaded at
the terminal rather than the terminal. If the product is
premixed and sold as a 10% ethanol product, the terminal would be
liable as the ethanol blender. If a violation is found
downstream from the trucker, and it is determined that the
trucker is the ethanol blender, the terminal may still be
presumed liable as a distributor, particularly if the violation
involves a high RVP level, rather than an improper amount of
ethanol.
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E. DEFENSES
1. Question: What kind of documentation or other evidence must
a party provide to establish that it (or his employees or agents)
did not cause a violation?
Answer: All factors cannot be listed because factual
circumstances differ and because EPA cannot anticipate all the
types of evidence that may show non-causation. For all parties,
however, in meeting the non-causation portion of their defense,
the regulations provide that the party must show, by reasonably
specific showings, by direct or circumstantial evidence, that the
party (or the party's employee or agent) did not cause the
violation. In many instances the cause of the violation will be
evident from the inspection results and related documentation.
In the case of a refiner or importer, providing results of
the sampling and testing of the gasoline in question before it
left the refinery or importer's facility would be a strong factor
in determining whether the refiner or importer caused the
violation. However, because the refiner or importer could have
caused the violation despite acceptable test results, additional
evidence may be required. For example, a refiner could ship to
its own downstream terminal two products with different
volatilities intended for different volatility standard areas.
If these products become commingled after leaving the refinery,
the product intended for the lower volatility area could be in
non-compliance. The refiner thus could have "caused" this
violation even though the product was in compliance when it left
the refinery.
For distributors, resellers, ethanol blenders and carriers,
the best evidence to show they did not cause the violation is
evidence of who caused the violation and how. Other strong
evidence would be test results showing the particular gasoline in
question met the standards when it was delivered from these
parties to the next person in the distribution chain. Evidence
consisting of the other defense elements (e.g., receipt of
product which was in compliance, an oversight program with
periodic test results, and evidence of blending no more than 10%
ethanol in the case of ethanol blenders) would assist in showing
the violation must have been caused by another, but this is not
necessarily conclusive. Where no cause can be established for a
violation, and no person in the distribution chain will accept
responsibility, the showing necessary for each person in the
chain to establish it did not cause the violation will be more
difficult.
It is not sufficient for a distributor to show that it did
not handle the gasoline, because there are ways to cause a
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violation without actually touching the gasoline (e.g., by
misrouting 9.0 psi RVP gasoline to a 7.8 psi RVP area).
Moreover, other elements of the defense still must be met.
In the case of a retailer, the following types of evidence
are examples of relevant factors relating to whether the retailer
caused a violation:
1) records evidencing whether or not all gasoline purchased
by the retailer complied with the applicable standard;
2) any evidence regarding whether the retailer knew or had
reason to believe that the gasoline did not meet the standard;
3) any evidence regarding alteration of gasoline stored in
his tanks by the retailer;
4) turnover rate; and
5) any evidence that the retailer may have received gasoline
from an unidentified supplier(s).
2. Question: What criteria will EPA use to evaluate oversight
programs; is sampling and testing required, and if so how much?
What type of service station monitoring is considered acceptable?
Is there a minimum percentage of shipments which must be tested?
What constitutes an acceptable oversight program for a gasoline
refiner supplying (1) branded jobbers selling under that
refiner's brand, (2) another independent or unbranded jobber? As
part of its oversight program, must a branded refiner perform
periodic sampling and testing at their non-owned terminals which
supply the branded refiner's dealers pursuant to an exchange
agreement, where the non-owned terminals carry out their own
periodic sampling and testing program? Is a retail sampling
program required for an adequate defense against an incident of
noncompliance at a branded retail outlet? If so, what is an
adequate retail sampling program? Please detail oversight
responsibilities for jobbers.
Answer: For a distributor, reseller, ethanol blender, or
carrier (when the violation is found at the carrier facility) to
establish a defense, these parties must show (in addition to
other elements) an oversight program such as periodic sampling
and testing to monitor the product being sold, supplied, or
transported by that party. This program would thus monitor the
quality of product in the possession or ownership of the party,
and not of product which has passed downstream. The volatility
regulations do not require that an oversight program consist of
sampling and testing, but EPA is not aware of an effective
oversight program which would not include some periodic sampling
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and testing.
The frequency of periodic testing which would satisfy this
requirement will depend upon several factors, including the
following: a) the results of previous sampling; b) the volume of
product in a particular batch (the larger the volume, the greater
the justification for sampling and testing that batch); c) the
degree of confidence in the quality of the product which was
received; d) the opportunity for increased volatility while the
product is in the possession of the party (e.g., higher
volatility product present which could be commingled); and e) the
opportunity to deliver product to an area requiring a lower
volatility.
In the case of refiners, two types of sampling and testing
are required (in addition to other requirements) in order to
establish a defense where a violation is found downstream and
they are presumed liable. The refiner is required to show
through sampling and testing that the gasoline determined to be
in violation was in compliance with the applicable standard when
transported from the refinery. This generally would require that
all product be tested. In addition, when the violation is found
at a branded facility downstream, the refiner also must show a
quality assurance program at its downstream branded facilities,
such program to include periodic sampling and testing. The
frequency of periodic sampling and testing which would satisfy
this requirement will depend upon factors such as the following:
a) the volume of product being handled at a particular facility;
b) the opportunity for violations to occur (e.g., the presence of
higher volatility product which could cause a violation through
commingling); c) the results of previous sampling at that
facility and at facilities upstream and downstream from the
facility found in violation; d) if there is reason to believe
relevant facilities do not comply with the contractually imposed
requirements designed to prevent violations; and e) the results
of sampling and testing in the market area where the violation
occurred. A branded refiner may use other parties to conduct
periodic sampling and testing downstream. However, if the
branded refiner is to meet the oversight portion of its defense,
it cannot simply rely on another party's oversight; the refiner
must have an appropriate contract with the party and maintain
oversight with regard to that party's program. If the other
party's sampling or testing is inadequate the branded refiner
will not be able to meet its defense.
3. Question: What specific criteria are required for a gasoline
refiner to establish a defense in case of a violation? If RVP
levels were to exceed EPA standards, what enforcement
consideration would EPA extend to refiners who acted in good
faith and can produce source records demonstrating that original
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testing information indicated compliance?
Answer: The elements required for a refiner to establish a
defense to a violation detected at a downstream facility are
contained in 40 CFR § 80.28 (g)(2) (for violations found at
unbranded distributor or ethanol blender facilities, carrier
facilities, retail outlets or wholesale purchaser consumers) and
40 CFR § 80.28(g)(4) (for violations found at branded
distributor, ethanol blender, retail, or wholesale purchaser-
consumer facilities). In any case where a refiner is presumed
liable for a violation found at a downstream facility, one
element required of the refiner to make its defense is test data
indicating that the gasoline was in compliance when it was
delivered to the next party in the distribution system or when
transported from the refinery (depending on the type of
downstream facility).
4. Question: What documentation would be necessary (e.g.,
transfer and receipt records, testing, and sales documents) to
satisfy EPA that gasoline was, in fact, 7.8 psi maximum when sold
out of a terminal which carries both 7.8 and 9.0 RVP gasolines.
Are tests at transfer to terminal storage adequate or would EPA
demand testing daily or at each loading rack?
Answer: The regulations do not require a terminal to test
the gasoline daily or at each loading rack; rather, the
regulations require an oversight program, which normally will
include periodic sampling and testing. However, the more
evidence the terminal can provide showing that the gasoline met
the standard when it left the terminal (shipping and sales
documents, test results of the gasoline in question, etc.), the
easier it will be for the terminal to establish the non-causation
part of its defense.
5. Question: What constitutes an acceptable RVP oversight
program where ethanol is blended into trucks? Since the fuel in
the truck may be stratified immediately after "blending" can the
truck blender satisfy the oversight portion of its defense by
hand-blending samples of base products with ethanol, duplicating
the truck ratios of gasoline to ethanol?
Answer: The basic requirements for ethanol blender
oversight programs for RVP are referred to in the answer to
Question 2, above. In the case of truck blenders, sampling and
testing from locations in addition to the trucks may be useful or
necessary. For example, samples could be taken after the product
is dropped, if it is dropped into a relatively empty storage
tank, or samples could be taken directly from truck compartments.
However, because of the possibility that product carried in the
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different truck compartments is not homogeneous (this is
particularly true in the case of truck splash blending), the
oversight program needs to include periodic sampling and testing
of product carried in each of the truck's compartments
separately, and not only of the truck as a whole.
Hand-blending a small amount of gasoline product with
ethanol and then testing may be one facet of such an oversight
program, but we doubt whether it would be reliable enough to
substitute for taking representative samples of finished blended
product from storage tanks.
6. Question: What constitutes an acceptable oversight program
for pipeline and motor carriers; is testing required?
Answer: Both pipeline carriers and motor carriers are
presumptively liable for violations detected at their facilities.
To rebut this presumption, both types of carriers have to
demonstrate (in addition to the other defense elements) an
oversight program concerning the product which is carried. Such
an oversight program does not necessitate testing each load or
batch of gasoline but envisions a program such as periodic
sampling and testing. The frequency of testing would depend on
factors such as the size of the loads or batches, and larger
loads or batches would justify more frequent testing. The
oversight requirement applies to commingled product, as well as
product received from a single source.
In particular, motor carriers could have a valid oversight
program without actually testing the product themselves. For
example, they could arrange with the owner of the product to do
periodic testing of the gasoline immediately before or after
delivery and could use these test results as a basis for
oversight. Such an alternative oversight program may be
particularly appropriate for a carrier who delivers product that
does not pass through a facility owned or operated by him.
Pipeline carriers, on the other hand, normally transport
batches of gasoline through their own facilities which are very
large, so that testing of every batch by the pipeline operator
may be necessary. Factors relative to the appropriate frequency
of sampling for a pipeline include the following: a) the results
of previous sampling (the discovery of gasoline having excessive
volatility would necessitate increased sampling frequency); b)
the volume of product being moved (the larger the volume of a
batch, the greater the justification for sampling and testing
that batch); c) the degree of confidence the pipeline has in the
representations made by the company providing gasoline to the
pipeline; and d) the opportunity for increased volatility due to
commingling with higher volatility product in the pipeline.
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7. Question: Where a pipeline company makes direct shipments to
terminals (with no intermediate tankage or commingling of
products), is redundant testing of shipments by the pipeline
required for adequate defense, given that multiple testing of all
shipments has been performed by the refinery?
Answer: As indicated above, the regulations do not require
carriers, including pipelines, to test each shipment of gasoline
to make a defense; rather carriers are required to have an
oversight program, which normally will include periodic sampling
and testing. However, in the case of a pipeline, testing each
batch of gasoline may be necessary to ensure that the gasoline
meets the applicable standard. The amount of testing may be
influenced by the amount of confidence the pipeline has in the
company supplying the gasoline.
8. Question: What must a refiner do to meet the "contract
defense," as set forth in 40 CFR § 80.28(g)(4)?
Answer: The defenses set forth in 40 CFR § 80.28(g)(4)
relate to violations discovered at branded distributor, reseller
or ethanol blender facilities (40 CFR § 80.28(c)) and at branded
retail outlets and wholesale purchaser-consumer facilities (40
CFR § 80.28 (e)) .
In such cases the refiner must meet all the elements of the
defense in 40 CFR §§ 80.28(g)(4)(i) and (ii), and must meet one
of the additional elements in 40 CFR § 80.28(g) (4) (iii) . 40 CFR
§§ 80.28(g)(4)(iii)(B), (C), (D) and (F) set forth the "contract
defense."
First, the refiner must demonstrate the existence of a
contract with the appropriate entity. This contract must have
been designed to prevent the specific circumstances that caused
the particular violation.
Second, there must be an adequate oversight program, such as
periodic sampling and testing, to ensure compliance with the
contractual obligation. This oversight defense element has been
discussed in response to other questions in this section.
With regard to the contract itself, we feel it is
inappropriate for EPA to set forth specific requirements
regarding the necessary provisions of such contracts. Rather,
such contracts will be evaluated on a case-by-case basis.
However, the following is a partial list of broad areas that a
contract should address:
1) The amount of sampling and testing that must be done by
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the entity with whom the contract is in place (e.g.,
distributor).
2) Specific procedures and other specific requirements to
assure that gasoline or blend stock is not commingled with
gasoline that is to be marketed in areas having a lower RVP
requirement, and to assure that gasoline is not shipped to areas
having a lower RVP requirement. The specific requirements must
be aimed at the circumstances as they exist with each entity.
They must be more than mere recitals that the entity must avoid
violating the volatility regulation.
3) Required training regarding the regulations and the
procedures and requirements outlined in the contract to prevent
violations.
4) Appropriate responses if gasoline having excessive
volatility is identified by periodic sampling and testing or by
any other means, including (where appropriate) reporting,
corrective actions, steps to prevent future violations, steps to
identify the cause of the violation, resampling and testing,
increased sampling and testing, retraining, etc.
5) Appropriate responses if it is discovered that a person
with whom a contract is in place is not in compliance with the
contract provisions. Such responses should include affirmative
actions which are reasonably calculated to compel the person to
comply with the contract provisions.
9. Question: Where a violation is found at a retail outlet,
when is the carrier who delivered the gasoline to the retail
outlet liable, and how may the carrier establish a defense?
Answer: When a violation is found downstream from a carrier
(i.e., not at the carrier's facility), the carrier is liable only
if EPA is able to show that the carrier caused the violation.
The only defense available to the carrier in such a case is to
show that it did not cause the violation or that no violation
occurred. The carrier defense at 40 CFR § 80.28(g)(1) applies
only to violations found at carrier facilities.
10. Question: What records are required for purposes of
establishing a defense, and for how long should these records be
kept? What types of documents should be kept on site?
Answer: The regulations do not require a party to keep any
specific records. However, to establish a defense, certain
records will normally be needed by parties, such as refiner test
records showing that the gasoline was in compliance when
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delivered to the next party downstream, and records relating to
oversight testing programs.
The statute of limitations for prosecuting violations under
the Clean Air Act is five years from the date of discovery of the
violation. A party therefore may wish to keep records related to
establishing a defense for five years to protect itself.
The regulations do not require that records be kept on site.
EPA inspections will be facilitated, however, if documents
relating to product classification are made available to EPA
inspectors on site. This would be of particular importance where
the facility supplies both 9.0 and 7.8 psi areas, or where the
product is to be used only for blendstock, is intended for
export, or is in storage. In the absence of documents that
provide this information (or other satisfactory evidence), EPA
will assume that the gasoline is intended for sale in the area in
which the party is located.
11. Question: How long must regulated parties maintain physical
gasoline samples taken in conjunction with an oversight program?
Have sample retention requirements changed for refinery testing?
Terminals?
Answer: The Agency's policy with regard to sample retention
has not changed. As in the past, the Agency will evaluate the
adequacy of a refiner's test data and any party's oversight
program on the basis of records of sampling and testing, rather
than by evaluation of samples of gasoline. A retained sample
could conceivably be useful in resolving a discrepancy between a
company's and EPA's test results. Of course, the volatility of a
sample is reduced by opening the container for the first test and
may be reduced by mere storage, so that the ultimate usefulness
of retained samples is questionable. If a company desires to
retain samples in the event they are needed as a defense element,
it would be best to coordinate the activity with an EPA
laboratory correlation program.
12. Question: Can a party rely on tests done by another party
or by an independent laboratory? Will a third party company
assume any liability if their actions lead to violations?
Answer: Under certain circumstances tests performed by
another party or laboratory may be acceptable, especially where
the reliability of the tests is high (e.g., where a carrier
contracts to have a supplier sample and test product immediately
after delivery). Liability is not transferred to the third party
who conducts the tests, however; the burden remains on the
regulated party to demonstrate that any testing is performed in
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accordance with the regulatory requirements, and that sampling
methods and frequency are adequate.
13. Question:. Where a single organization such as a co-op owns
and operates a refinery, pipeline, and bulk plants which receive
no product from outside this system, and where retail outlets and
wholesale purchaser-consumers purchase all of their product from
the organization, can a single oversight program satisfy the
requirements of the RVP rule?
Answer: For a refiner, carrier, or distributor to establish
a defense under the regulations, these parties must demonstrate
an oversight program which includes periodic sampling and
testing. An oversight program performed by someone other than
the regulated party would satisfy this requirement so long as the
sampling and testing is carried out in a manner which adequately
monitors product quality at all appropriate places along the
distribution network. In the scenario described in the question,
the refiner must demonstrate testing of all product leaving the
refinery, as well as periodic sampling at the remaining places
along the distribution network (pipeline, bulk plants, retail
outlets, etc.). The results of the downstream sampling program
may justify a program of less frequent sampling, but it is
unlikely that downstream sampling could be eliminated altogether.
It is difficult or impossible for EPA to state a specific
sampling frequency that is necessary. The frequency of sampling
at the bulk terminals would depend in part on whether the system
is truly closed. Moreover, the regulated parties are familiar
with their system, equipment, personnel, history of problems with
quality assurance, etc. Each of the separate regulated parties
in the distribution network could agree to use a sampling program
conducted by the parent organization, but if a violation is found
by EPA and this oversight program is found to be deficient, the
regulated parties will not be able to establish the oversight
element of the defense.
14. Question: If a party has adjacent facilities (different
divisions of the same company), or a company pipeline delivers
gasoline to tankage owned by the same company, do they have to
test continuously at both?
Answer: An appropriate sampling and testing program will
depend upon the specific factual situation involved. If product
is shipped from both facilities, testing should be done at both
facilities. If product is transferred from one facility to the
other through a pipeline used by the company to transport product
exclusively between the facilities (i.e., a "tight system")
before being shipped out, testing product just prior to its
leaving the second facility may be sufficient to assure that the
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product complies with the applicable RVP standard when it leaves
the party's facility.
15. Question: The Clean Air Act Amendments of 1990 provide for
a new defense for violations involving ethanol blend products.
Describe this new defense and any regulatory changes made in
accordance with the statutory provisions for this defense.
Answer: The new defense for violations involving ethanol
blend products is for a distributor, blender, reseller, carrier,
retailer, or wholesale purchaser-consumer who can demonstrate
that: 1) the gasoline portion of an ethanol blend meets the
applicable RVP standard; 2) the ethanol does not exceed its
waiver condition under section 211(f)(4) (i.e., 10%); and 3) no
additional alcohol or other additive has been added to increase
the volatility of the ethanol portion of the blend. This defense
provides protection from liability if the volatility of an
ethanol blend exceeds the applicable standard by more than one
psi when all of the requirements of the statute have been met.
This statutorily mandated defense is in addition to, and does not
supersede, any of the other defenses contained in the
regulations.
The Clean Air Act Amendments also provide that a party may
demonstrate the elements of the new defense by production of a
certification or other evidence acceptable to the Administrator.
Accordingly, on December 12, 1991, EPA amended the volatility
regulations to include the new defense and to provide that a
party may demonstrate the elements of the defense by production
of a certification from the facility from which the gasoline was
received. The new defense is limited to ethanol blends
containing a minimum of 9% ethanol and a maximum of 10%. The
regulations specify that, if the demonstration is made by a
certification, it must be supported by evidence that the
statutory criteria for the defense have been met, such as an
oversight program conducted by or on behalf of the party alleged
to be in violation, which includes periodic sampling and testing
of the gasoline or monitoring the volatility and ethanol content
of the gasoline. Such certification will be deemed sufficient
evidence of compliance provided it is not contradicted by
specific evidence, such as testing results, and provided that the
party has no other reasonable basis to believe that the facts
stated in the certification are inaccurate. In the case of a
violation alleged against a retail outlet or wholesale purchaser-
consumer facility, such certification will be deemed an adequate
defense, provided that the party is able to show certificates for
all of the gasoline contained in the storage tank found in
violation.
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16. Question: In the absence of a certification, as described
above, what type of evidence will EPA accept regarding the
ethanol content of gasoline for purposes of making a defense
under section 80.28(g)(6)?
Answer: The best evidence that the ethanol content of the
gasoline contains at least 9% ethanol but no more than 10%
ethanol, is the result of an alcohol test conducted in accordance
with the procedures specified in Appendix F to the regulations.
In the absence of such test results, the Agency will
consider the following evidence in evaluating whether the
gasoline had the proper ethanol content when it left the
blender's facility: a) the results of a periodic testing program
carried out by the ethanol blender; b) evidence of a quality
control program carried out by the blender; c) records reflecting
the actual blending of the gasoline in question, showing the
amounts and types of products blended together; d) records
maintained for the purpose of the IRS tax exemptions for ethanol
use; e) records regarding the bulk volumes of alcohol and
gasoline blendstock purchased; and f) evidence that any party
downstream from the blender added, or had an opportunity to add,
additional alcohol or gasoline to the product. Where a violation
is found at the ethanol blender's facility based upon
insufficient or excessive ethanol content, it will be very
difficult for the blender to establish a defense. Where the
violation is found downstream from the blender's facility, the
evidence described above will be considered.
**17. Question: Last season, EPA found several volatility
violations at the retail outlet level that were due solely to an
insufficient amount of ethanol in the sample. To qualify for the
1 psi allowance for ethanol blends, gasoline must contain between
9% and 10% anhydrous ethanol. Investigations of these facilities
indicated that the ethanol blender/carrier had, according to the
bill of lading, correctly picked up enough ethanol to comprise
10% of the final ethanol blend product. In light of this, what
can ethanol blender/carriers, ethanol blender/terminals, and
retailers do to prevent this kind of violation in the future?
Answer: Many of these violations were due to the addition
of an ethanol product into a tank that contained some nonethanol
product or vice versa. Even though each product was in
compliance when it entered the tank, the resultant product was in
violation due to insufficient ethanol to qualify for the 1 psi
allowance. Other violations were caused by a combination of
factors that ethanol blenders should take into account in
determining whether the gasoline will meet the 9%-10% ethanol
requirement.
First, when ethanol is purchased by a terminal from the
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ethanol producer, it contains a certain amount of denaturant.
Many blenders may assume that the ethanol product contains no
more than 5% denaturant. If a person purchases 100 gallons of
ethanol containing 5% denaturant, he is receiving 95 gallons of
ethanol, or 95% pure ethanol. Placed in 900 gallons of gasoline,
the anhydrous ethanol content would be 9.5% of the finished
ethanol blend product. This amount, of course, would be within
the allowable limit of between 9% and 10%. However, EPA has
taken several samples of ethanol from the ethanol tank at various
terminals and has found the product to contain as low as 92%
ethanol (8% denaturant). Using the example above, placed in 900
gallons of gasoline, the anhydrous ethanol content would be 9.2%,
which is still acceptable as long as nothing else occurs to lower
that level.
Several conditions or factors occurring during
transportation or after the product is placed in an underground
tank at a retail outlet, however, may lower the ethanol content
of the blend even further. Some examples are: rain contributing
to water in the gasoline, splash blending and then traveling for
short distances before delivery to the retail oulet, meters being
incorrectly calibrated at the terminal, leftover gasoline product
in in-line blending causing an insufficient amount of ethanol to
be placed in the truck compartment, water in the underground tank
at the retail outlet, gasoline sitting in the underground tank
for long periods at the station without frequent deliveries.
Many, although not all, of the violations involved slower moving
product such as premium or leaded gasoline, which indicates that
stratification from sitting too long without a delivery may be a
significant cause. Even if the ethanol contains as little as 5%
denaturant, it may require only a series of seemingly
inconsequential circumstances such as those listed above to lower
the ethanol content of the product below 9%. If the ethanol
product contains more than 5% denaturant, the likelihood of one
or more of these circumstances lowering the ethanol content to
below 9% is even greater.
To avoid liability for violations caused by low ethanol
content, terminal/ethanol blenders are advised to determine the
true anhydrous ethanol content of their ethanol product and
compensate for low ethanol in their blending procedures.
Similarly, terminals who sell ethanol to blenders should inform
the ethanol blender/carriers of the ethanol content. Ethanol
blender/carriers should compensate for the true "purity" of the
ethanol and should take care if they are splash blending and
intending to travel only short distances. Retailers should check
their underground tanks for water either daily or before
deliveries. Retailers should also consider ordering smaller and
more frequent deliveries of slow-moving product.
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**18. Question: EPA discovered RVP violations at a few retail
outlets in two cities that were involved in the winter oxygenate
program. The violations occurred when the retail outlets
attempted to switch from gasoline with ethanol during the winter
oxygenate season to ordinary gasoline after the end of the
season. Small amounts of ethanol remaining in the underground
tank contributed to a high RVP during the RVP season. Since many
more cities were involved in the winter oxygenate program this
past season, there is a greater potential for violations. What
can a retailer do to prevent this type of violation from
occurring?
Answer: Most retailers know that if you add 1000 gallons of
10.0 psi gasoline to 1000 gallons of 8.0 psi gasoline, you will
get 2000 gallons of 9.0 psi gasoline. Therefore, retailers tend
to add large amounts of low RVP gasoline to force the RVP down
quickly. However, this same procedure can cause a retailer to
violate the volatility regulations if he is changing from
gasoline containing ethanol to ordinary gasoline. If you add
1000 gallons of gasoline with 10% ethanol to 1000 gallons of
ordinary gasoline, you will get 2000 gallons of 5% ethanol
gasoline. The problem with this method is that the RVP of
gasoline containing 5% ethanol is about the same as the RVP of
gasoline containing 10% ethanol - 1 psi higher than without the
ethanol. However, since the gasoline does not contain between 9%
and 10% ethanol, it would not qualify for the 1 psi allowance.
Gasoline containing only 1% ethanol can still have a 1/2 psi
boost from the ethanol and place the retailer in violation.
Therefore, the method frequently used to reduce RVP - adding
large amounts of low RVP gasoline - causes the retailer to have a
large amount of product that is in violation when the RVP season
arrives.
There are two solutions. One would be to pump out the tank.
The second would be to allow the tank level to drop as low as
practicable and order only a small amount of replacement product.
This process should be repeated a few times until the ethanol
drops to a level that does not boost the RVP. At that point, the
underground tank can be tested for ethanol content and RVP.
These violations in the 1992 RVP season tended to occur in slow
moving product at stores with low turnover. Retailers with this
problem should be especially careful.
19. Question: Is it necessary for retailers and wholesale
purchaser-consumers to receive and keep certificates showing the
gasoline they receive complies with the applicable RVP standard?
Answer: There is no requirement that retailers and
wholesale purchaser-consumers have certificates showing receipt
of in-compliance product to establish a defense for a violation
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found at their facility. These parties must show, however, that
they did not cause the violation, and an in-compliance
certificate would be evidence for such a showing. Also, as
discussed above, these parties may wish to obtain certifications
for ethanol blend products to avail themselves of the certifica-
tion defense against violations involving ethanol blends.
*20. Question: Concerning the documentation element of the
defense for distributors, resellers, ethanol blenders and
carriers, is there any preferable terminology to be printed on
bills of lading, invoices, or certificates concerning RVP
compliance with the applicable standard (e.g., must the exact RVP
be stated)? May the certification be contained on a pipeline
shipment nomination document? Do certifications which refer to
unspecified future shipments ("blanket certifications") satisfy
the defense elements relating to such representations. Can
"blanket certifications" satisfy the labeling requirement for
blendstock? Will the refusal by a supplier to provide
certification remove the requirement of the distributor who
receives product that it obtain a certification of compliance?
Answer: As originally promulgated, the volatility
regulations required that distributors, resellers, ethanol
blenders and carriers (for violations at the carrier's facility)
must (in addition to other elements) demonstrate through bills of
lading, invoices, delivery tickets, loading tickets or other
documents that the gasoline in question conformed to the
standard when it was delivered to them to meet their defense.
This defense element was ruled invalid as applied to carriers by
the U.S. Court of Appeals for the District of Columbia Circuit in
National Tank Truck Carriers v. EPA (902 F.2d 177 (D.C. Cir.
1990)). Accordingly, the final rule published on March 17, 1993,
deletes this defense element for carriers, and also for
distributors and ethanol blenders.
"Blanket certifications" would be inappropriate for
identifying product that is being shipped as blendstock. If a
refiner or importer believes that a particular product with high
volatility is so clearly not gasoline that there is no
conceivable way it could be used as gasoline, that party may
decide to ship the product without labeling the product as
blendstock. Such a decision would be at the risk of the refiner
or importer, however; if someone downstream in fact sells, offers
for sale, dispenses, supplies, offers for supply or transports
the product as gasoline, the refiner or importer would not be
able to take advantage of the blendstock defense if the product
was not properly labeled as blendstock.
21. Question: If a motor gasoline cargo is transported in more
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than one truck compartment, what are the test requirements to
demonstrate compliance for the full cargo?
Answer: Oversight programs would need to provide for
periodic sampling and testing of the various products handled.
For a carrier or distributor oversight program, there would be no
requirement to test each compartment of each truck for every
delivery. However, because of the possibility that product
carried in the different truck compartments is not homogeneous
(particularly if gasoline was splash blended in the truck), the
oversight program needs to include periodic sampling and testing
of product carried in each of the truck's compartments
separately, and not only of the truck as a whole.
22. Question: If a facility blends finished gasoline with
raffinate and ethanol either in-line just prior to delivery to
the purchaser's truck or splash blends the components in the
truck itself, what will the RVP testing requirements be for this
facility for purposes of meeting its defenses?
Answer: A party that obtains finished gasoline or gasoline
blending stock and blends that product with any component other
than ethanol (such as raffinate) will be subject to the refiner
liability and defense provisions. Thus, it must test each batch
of product that leaves its facility. If gasoline is blended in
trucks, each truck compartment would have to be sampled and
tested separately. Branded refiners would need to conduct
additional oversight sampling and testing downstream.
Where both raffinate and ethanol are blended into the
gasoline at the facility, with the ethanol blended in-line or
splash blended into trucks, the refiner would not be relieved of
its requirement to test each batch under the provisions of the
current regulations. Obviously, testing each batch of blended
product would be much easier if all components were blended and
mixed prior to being released from the tanks. In the
alternative, each batch of fuel containing all components other
than ethanol could be blended and the resultant fuel tested and
ethanol could be added at a separate ethanol blender's facility.
The ethanol blender's facility would then be subject only to the
liability and defense provisions relative to ethanol blenders.
Obviously, if the would-be refiner facility in this scenario
purchases finished gasoline and elects to add only ethanol, then
only the ethanol blender liability and defense provision would
apply.
23. Question: Where a branded retail outlet is supplied
directly by the branded refiner and an appropriate contract is
imposed by the refiner on such retailer, would a program of
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reconciling deliveries to the retail outlet with pump meter
readings (and the RVP of delivered product is included on the
delivery documents) be an acceptable alternative to a sampling
and testing program?
Answer: Since the refiner must test each batch of gasoline
before it leaves the refinery, and since, in the above scenario,
the refiner maintains control of the product until it reaches the
retailer, an adequate oversight program might be developed which
would include minimal sampling at the retail level.
Nevertheless, in determining the sampling frequency at the retail
outlets, a number of factors should be taken into consideration.
These would include such matters as the opportunity for RVP to
change between refinery and retail outlet, prior history of
problems with individual retailers, and other factors discussed
in this section.
24. Question: May distributors and resellers without bulk
facilities establish an adequate oversight program that does not
involve sampling and testing, but that does involve careful
monitoring of amounts of product ordered, picked up, and dropped,
and includes making oversight contracts with retailers and
monitoring retailers' gasoline delivery records?
Answer: Contracts with retailers (and contractual
oversight), monitoring gasoline delivery information, training,
and other quality assurance measures may be useful elements of an
oversight program. However, we believe periodic sampling and
testing is necessary. If the distributor or reseller obtains
product directly from the refiner and no commingling of product
can take place, the distributor or reseller may be able to rely
on the sampling and testing of the refiner, especially if a
branded refiner's oversight program includes periodic downstream
sampling and testing. If the product is received from a
terminal, a trucker may be able to arrange for testing to be
performed by the terminal immediately before or after delivery.
In any event, a distributor's or reseller's sampling program
only needs to include periodic sampling, not sampling of all
product delivered to it.
25. Question: May distributors or resellers with bulk
facilities, but who do not manufacture, blend or alter product,
establish an adequate oversight program by sampling and testing
once at the beginning of the season? Must all retail outlets be
sampled over the course of the season?
Answer: Distributors and resellers with bulk facilities but
who do not alter the quality or quantity of gasoline, must
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conduct periodic sampling of the fuel in their possession or
ownership. Sampling once at the beginning of the season would be
inadequate. However, there is no regulatory requirement that
such distributors conduct sampling at the retail outlets which
ultimately receive the fuel (although such sampling may be
required as part of the branded refiner's oversight program).
*26. Question: What is required for an adequate defense where
noncomplying product is delivered by a third party on exchange?
Answer: The elements required for a defense to a violation
incurred because noncomplying product was delivered by a third
party on exchange would depend on the particular party and
situation involved. For example, refiners are presumed liable
(and the appropriate branded refiner defenses apply) for
violations found at their branded retail stations, distributor
and ethanol blender facilities, whether or not the gasoline was
obtained through an exchange agreement. Refiners who supply
gasoline to unbranded retail, distributor and ethanol blender
facilities may also be presumed liable (and the appropriate
refiner defenses apply) for violations found at those facilities,
even where the refiner obtained the gasoline on exchange from
another party. If, however, the refiner can demonstrate that the
third party caused the violation, it may be able to meet the non-
causation element of its defense. Other parties in the
distribution chain who are presumed liable for a violation may
also be able to satisfy the non-causation element of their
defense if they can show that a third party caused the violation
by delivering noncomplying product.
*27. Question: The terminal operator often is not advised of
the specific delivery location of each truckload of gasoline
leaving the terminal. It is common for customer-supplied
destination information to indicate only the destination state.
Under such circumstances, how can the terminal operator create a
defense against presumptive liability if the carrier delivers 9.0
psi gasoline from the terminal into a 7.8 psi standard area? If
the terminal operator indicates on the bill-of-lading (or other
appropriate shipping document) that the gasoline is not to be
marketed in 7.8 psi standard areas, would this create a defense?
If not, what more would be required of the terminal operator?
Answer: As indicated in Section B, Question 5 above, if a
violation due to a misdelivery is found downstream from the
terminal and the terminal is presumed liable for the violation,
EPA will look to evidence demonstrating that the terminal:
informed its customers at the beginning of the volatility season
that it would be supplying 9.0 psi gasoline which should not be
delivered to 7.8 psi areas; indicated on the sales documents that
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the gasoline contained 9.0 psi RVP which should not be delivered
to 7.8 psi areas; and labeled the tanks at the rack for RVP. EPA
will also look for any evidence of misdeliveries on the bills of
lading or other sales documents that should have alerted the
terminal that a carrier was misdelivering a product.
**28. Question: Where 9.0 psi gasoline is picked up at a
terminal and misdelivered to a 7.8 psi standard area, will the
oversight required of the terminal for defense be different at:
a) a terminal operated by the supplier; b) a terminal operated by
another party where the supplier maintains an inventory (under a
terminalling agreement) involving i) segregated inventory or ii)
commingled inventory; c) a terminal operated by another party
where the supplier obtains gasoline from another supplier's
inventory (under an exchange agreement). Will the oversight
required of the supplier be different in these situations?
Answer: Where the violation is found downstream from the
terminal, and the terminal is owned by the supplier, the terminal
may be presumed liable as the distributor of the gasoline subject
to the defenses for distributors, including oversight and
noncausation. In the case of a misdelivery, the terminal's
defense should include a showing that it had taken the steps
outlined in the answer to Section B, Question 5, above, to ensure
that 9.0 psi gasoline would not be delivered to a 7.8 psi area.
Where the terminal is owned by another party, the terminal would
be a carrier and is likely not to be be presumed liable unless
there is evidence that the carrier caused the violation. This
would be true regardless of whether the product had been
segregated or commingled, or obtained under an exchange
agreement. However, as discussed in Section B, Question 5, in
the case of a misdelivery, it will be difficult for a carrier to
show that it did not cause the violation if it failed to take the
suggested steps to ensure that 9.0 psi gasoline would not be
delivered to a 7.8 psi area. The supplier may be presumed liable
as the refiner and/or distributor whether or not it owned the
terminal, and would be subject to the defenses for these parties
including oversight and noncausation. This also would be true
regardless of whether the product had been segregated or
commingled, or obtained under an exchange agreement. Like the
terminal, the supplier's defense should include a showing that it
had taken the suggested steps to ensure delivery to the proper
area. With the exception of a supplier who is a branded refiner
parties are not required to conduct oversight of downstream
parties.
**29. Question: What does a refiner or terminal have to show to
make a defense against a violation caused by tank stratification?
Can a refiner or terminal sell gasoline out of the tank if such
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sales are controlled to ensure that the high RVP gasoline will
not be sold? Should the refiner or terminal notify EPA when it
becomes aware of the problem, or just have a plan in place?
Answer: A stratified tank is one in which the RVP varies
from one portion of the tank to the next. For example, at the
start of the volatility season, a tank may have winter gasoline
with higher RVP in the top portion of the tank and gasoline with
lower RVP in the lower portions of the tank. If EPA tests
gasoline from such a tank and finds the RVP to be above the
standard in one portion of the tank, the facility will be liable
for that portion, unless it can establish that it had appropriate
controls in place for monitoring the gasoline (prior to EPA's
inspection) to ensure that the high RVP gasoline would not be
sold, offered for sale, dispensed, suppplied, offered for supply,
or transported in violation of the regulations.
Pumping the high RVP gasoline out of the tank is obviously
the most effective way of ensuring that it will not be sold.
Testing each batch of gasoline that leaves the tank, or an alarm
system to prevent the sale of gasoline below a certain level may
also be effective measures. The measures taken to prevent the
distribution of the high RVP gasoline, however, will vary from
facility to facility. It is up to each facility to institute
measures that will be the most practical and effective. EPA will
evaluate such measures on a case by case basis. Giving EPA
advance notification of a stratification problem would be
evidence that the facility was aware of the problem. Awareness
of the problem without more, however, will be insufficient to
defend against a stratification caused violation. As indicated
above, the facility must be able to show that it had effective
controls in place to prevent the sale of the high RVP gasoline
prior to EPA's inspection. In the absence of such evidence, EPA
will assume that the high RVP gasoline would have been sold but
for EPA's inspection. With proper controls and evidence
substantiating that no noncomplying was or will be sold out of
the tank, gasoline meeting the applicable RVP standard may be
sold out of a stratified tank.
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F. TEST METHODS
*1. Question: Which testing methods will EPA accept for
purposes of testing compliance with the applicable RVP standard
by importers, refiners and all upstream parties? What RVP test
equipment will be recognized as establishing an acceptable
defense, if used in testing finished gasoline for shipment out of
a refinery, or receipt and sale from a remote terminal?
Answer: As originally promulgated, the volatility
regulations prescribed two methods for purposes of testing
compliance with the applicable RVP standard: the manual tank and
gauge method and the Herzog method (Appendix E). Refiners and
importers were required to use one of these methods to establish
that gasoline was in compliance with the applicable standard when
it was delivered to the next party in the distribution system.
On March 17, 1993, EPA promulgated a final rule which deletes
these test methods from Appendix E and replaces them with Method
3, the Evacuated Chamber Method, as the the method EPA will use
for enforcement purposes.
The regulations as originally promulgated allowed upstream
parties other than refiners and importers to use other test
methods for purposes of oversight testing. The March 17, 1993
final rule extends this flexibility to refiners and importers.
Refiners and importers, therefore, may use any test method for
defense testing if adequate correlation to the EPA methodology
contained in Appendix E is demonstrated.
**2. Question: Why did EPA decide to replace the existing test
methods with Method 3?
Answer: The reasons for replacing the methods in Appendix E
with Method 3 are discussed at length in the preamble to the
March 17, 1993 final rule. Briefly, EPA determined that Method 3
is as precise as the best test method originally contained in
Appendix E, and will increase lab to lab precision. In addition,
EPA found Method 3 desirable because of its ease of use,
comparable instrumentation cost, and lower operating costs.
** 3. Question: Why did EPA choose the equation published in
the Federal Register on March 17, 1993, for Method 3? It is
based on limited data from only one lab and could be biased.
Would EPA consider using the ASTM equation, which was established
in the 1991 ASTM Round Robin?
Answer: EPA considered using the ASTM equation. The
reasons EPA chose the equation published in the March 17, 1993
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final rule are presented in the preamble to the rule, which
includes a lengthy discussion of the advantages and disadvantages
of both equations (See 58 Fed. Reg. 14481-82) .
**4. Question: EPA states in the March 17, 1993 final rule that
ASTM "uses a larger set of data," which "increases the chance of
error in the program." Usually, a larger sample size decreases
the changes for error in a program. Is the use of the word
"increases" an error in the Federal Register?
Answer: No. In the preamble to the March 17, 1993 final
rule, EPA acknowledges that an advantage of the ASTM program is
that it uses a larger set of data, and that a disadvantage of the
EPA program is that its data set is smaller. However, EPA
believes that the ASTM program's use of more laboratories
increases the chances of error in the program owing to lab to lab
variation. See 58 Fed. Reg. 14482 for further discussion of this
issue.
**5. Question: In our opinion, and considering what happens in
actual use across any gasoline distribution system, choosing an
equation developed via correlation of a very limited number of
test instruments in a single laboratory is not realistic. For
example, two Grabner instruments could test 2,2-dimethyl butane,
(2,2-DMB), one at the low limit and the other at the high limit
of acceptability (10.64 to 10.93 psi total pressure). These
differences in test values for the 2,2-DMB will also be reflected
in the vapor pressure test values for identical gasoline samples
tested in both units. Will EPA tolerance levels account for
these variations?
Answer: The question suggests that an intra-laboratory
measure is appropriate for setting enforcement tolerances. EPA
has consistently stated its belief that precision statistics for
use in setting enforcement tolerances should be developed
entirely within its own laboratory.
**6. Question: Please discuss what EPA will consider adequate
correlation to Method 3 for purposes of defense testing using
another test method. Please supply specific guidelines or
instructions on the appropriate use by refiners of the results of
round-robin RVP testing conducted with EPA's Ann Arbor lab? How
should a refinery incorporate any correlation bias (versus EPA's
Grabner method) revealed by the round-robin testing? Is it
appropriate for a refinery to average the individual differences
between the refinery's RVP test results and those obtained by
EPA, and then use this average bias as the correlation
adjustment? Does the refinery somehow have to adjust its
calculation (or its use) of the correlation bias to reflect the
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variability (i.e., "scatter") of individual differences in RVP
test results (refinery versus EPA)? If so, how should this be
done?
Answer: Any round-robin testing conducted with EPA's Ann
Arbor laboratory should not be used to establish a correlation
with Method 3. Instead, table I gives the mean total pressure
and mean RVP for the three standards of isooctane, 2,2-
dimethylbutane, and n-pentane as measured by the EPA Ann Arbor
laboratory by Method 3. A refiner choosing to use a test method
other than Method 3 would use these values and the values
obtained by it from the other method to develop (using
appropriate statistical procedures) the correlation equation.
Table I - Mean Total Pressure and Mean RVP for Isooctane,
2, 2-dimethylbutane and n-pentane as measured by the
EPA Ann Arbor laboratory by Method 3 .
Standard
Isooctane
2 , 2 -diemethylbutane
n-pentane
Mean Total
Pressure
2.546
10.695
16.284
Standard
Deviation
0.023
0.034
0.033
Mean
RVP*
2 .087
9.877
15.221
Standard
Deviation
0.022
0.032
0.032
* - RVP psi = (0.956*X) - 0.347 or RVP kPa = (0.956*X) - 2.39
where X = total measured vapor pressure in psi or kPa .
Examples of the Dry Manual and Digital Herzog (transducer
and gauge) test procedures and their respective correlation
equations to Method 3 may be requested from the United States
Environmental Protection Agency, Attention: Carl Scarbro, 2565
Plymouth Road, Mail Code SDSB-12, Ann Arbor, Michigan, 48105.
**7. Question: Given that the Grabner is ASTM method D-5191-91
(1992 ASTM 5.03, p. 876, footnote 4) and that the "Setavap"
method is also ASTM method D-5192-91, will EPA also allow the use
of the Setavap instrument for final product gasoline compliance
testing? In other words, are the Grabner and Setavap results
equivalent as far as EPA is concerned? Will EPA accept the
automatic (SwRI) instrument?
Answer: EPA will use the Grabner instrument for enforcement
purposes; however, as discussed above, refiners and importers may
use another instrument (or method) for defense purposes. It is
EPA's understanding that the Setavap, Mini-UIC (when used with a
vacuum pump), and SwRI instruments can meet the requirements as
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specified in Method 3. It should be emphasized that if a party
uses an instrument meeting the requirements of Method 3, then
that party must use the equation in the Method 3 converting the
total measured vapor pressure to RVP, as published on March 17,
1993, in the Federal Register (58 FR 14476) . As indicated above,
a party choosing to use a test method other than Method 3 must
demonstrate adequate correlation to Method 3.
**8. Question: How often is the refinery expected to update its
calculation of the correlation bias? If a refinery has
calculated its correlation bias using historical round-robin
results, is the refinery expected to review and update
correlation bias each time an additional round-robin result is
received from EPA, or can the refiner elect to update its
correlation bias on a fixed periodic basis (e.g., monthly,
annually)?
Answer: It is up to the refiner to establish a schedule for
the reevaluation of its correlation. Clearly, any time a refiner
has data indicating a change in the correlation, then the bias
should be corrected.
**9. Question: California has a different correlation equation
than the one given in the March 17, 1993 rulemaking. Which
equation will apply to California ozone nonattainment areas?
Answer: The equation published in the Federal Register on
March 17, 1993, will apply to enforcement of the federal rule in
California as in any state. See Section K, Question 10 for
further discussion of this issue.
*10. Question: Does EPA plan to continue to use the portable
Grabner analyzer for field enforcement purposes? Will violations
be issued on results obtained in field tests using the Grabner
test equipment, or will samples be sent to Ann Arbor for final
determination as has been done in the past?
Answer: EPA will continue to use the Grabner Instruments
model CCA-VPS for field screening during inspections. However,
if an apparent violation is found, the sample will be sent to the
Ann Arbor laboratory for testing using the Ann Arbor laboratory
portable Grabner.
11. Question: How will variations between field measurements and
the main laboratory be treated? For example, what if a field
check reveals a 9.0 psi, but an identical sample sent by the
enforcement officer to the main EPA lab measures 8.8 psi?
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Answer: The results obtained by the laboratory in Ann Arbor
will be used as the basis for determining noncompliance.
12. Question: Where can parties get RVP testing done? Will EPA
accredit independent laboratories for RVP testing?
Answer: ASTM publishes a directory of testing laboratories
every year, which may be obtained from ASTM at 1916 Race Street,
Philadelphia, Pennsylvania 19103-1187.
EPA has no plans to accredit independent laboratories for
RVP testing. However, EPA will establish a record, which will be
available to the public, of correlation with a laboratory.
*13. Question: Can a company that owns all stages of the
refining and distribution chain use their in-house lab if they
work with EPA to ensure a quality assurance/quality control
program for their lab?
Answer: A company may use their in-house lab for sampling
and testing for a quality assurance/quality control program if
they use the procedures outlined in the regulations or another
test method that is supported by appropriate correlation data.
*14. Question: Assume a distributor/carrier is using a third
party laboratory to perform testing for an oversight program, and
that this third party lab plans to use the method as published in
the final rule on March 17, 1993 (Method 3). In order to protect
the distributor/carrier, must the third party lab prove
correlation with the EPA lab? Will the third party lab be liable
if they do not follow the correct test method? Is correlation
only required if the third party lab intends to use other test
methods?
Answer: Correlation testing with the EPA lab is not
required if a party uses the test methodology in Appendix E.
However, for any test method used, such correlation would serve
to strengthen a party's defense to a RVP violation. Note,
however, that appropriate correlation data must be provided when
other test methods are used. A third party lab is not liable for
RVP violations under the regulations.
*15. Question: To what decimal place must test results be
reported for the Method 3?
Answer: The regulations require that test results be
reported to the nearest 0.01 psi for the Method 3 (as published
in the final rule on March 17, 1993).
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**16. Question: Will values up to 9.04 psi (or 7.84 psi) be
acceptable for defense purposes for refiners?
Answer: EPA considers values over 9.00 psi (or 7.80 psi) to
be over the standard for purposes of a refiner's defense.
**17. Question: Since no two instruments are exactly the same,
it is not surprising to note that even when using the new EPA
equation for conversion of Method 3 readings to RVPE, a bias
still exists when the values determined in that manner are
correlated directly with values determined on samples of the same
gasoline on the instrument used at the Ann Arbor laboratory.
While a great majority of these biases are not of very great
magnitude, a few are as large or larger than 0.2 psi. Is it
appropriate to correct for this bias prior to recording the data
on the official refinery records showing compliance, or should
the data obtained using the correlation formulas, obtained from
EPA, be recorded on those documents?
Answer: The values obtained using the formula contained in
Appendix E should be recorded.
*18. Question: Is the acetone wash of the bomb in the dry
manual method (described in Appendix E) required? Is this an
environmentally unsound method for washing these instruments?
Can a more compatible wash solvent be used?
Answer: EPA stated in the Notice of Proposed Rulemaking,
published on October 18, 1991, that it had found a possible
source of error in the Appendix E dry manual tank and gauge
method cleaning procedure relating to use of the acetone wash
solvent. EPA asked for comments regarding possible solutions.
One commenter stated that the acetone was remaining trapped in
the gauge. EPA subsequently determined, based on recent
experiments in an API member laboratory, that changes to the
procedure were warranted. In particular, EPA determined that the
acetone should be replaced with n-pentane. The fact that acetone
remains trapped in the gauge has the potential for being
environmentally unsound, since contamination by acetone may
affect the instrument's test results. However, since EPA deleted
this method from Appendix E in the March 17, 1993 final rule, the
changes regarding the wash method were not published in the
Federal Register. These changes, nevertheless, are recommended
for parties who use the dry manual or gauge method.
Consequently, EPA has placed the appropriate changes in a
memorandum to the Air Docket (Docket No. A-92-03, No. V-D-03).
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19. Question: If EPA collects a sample at a facility that has a
laboratory, will they perform or witness testing at that facility
or will all samples be shipped elsewhere for testing?
Answer: All samples for which a field test indicates a
possible violation will be shipped to Ann Arbor for testing.
20. Question: What happens if EPA test results of a particular
sample of gasoline reflect a higher RVP than the respective
regulated party's test results of the same gasoline? Is a party
safe from liability if it conducts single or multiple tests or
performs correlation testing with EPA?
Answer: In the context of an enforcement proceeding, any
party may challenge the accuracy of EPA's test results. A party
may present test results to EPA in order to show that a violation
did not occur or to satisfy a required element of a defense that
requires presentation of test results determined through the use
of Appendices D and E of the volatility regulations.
Whether a party's test results will satisfy a required
element of a defense will be determined on a case by case basis.
In evaluating such evidence, EPA will look at the quality of the
party's testing program to determine how much weight to give test
results in a particular case. For example, EPA will place a
higher value on test results if: 1) multiple samples (rather than
a single sample) have been taken from a batch and tested; 2) the
party's laboratory has run correlation tests with EPA's
laboratory, an independent laboratory, or a national exchange
program; and/or 3) a party's testing program includes regular
verification using a standard of known RVP. Absent any
indication of an irregularity in EPA's sampling and testing
procedures with respect to the specific violation, EPA's test
results will be presumed to be correct in any enforcement
proceeding.
*21. Question: EPA's Phase II gasoline volatility regulations
issued in 1990 contained a 0.3 psi gasoline volatility
enforcement tolerance. Will EPA change this test tolerance in
light of its adoption of the Grabner test method?
Answer: In the preamble to the Phase II volatility
regulations, published on June 11, 1990, EPA stated that it will
take enforcement action only when it measures the RVP of the
gasoline at more than 0.3 psi RVP greater than the applicable
standard, provided that the responsible party measured the RVP at
or below the standard. EPA, however, reserves the right to
modify this policy if additional information indicates that a
lower enforcement tolerance is appropriate.
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*22 . Question: Assuming that the refinery laboratory's RVP
tests show the gasoline to be at or below the applicable
standard, can the next party in the distribution chain accept the
gasoline as long as its oversight testing does not indicate that
the gasoline is above the standard plus the enforcement
tolerance?
Answer: Yes. However, the parties in the distribution
chain should be aware that if EPA tests the gasoline to be above
the standard plus the tolerance, it will bring an enforcement
action against all parties presumed liable under the regulations.
23. Question: Given that a batch of gasoline is tested with
satisfactory results at a refinery and the product is shipped on
a fungible pipeline, does the gasoline require further testing
when transferred to another fungible pipeline? If the gasoline
is found to exceed the standard plus the test tolerance at the
transfer point between the two fungible pipelines, what is the
procedure for handling the product at that point?
Answer: To make its defense to a violation found at its
facility, each pipeline carrier must have an oversight program in
place, which generally will include periodic sampling and testing
at a minimum. If the gasoline is tested to be above the standard
plus the enforcement tolerance at the point of transfer between
two fungible pipelines, the company in control of the gasoline at
that point should take steps to ensure that the gasoline is not
distributed until or unless it can be blended to the proper RVP
level.
24. Question: When a fungible pipeline company receives a batch
of gasoline, are there any requirements on when the sample from
the batch should be tested? (e.g., mid-point of receipt, tank
test after receipt, other?) Are there any limitations on size of
the batch.
Answer: There are no requirements concerning when a sample
should be tested or limitations on the size of the batch for
purposes of oversight testing. Each company must determine what
steps are necessary for effective oversight, given the company's
particular operation.
25. Question: There is some confusion developing in the
marketplace concerning which other ASTM specification should be
associated with the Region 1 and Region 2 specifications? We
believe that the regulations alter only the RVP specification.
Therefore, the ASTM distillation and Vapor/Liquid Ratio
specifications for Class A, B, C, D and E gasoline are unchanged
because Region 1 and Region 2 RVP specifications only supersede
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the old ASTM RVP specifications for all classes. Some are
erroneously saying that the specifications that used to apply to
a 9 psi (ASTM Class A) should now apply to both Region 1 and
Region 2 gasoline. Can EPA make a statement that they are only
changing the RVP specification in order to eliminate this
confusion?
Answer: The ASTM distillation and Vapor/Liquid Ratio
specifications for Class A, B, C, D and E gasoline for at least
one of the Seasonal and Geographical Volatility Classes as
specified in ASTM Standard D 4814-88 are required under the
"Substantially-Similar" Rule [56 FR 5352] .
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G. SAMPLING METHODS
1. Question: What sampling procedures are authorized by EPA?
Answer: Generally, EPA restricts sampling procedures to one
of the procedures prescribed in the regulations. However, the
regulations provide that "alternative sampling procedures may be
used if a mutually satisfactory agreement has been reached by the
party[ies] involved and EPA and such agreement has been put in
writing and signed by authorized officials." 40 CFR Part 80,
Appendix D, §11.1. If the volatility sample collected by any of
the prescribed procedures is found to exceed the standard, then
the sample will be considered in violation.
2. Question: Does EPA have a sampling method preference?
Answer: At retail stations and wholesale purchaser-
consumer facilities, samples are taken from the pump nozzle using
the procedures specified in the regulations.
For large above-ground storage tanks, there are a number of
sampling methods specified in the regulations. The ideal method
for a given storage tank depends upon the conditions presented by
the tank configuration, level of product, and presence or
possibility of product stratification.
If the possibility of product stratification exists, "spot
samples," or "tap samples" using suitable taps, should be
collected from the "upper," "middle," and "lower" levels of the
tank contents. Also, where stratification is known to be a
problem, a "top sample" should be collected. This would assure
compliance for the top portion of a bottom-fed storage tank,
which is most likely to contain unmixed layers of left-over
"winter" gasoline. If the tank is documented to be well blended
and only one sample is to be used to represent the entire
contents, "all-levels" or "running" samples are equally
preferred. If all-levels or running samples cannot be obtained
due to the storage tank configuration or equipment problems, then
a middle sample, or a tap sample taken from a suitable tap
nearest to the middle of the tank contents, is an appropriate
substitute.
3. Question: What level does EPA prefer a sample be taken from
a tank equipped with operating mixers?
Answer: The possibility of stratification should be
assumed unless otherwise documented even on tanks equipped with
operating mixers. Therefore, upper, middle, and lower samples
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should be collected from tanks with mixers until documentation
exists showing that a sample taken from anywhere in the tank is
representative of the entire contents.
4. Question: Although continuous sampling is required for
pipelines, the regulations are vague on what a continuous sample
represents. One interpretation is that the sample should be
representative of the product flowing past the probe at the time
the sample is taken. Another interpretation is that the sample
is representative of the entire batch. Which interpretation is
correct?
Answer: Generally, EPA would consider a sample collected
continuously or intermittently during the entire time the batch
moved past the sampling probe to be representative of the entire
batch, as we do with a running sample of a tank.
5. Question: Does EPA intend to verify industry compliance with
proper sampling procedures as part of the volatility enforcement
program?
Answer: In general, EPA does not plan to verify sampling
procedures used by industry. However, in the context of an
investigation as to the cause of an apparent violation, it is
likely that EPA will evaluate the sampling procedures used to
determine the validity of the test results presented by the
alleged violator. Furthermore, during on-site inspections, if
EPA notes incorrect procedures used by industry personnel, then
it generally will inform industry personnel of such improper
procedures.
6. Question: Will EPA issue a report or test results from a
collected sample if no violation is found?
Answer: Yes, a copy of the field inspection report
including the results of any field screening tests will be left
with the person in charge (or designated) at the conclusion of
each facility inspection. The only exceptions would be instances
in which laboratory samples are collected for confirmation of
ethanol content (when required) or quality assurance of the field
screening process. The facility sampled may request the results
of any such laboratory tests.
*7. Question: Is EPA considering new sample size containers?
Answer: The volatility regulations as originally
promulgated required the use of a container size of no less than
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one quart. The final rule published on March 17, 1993, however,
allows the use of smaller containers (not less than 4 oz.) for
nozzle sampling. (For sampling tanks by the all-levels or running
sampling methods, containers of not less than one quart are still
required.) Consequently, although EPA continued to use the one
quart "Boston Round" glass containers for all samples during the
1993 volatility season, EPA is considering using 4 oz. containers
at the nozzle in the future.
8. Question: Is there an EPA approved video tape for sample
procedure training?
Answer: EPA is aware of industry generated training tapes
on RVP sampling. The Agency has no certification or approval
process for such materials.
*9. Question: Will EPA take multiple samples for analysis, do
duplicate analyses of samples, or take joint samples with
facility operators?
Answer: EPA plans generally to collect a single sample per
tank to screen for RVP compliance. Additional samples may be
collected where product stratification is suspected or for
laboratory analysis to assure the quality of the field screening
process. Facility operators may wish to take a duplicate sample
for their own purposes. If requested, the EPA inspectors will
provide assistance in obtaining such duplicate samples.
Field screening tests will consist of one test per sample
using the field Grabner vapor pressure apparatus. If the results
of the screening procedure indicate that noncompliance is a
possibility, more samples will be collected. For above ground
storage tanks, as many as six additional samples, consisting of
"upper," "middle," and "lower" samples for both field
confirmation and laboratory analysis, will be collected. At
retail outlets, two additional samples of a product will be taken
when field screening indicates the possibility of noncompliance:
one sample to confirm the field screening results, and one sample
for laboratory analysis.
Laboratory analysis will be conducted with the Grabner
instrument using the regulatory methodology contained in
Appendix E. Duplicate (actually replicate) analyses will be
performed in the laboratory on individual samples for quality
control purposes.
**10. Question: For sampling finished gasoline tanks, is it
suitable to pull a sample near the bottom of the tank, if it is
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documented that the contents have been thoroughly mixed/blended?
Answer: Yes, if a tank is mixed homogeneously, a "spot" or
"tap" sample from any portion of the tank will be acceptable to
EPA as being representative of the entire tank contents.
Documentation of the mixing process should include verification
that the process works and that the process was performed before
sampling.
**11. Question: Will EPA use alternative sampling methods where
it is known that a tank's gauge tube does not provide a
representative sample of the gasoline in the tank?
Answer: Yes, EPA will use alternative sampling points or
methods when it is determined that a tank's gauge tube contents
are unable to completely mix with the outside tank contents.
The objective of RVP sampling is to collect a representative
portion of the tank contents. When sampling from gauge tubes,
EPA inspectors first check for perforations that will ensure a
proper representation of the tank contents. If the gauge tube is
not perforated, or a facility representative provides evidence
that the gauge tube contents are not representative of the tank,
the inspector will seek an alternative sampling point or method.
In the following order, the alternative sampling points are:
other acceptable roof ports or gauge tubes located on the same
tank, taps located at or near the tank height, a tap located
along the pipeline feeding a loading rack, or a tank truck or
barge which has loaded from the tank.
**12. Question: Is an "in-line blending" sampling method
acceptable for defense purposes if adequate correlation to the
regulatory sampling methods is demonstrated?
Answer: An in-line blending sampling method would be
acceptable for defense purposes, assuming the party has data
showing that the samples obtained are representative of the
gasoline contained in the tank.
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H. INSPECTIONS
1. Question: Where will EPA focus its enforcement efforts; how
will EPA target particular facilities for inspection; and who
will conduct EPA sampling this summer?
Answer: EPA conducts inspections at all regulated
facilities; however, the main targets are refineries, terminals
and retail outlets. Inspections are conducted primarily by
authorized contractor personnel and EPA staff on a random basis.
EPA will pay particular attention to facilities in and around
areas with the 7.8 RVP standard to assure that product designed
to meet the 9.0 RVP standard is not delivered to the 7.8 RVP
areas.
2. Question: With what frequency does EPA anticipate sampling
pipeline carriers vs. pipeline terminals vs. retail stations?
Answer: EPA plans to inspect all types of facilities. The
main targets of EPA inspections, however, will be refineries,
terminals, and retail outlets.
3. Question: Will EPA conduct audits of upstream facilities,
including pipeline terminals? Will refineries be audited first?
Answer: The Agency concentrates on sampling and testing by
EPA and its contractors as the primary means of monitoring
compliance. Starting with the 1992 season, field inspections
included record reviews at terminals bordering 7.8 RVP areas to
ensure correct deliveries of product intended only for 9.0 RVP
areas. EPA supplements the field inspections with audits of any
regulated facility during investigations of noncompliance to
determine the full extent and source of violations.
4. Question: Will gasoline volatility enforcement criteria or
procedures be different in 7.8 psi standard areas vs. 9.0 psi
standard areas?
Answer: Enforcement criteria will be the same in all areas
of the country. However, as indicated above, field inspections
will include more thorough investigation at terminals within the
delivery range of 7.8 RVP areas to ensure correct deliveries of
product designed only for 9.0 RVP areas. EPA will use this
information to target downstream inspections if nonconformities
are found.
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5. Question: How are EPA inspections conducted?
Answer: The authorized EPA inspectors will clearly identify
themselves, present their appropriate credentials and state the
purpose and nature of the inspection before beginning their
procedure. Generally, one sample per storage tank of finished
product will be screened in the field for RVP compliance. If the
field screening test indicates a potential violation, a
laboratory sample will be collected and analyzed in accordance
with the regulatory procedure. When EPA inspects an upstream
party that supplies facilities in both 9.0 psi and 7.8 psi
standard areas, the inspectors will ask to see documents
indicating where the gasoline is being shipped and other evidence
indicating that the party has taken appropriate steps to ensure
that the gasoline will be shipped to the proper area. See
Section B, Question 5, for further discussion of this situation.
6. Question: What information can refiners and other regulated
parties provide to expedite inspections?
Answer: At the start of an inspection, a party can advise
EPA concerning applicable safety requirements for obtaining
samples from the storage tanks. It can also provide information
concerning the type of storage tanks in which the finished
product is stored (e.g., floating roof tank or fixed roof tank)
and the type of gauge tubes that are used (perforated or solid).
At the time of the inspection, a party should provide
documentation and other evidence indicating whether product is
blendstock or finished gasoline and the intended destination of
the gasoline (i.e., 7.8 psi or 9.0 psi area). To expedite
record reviews at terminals and refineries, records of sales or
other commercial documents should be available and separated by
products designed to meet the 7.8 and 9.0 RVP standards.
7. Question: How will EPA inspect unmanned terminals that are
entered with "keys" by various purchasers lifting products from
common storage?
Answer: EPA will coordinate with the terminal
owner/operator to gain access to the terminal and records
relating to product stored at the terminal.
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I. NOTIFICATION OF VIOLATIONS
1. Question: What procedure will EPA follow to notify companies
of violations; to resolve violations?
Answer: When a field test indicates gasoline may be in
violation of the applicable standard, EPA inspectors will
distribute to the facility an information sheet indicating that
they found a potential violation and the steps EPA recommends the
retailer take to mitigate the violation. EPA generally also will
inform other identifiable parties who have potential liability
when a field test indicates a potential violation. EPA
subsequently will issue a Notice of Violation to the
presumptively liable party(s) identifying the violation and
setting forth a proposed penalty amount. A party then may
present evidence to establish that the violation did not occur or
to support a defense as set forth in the regulations. If the
party is able to make such a showing, EPA generally will drop the
action. If it is not, EPA will attempt to negotiate a settlement
with the party. If negotiations for settlement fail, depending
on the nature and magnitude of the case, EPA will either initiate
an administrative action, which affords the liable party an
opportunity for a hearing before an administrative law judge, or
refer the case to the Department of Justice with a recommendation
that a complaint be filed in federal district court to recover
the statutory penalty.
2. Question: How quickly will EPA notify parties of violations?
Answer: EPA will contact parties as soon as possible after
the field test results indicate that a violation has occurred.
The Notice of Violation is usually issued within a few months of
the laboratory verification of the violation.
3. Question: Some companies' experience in the volatility
control program has been that no one in the distribution system
is notified by the Agency when compliance testing at the retail
level takes place. Consequently, opportunities to react promptly
to incidents of alleged noncompliance are lost. While they
recognize the Agency's right to conduct this testing, they
believe that it is EPA's responsibility (in order to provide the
most benefit to human health and the environment) to notify the
retail station management of a sampling event and allow them the
opportunity to obtain a split sample. EPA should comment on this
recommendation.
Answer: As indicated above, when a field test indicates a
potential violation, EPA inspectors will distribute an
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information sheet to the retail station indicating that they
found a potential violation and the steps EPA recommends the
retailer take to mitigate the violation. EPA also will inform
all identifiable parties who have potential liability as soon as
possible after a field test indicates a potential violation. EPA
will allow any retailer to obtain a split sample if the retailer
so desires. Official laboratory test results will be provided to
any regulated party as soon as available, if requested.
4. Question: What are the penalties for an RVP violation? Will
the amount of a penalty take into account the RVP level and
volume of product in violation?
Answer: The statutory penalty for violations of § 211 of
the Clean Air Act, under the authority of which the volatility
regulations are promulgated, is up to $25,000 per day per
violation and the amount of the economic benefit or savings
resulting from the violation. Under EPA's volatility penalty
policy, proposed penalties are based upon the economic benefit
from the violation and the gravity of the violation (derived from
the amount of RVP over the standard and volume of product in
violation), adjusted for prior violations and, in certain cases,
business size.
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J. REMEDIAL ACTION
*1. Question: What should a party do if it discovers product
having excess volatility during the course of an oversight
program? How may a party remedy such a violation? Can the high
volatility gasoline be transported or sold? Will EPA allow or
require reblending? Will EPA close the facility? Will EPA
initiate an enforcement action based upon the violation? Is the
party required to notify EPA? What if the product is already
downstream?
Answer: The company should promptly take steps to remedy
both the violation and the conditions which caused the violation.
The violation can be remedied in one of several ways, including
the following: a) reduce the volatility by blending lower
volatility product with the high volatility gasoline; b)
transport the gasoline to an area having a volatility standard
with which the gasoline complies; c) store the gasoline until the
compliance period ends; d) transport the gasoline to a refinery
or other facility. Transportation is appropriate only for the
purpose of correcting the high volatility; and storage is
appropriate only when high volatility gasoline was discovered
through an oversight program, the stored gasoline is sealed until
a time when the product can be distributed, and the gasoline is
clearly designated as product that is not intended to be sold,
supplied, dispensed, transported or distributed.
EPA has no authority to require any of these remedial
actions, or to close a facility. EPA will, however, exercise its
discretion and will not initiate an enforcement action on the
basis of high volatility gasoline discovered by a company,
providing the following conditions are met: a) the violation was
the result of an accident or a mistake (i.e., was not based on a
decision to sell, dispense, supply or transport high volatility
gasoline, or an action in disregard of the regulations); b) the
company completely corrected the violation (e.g., upon discovery
the company took all steps possible to assure the high volatility
gasoline which was on hand or which had already been distributed
downstream was immediately corrected); c) the company took
appropriate action to ensure future violations will not occur
(e.g., where a refiner discovers high volatility product caused
by a reseller's failure to comply with product handling
procedures contractually imposed by the refiner on the reseller,
the refiner took steps to compel compliance with the contract);
and d) the remedial actions are not the result of an EPA
inspection or investigation.
Any sale, supply, offering for sale or supply, dispensing,
or transport (other than transport only to correct a violation)
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would constitute continued additional violations of the
regulations. EPA is unwilling to grant a waiver to allow use of
high volatility product, except under the conditions set forth in
40 C.F.R § 80.27(e), which provides for an exemption of the RVP
standards for testing purposes. (See Section B, Question 12.)
2. Question: What should a company do if it is notified that
EPA has discovered a violation? Will any remedial action affect
the penalty?
Answer: The company should immediately take remedial
actions to correct the violation and the conditions which caused
the violation (as described in the previous question). Such
actions will be considered by EPA in mitigating any penalty
imposed because of the violation.
3. Question: What will the Agency's procedure be for allowing
(or not allowing) gasoline sales when high gasoline RVP is
indicated by the field test instrument.
Answer: In the event EPA inspectors inform a company that a
volatility field test shows gasoline has excess volatility, the
Agency views this as notice to the company of a possible
violation of the regulations. While the regulations do not give
EPA the authority to stop the sale of non-complying product, if
the EPA laboratory confirms the gasoline has excess volatility,
the company will be entitled to penalty mitigation only if
appropriate remedial action was taken as soon as the company was
told of the failed field test.
4. Question: What is the procedure to verify that a tank is
back in compliance once corrective action has been taken?
Answer: A determination of the RVP of the tank following
EPA sampling and testing methodology is recommended.
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K. STATE VOLATILITY PROGRAMS
1. Question: What is the effect of EPA's regulations on state
volatility regulations? Will EPA preempt state regulations?
Answer: EPA's regulations preempt state and local
volatility regulations unless one of the following exceptions
apply:
a. The state control is identical to the federal control.
b. The state regulation has been approved by EPA as a State
Implementation Plan (SIP) amendment which is necessary to achieve
a national ambient air quality standard.
c. The control was prescribed by a state which received a
section 209(b) waiver. (Only California has received such a
waiver.)
d. The state control is not done for the purpose of motor
vehicle emission control.
*2. Question: What is the current status of Colorado's request
for a change in the federal RVP standard from 7.8 psi to 9.0 psi?
What is the status of South Carolina's request for a similar
change in Cherokee County?
Answer: On April 30, 1993, EPA approved Colorado's request
for a change in the federal RVP standard from 7.8 psi to 9.0 psi
in ozone nonattainment areas in Colorado for the 1993 volatility
season (58 FR 26067). Colorado has also petitioned for a similar
change for the 1994 and 1995 volatility seasons. EPA is
currently reviewing this petition. On September 1, 1993, EPA
approved South Carolina's request for a change in the federal RVP
standard from 7.8 psi to 9.0 psi in Cherokee County (58 FR
46508).
3. Question: Will EPA delegate enforcement authority to the
states? Are states going to do any testing?
Answer: EPA cannot delegate its enforcement authority to
the states. In some instances, states with their own approved
volatility standards may inspect for violations of state RVP
standards and enforce them themselves. In some instances, state
or local agencies may act as authorized representatives of EPA
for the purpose of collecting samples or conducting
investigations.
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4. Question: Is it possible for states and the EPA to conduct
independent compliance testing at a given facility?
Answer: Yes.
5. Question: In states in which EPA has approved a SIP that
calls for more stringent RVP specifications than the federal
standard, will EPA relinquish enforcement of volatility controls
entirely to such states? If not, will EPA test facilities for
compliance with the federal RVP specification or the lower state
RVP level?
Answer: Beginning in the 1992 volatility control season,
the federal standards were changed to 9.0 psi, and 7.8 psi in
certain ozone nonattainment (or former nonattainment) areas,
making the federal standards generally the same or more stringent
than the approved state SIPs. However, both the federal and
state standards are enforceable where there is an overlap of
jurisdiction, such as in any state or area that has had final
approval of a SIP revision and in states having standards that
were promulgated for purposes other than motor vehicle emission
control. Therefore, where both state and federal standards are
in place, the regulated industry is required to comply with both
standards. EPA will test regulated facilities in such states and
will enforce the federal standard.
6. Question: To the extent that any aspect of an approved state
regulation is more stringent than the EPA rules, will the more
stringent portion of the state rules continue to apply?
Answer: Yes. For example, the federal standard is 9.0 psi
for all upstream parties in all states during the month of May.
Where a state SIP provides for a more stringent standard for May,
the state rule continues to apply.
7. Question: Several states have regulated gasoline to meet
ASTM specifications for several years for reasons not related to
motor vehicle emission control. In these states, will the EPA
rule preempt state ASTM specifications if the ASTM limit is more
restrictive?
Answer: The federal standard does not preempt the state
standard. However, even where an aspect of the state standard is
more stringent, EPA can enforce a violation of its less stringent
standard.
8. Question: Will states with unapproved SIPs, or pending SIP
requests for approval, be allowed to sample, test and enforce
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state RVP regulations?
Answer: States whose regulations are for the purpose of
emission control cannot enforce their regulations unless EPA
approves a SIP amendment by finding that the control is
"necessary to achieve" an ambient air quality standard or the
state standard is identical to the federal standard (or one of
the other preemption exceptions described in answer to Question I
above is satisfied).
*9. Question: Will states with approved SIP revisions be
enforcing their regulations using testing procedures that differ
from EPA's? If a state has an approved SIP that requires the use
of one of the two test methods contained in Appendix E of the
federal volatility regulations as originally promulgated, will
the state be required to change its rule to reflect the change in
the test method in Appendix E, published on March 17, 1993?
Answer: As discussed in the answer to Question 1, Section
F, the volatility regulations as originally promulgated included
two test methods, the manual tank and gauge method and the Herzog
method. As part of the SIP approval process, states were
required to use one of these approved methods of testing. The
final rule published on March 17, 1993, deleted these test
methods from Appendix E and replaced them with the Evacuated
Chamber Method (Method 3) as the method EPA will use for
enforcement. EPA, however, will not require these states to
promulgate changes to their regulations to conform to the change
in the test method in Appendix E. These states may want to
consider revising their regulations or enforcement policies to
provide for use of Method 3.
**10. Question: California's volatility regulations include a
different equation for the Grabner instrument than the one
published in the Federal Register on March 17, 1993. Which one
are refiners required to use in California?
Answer: The Federal RVP standard in California is 9.0 psi
except for ozone nonattainment areas, where the standard is 7.8
psi. California's regulations, however, provide for a 7.8 psi
standard throughout the state (through 1995). California's
control periods also vary from and are generally longer than the
Federal control period. EPA will be enforcing its standards
using the equation in Appendix E to the federal volatility
regulations, published in the Federal Register on March 17, 1993,
during the federal control period in all areas of the country,
including California. Refiners are required to use the test
methodology contained in Appendix E, or a different test method
if adequate correlation to the test methodology in Appendix E is
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demonstrated. Presumably, in those areas of California where the
federal standard is 9.0 psi, EPA will not find a violation of its
standard regardless of the equation used by refiners.
11. Question: Why does not the EPA develop a cooperative effort
with the state petroleum inspection programs? This would be an
effective method of enforcement that is already in place.
Answer: EPA is willing to work with the states to develop
state enforcement programs and to train state inspectors.
In past years, EPA has made an effort to coordinate its sampling
and testing program with state programs.
*12. Question: Is there a vehicle in the federal volatility
regulations that would allow EPA to control the state RVP
regulations such that the patchwork of state and city regulations
could be eliminated resulting in a consistent set of regulations
for contiguous states in a logistical region?
Answer: EPA evaluates the state volatility SIP requests
individually. The Agency's determination is based upon whether
the state regulation is "necessary to achieve" a national ambient
air quality standard. EPA is not able to use the SIP review
process to effect changes to the state regulations which do not
impact the "necessary to achieve" determination. Generally,
however, beginning in 1992, the federal standard has been as
stringent or more stringent than the state standard and regulated
parties are required the meet the federal standard.
13. Question: New Jersey allows for a testing tolerance while
several other northeastern states do not. Does EPA plan to
require consistency in the testing tolerance area in the states?
Answer: EPA will leave the issue of testing tolerance to
each state for state RVP rules.
14. Question: Do any regulatory variance measures exist in the
event new gasoline RVP regulations cause fuel shortages or severe
economic penalties in some states or areas, especially rural
locations?
Answer: The regulations do not provide for regulatory
variance measures. As discussed in Section B, Question 1, above,
the Clean Air Act Amendments of 1990 mandate an RVP standard of
9.0 psi, and allow EPA to impose a standard lower than 9.0 psi
only in ozone nonattainment and former nonattainment areas.
States, however, may request that EPA adjust their standard to
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respond to local issues, within the statutory limits
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