EPA-420-F-92-100
1992 VOLATILITY QUESTION AND ANSWER
DOCUMENT
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PREFACE
This 1992 edition of the Enforcement of Volatility Regulations -- Questions and
Answers lesponds 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 1990 edition of this document. Answers that
have been revised from the 1990 edition are indicated by an asterisk (*). New questions
and answers arc indicated by a double asterisk ('*). Questions and answers that no
longer apply due to statutory or regulatory changes have been deleted.
Several persons submitted questions regarding reformulated gasoline. As this
document pertains only to the enforcement of the volatility regulations, these questions
have not been included.
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.
Field Operatii _..rt
Washington, D.C.
May 1, 1992
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TABLE OF CONTENTS
A. LEAD TIME ISSUES 1
B. ESTABLISHING THE CLASSIFICATION OF PRODUCT AND
APPLICABLE RVP STANDARD ......... 3
C. CLASSIFICATION OF REGULATED PARTIES 3
D. LIABILITY OF REGULATED PARTIES 11
E. DEFENSES 15
F. TEST METHODS . 29
G. SAMPLING METHODS, 39
H. INSPECTIONS 43
I. NOTIFICATION OF VIOLATIONS 45
J. REMEDIAL ACTION 47
K. STATE VOLATILITY PROGRAMS ............... 49
ATTACHMENT ......................... 53
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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?
\nswen 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 will assume that the lowest
standard is applicable.
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 w.il 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 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
noncomplymg 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?
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Answer: The regulations provide a two-date system for the start of the volatility
control period. 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 me. is the applicable "VP standard. Thus,
r*»tan stations should receive at least a month's deliveries of complying fuel plus an
additional quantity of fuel with a lower volatility than was in its tanks initially. Should a
violation occur and a party is able to demonstrate a particular hardship, EPA will take
this into account in determining whether (and in what amount) to mitigate the-penalty.
In the rase of a terminal that has product exceeding the applicable RVP
standard, 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: P-an an upstream facility located in an ozone nonattainment area that
supplies gasoline to nonattainment areas store and dispense 9.0 psi RVP gasoline during
the month of May, without violating the volatility regulations?
Answer: The chart contained in the June 11, 1990 ("Phase II") (55 FR 23658)
rulemaking sets the RVP standard for all facilities in ail states at 9.0 psi for the month
of May. This is the standard for nonattainment as well as attainment areas. 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 ozone nonattainment (and
former nonattainment) areas that are supplying 7.8 psi areas and are within states
designated by the Phase II rulemaking to have a 7.8 psi standard in 1992, must have for
distribution gasoline that is in compliance with the 7.8 psi standard on June 1, 1992.
Moreover, upstream facilities supplying gasoline to 7.8 psi standard areas must take
steps to ensure that gasoline moving through the distribution chain prior to June 1, 1992,
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 6, for further
discussion of this situation.
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B. ESTABLISHING THE CLASSIFICATION OF PRODUCT AND
APPLICABLE RW 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?
Ajtsrer; Section 211(h)(1) of the Clean Air Act Amendments of 1990 (Act)
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 Jure 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 Act
now prohibits 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. Note, however,
that nonattainment areas located in states designated as 9.0 psi states in the Phase II
rulemaking will have a 9.0 psi standard.
"2. Question: Will EPA be publishing maps or other detailed listings that will
specifically identify the areas in which 7.8 psi RVP gasoline is required?
Answer: A list of the areas requiring 7.8 psi gasoline and those requiring 9.0 psi
gasoline has been prepared by EPA. A copy of this list is attached.
J. Question: The California Air Resources Board RVP rules allow a refinery to
designate a tank as "finished and ready for shipment" after the tank is certified by
laboratory tests. Only then is it considered finished gasoline and subject to RVP
regulations. Will EPA grant the same flexibility?
Answer: If, at a refinery or import facility, a tank blend is above the applicable
RVP limit and the refinery/import facility intends to re-blend it until it meets the
regulatory standard before introducing it into the distribution sys:em, the product should
be clearly designated as product not intended for shipment, and documentation should
support this classification. The product then would not be considered finished gasoline
that is subject to the regulations.
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4. 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 fujl sold in any State for use in motor vehicles
and motor vehicle engines, and commonly or commercially known or sold as gasoline")
EPA mil treat it as finished gasoline subject to the volatility regulations. However, as a
matter of enforcement policy, EPA mil 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
¦father blended before being sola, 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 fijrther
blended to comply with the applicable RVP standard before being sold, supplied, or
transported as finished product.
5. 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 tha: 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 ih+ nroduct which clearly state the intended use of the
product, as well as any other evidence showing the status or intended use of the product.
•6. Question: How on a party establish the place the gasoline is to be sold for
purposes of determining the applicable RVP standard? If a terminal located in an
ozone nonattainmcnt area requiring 7.8 psi gasoline maintains inventories of both 7.8 psi
gasoline and 9.0 psi gasoline (for distribution to locations outside the nonattainment
area), wbat documentation pertaining to gasoline volatility is the terminal operator
required to maintain? What documentation is required by a pipeline terminal located in
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a nonattainraent area which sells only 9.0 psi gasoline designated for attainment 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
possibility of two RVP grades of gasoline beii.g available at the terminal suffice? Must
the loading arms at the truckloading rack be marked to indicate RVP? How can
parties protect themselves? Where 110 indication exists regarding intended destination ,
how will EPA determine the applicable RVP standard?
Answer EPA does 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
commercial documents, such as shipping documents and contracts of sale, 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 the party, in the normal course of his
business, does not have the addresses of the retail facilities that ultimately will be
dispensing the gasoline to motor vehicles, it should take reasonable steps to ensure that
the gasoline will be shipped to the proper area. For example, commercial documents,
such as invoices, bills of lading, etc., should clearly indicate that the gasoline contains 9.0
psi gasoline, not intended for sale in 7.8 psi designated areas. In some cases, labeling
the gasoline at the rack may be appropriate. EPA inspectors will ask to review the
refiner or terminal operator's documents and any other methods the party employs to
ensure delivery to the proper area. In addition, EPA inspectors may ask for a list of the
terminal's distributors that will be delivering gasoline to 7.8 psi areas for possible follow-
up inspections. In the absence of any indication concerning intended destination,EPA
will assume that a terminal located in or near a 7.8 psi area will be supplying outlets in
7.8 psi areas and will apply that standard.
If a violation is found downstream and a refiner or terminal is presumed liable
for the violation, as part of its defense, the party may provide (along with evidence of
any other methods the party employs to ensure delivery to the proper area)
documentation showing that the gasoline was shipped to the proper area and that the
shipping documents accompanying the gasoline clearly indicated that the gasoline was -
9.0 psi and not intended for sale in areas having a 7.8 psi standard. If, during a follow-
up inspection of a distributor facility, EPA determines that the distributor delivered 9.0
psi gasoline to a 7.8 psi area, the distributor may be deemed liable for the violation.
*•7. Question: Given that a refinery does not offer gasoline for sale at its location and
sMps 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.
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In such case, the refiner must fulfill the criteria outlined in the answer to question 4
above.
•8. Question; What type of labeling of products will be required? Must a party
physically label tankage, or will it be sufficient that records dearly indicate the RVP
Ieve« md whether the gpsoline is intent : J 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 should be sufficient.
However, a party may wish to label its tanks to further protect itself.
9. 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 facility still be
eligible for the special provision for alcohol blends at 40 CFR § 80.27(d)(1) of the
regulations?
Answer; la order to be eligible for the special provision at 40 CFR § 80.27(d)(1),
which provides for an additional one poind 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 re-iail outlet.
~10. Question: Must the label required at 40 CFR § 80.27(d)(3)(i) state the precise
percentage concentration of ethanol?
Answer; The pimp labeling requirement for ethanol blends has been deleted
from the volatility regulations by the final rulemaking published on December 12, 1991.
*11. Question: Will Phase II of the volatility regulations* to be implemented in 1992,
continue to permit a one pound RVP allowance for ethanol blends?
Answer: Yes, However, in accordance with the Clean Air Act Amendments of
1990, the final rule published on December 12, 1991, provides that, to qualify for the
one psi allowance, gasoline must contain denatured, anhydrous ethjnol The
concentration of ethanol, excluding the required denaturing agent, m. st be at least 9%
and no more than 10% (by volume) of the gasoline. S££ 40 C.F.R. § 80.27(d)(2).
**12. Question: Are gasoline volatility rules regarding the EVP of gasoline ethanol
blends similar in ozone attainment and nonattainment areas?
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Answer: The volatility rule providing for a one psi allowance for ethanol blends
applies to qualifying gasoline in both ozone attainment and nonattainment areas.
*13. 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
exceed the standard, what provisions will EPA extend for such testing? Would the
Agency relax these reporting requirements for the production, storage, shipping and use
of test fuels with high RVPs in amounts less than ten thousand gallons?
Answer The Notice of Proposed Rulemaking published on October 18, 1991,
proposed an exemption from the RVP standards for fuels used for testing purposes.
Although the rule has not been finalized, as a matter of enforcement policy, EPA will
exercise its discretion to not enforce violations of the volatility standards in the case of
high RVP gasoline blended for the purpose of conducting tests on vehicles, provided the
party provides written notification to EPA in advance, which includes information
concerning the nature and purpose of the tests and the fuel (e.g., supplier, RVP level,
amount), and provided that EPA determines that the test program has a valid purpose
and will have no significant adverse impact on the environment. If the gasoline is to be
used in an ozone nonattainment area, the party should justify why the test cannot be
performed in an ozone attainment area.
The Agency does not plan to further relax its enforcement discretion nor the
above notification requirements for test fuels produced in small volumes.
14. 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 defences.
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 Lnder the
regulations.
3. Questions 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 cthanol 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 raffinale as a fuel component. In
the event of an RVP violation detected 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 raffmate as a fuel component thus could not be
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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 Jownstream.
5, Question: Often, fuel terminals offering ethanol and gasoline for blending are
automated or otherwise unsupervised, J'owing a truck driver to create a load of Ke;ided
fuel without direct supervision from the component supplier. Hie 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 foci 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 mi "ethanol blender" as any person who owns, leases, operates, controls, or
supervises mi ethanol blending plant. In the situation described, EPA would consider
the track as the ethanol blending plant. The company that owned and/or operated the
track 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
5 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 he 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 deemed to be in violation, in addition to the ethanol blender. 40 CFR §
80.28(d)(1). Hie 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 f^r presumptive liability on th-3 part of both
parties tc the exchange, one party as the "bi unded" 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?
Answers 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 refine removes the high volatility product from distribution, how can the
refiner show that it has 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).
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Hie 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
refiner's branded facility 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, where 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 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?
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Answer: Each party who is liable for a violation, and who is unable to establish a
defense, is liable for a separate penalty.
•ML Question: If a finished product tank at ^ refinery is analyzed by the refiner using a
regulatory-approved method 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 As discussed in Section F, question 20, below, EPA applies an
enforcement tolerance of 03 psi to compensate for testing variances that occur with
RVP measurements when bringing an enforcement action for an RVP violation. If, as
in this scenario, the average of the refiner's test results is at or below the standard, EPA
is not likely to test the product above the standard plus the enforcement tolerance and
bring an enforcement action. If, however, EPA tests the gasoline to be more than 0.3
psi above the standard, it may bring an enforcement action. Therefore, this case, it
would seem prudent to conduct additional testing on this product.
••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 nonattainment 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 a nonattainment area
having a 7.8 psi standard, the 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-controlled gasoline (with
the intent of satisfying attainment and nonattainment markets appropriately), what
liability, if any is incurred if a jobber knowingly buys 9.0 psi gasoline and supplies it to a
nonattainment area retail station?
Answer. If a jobber supplies 9.0 psi gasoline to a retail outlet in a 7.8 psi area,
the terminal will be presumed liable for the violation. However, the terminal may rebut
the presumption of liability by meeting the elements of its defense, which, in this
scenario, would include a showing that it made reasonable efforts to ensure that the
gasoline would not be sold in a 7.8 psi area, such as clearly marking the gasoline and
commercial documents as 9.0 psi gasoline not to be sold in 7.8 psi areas.
*•13, Question: To what extent will a gasoline supplier be liable for the blending of
gasohol (in meeting tbe ethanol concentration requirement) by a secondary bulk
terminal which sells to jobbers under (1) the original supplier's brand (2) other brand?
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Answer: In this scenario, the terminal would be the ethanol blender. If the
terminal sells the ethanol blend under the original refiner's brand, the refiner would be
presumptively liable for violations found downstream. Where the terminal sells the
product under another name, under the current regulations, the refiner would not be
presumptively liable unless the violation is found at a retail outlet bearing the refiner's
brand. The refiner, however, may be able to meet part of its defense by showing that
the -. 'olation was caused by the ethanol blender who failed 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 scenailo, should the carrier and/or retailer be
found to have supplied a product that did not meet RVP compliance standards, it
appeals that they, as well as the distribution facility (and perhaps others), would be held
presumptively liable. Do the regulations provide the terminal's owner /operator with the
opportunity to remove themselves 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 requii ?ment for
the product loaded at the terminal?
Answer: If the truck driver dispenses ethanol and gasoline into the truck
compartmeat in amounts determined by the driver, the tracker would be liable as the
ethanol blender. Consequently, the terminal would not be required to meet the 10%
ethanol by volume requirements of the product loaded at 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, particularly if the violation involves a high RVP level, rather than an improper
amount of ethanol.
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E. DEFENSES
•I. 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 evidence that m0y 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 geographical areas . If these products become commingled after
leaving the refinery, the product intended for the lower volatility area or time period
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 Uiu^ a 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 after
the compliance date for upstream parties complied with the applicable standard;
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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, an<5 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 manufacturer
supplying (1) branded jobbers selling under that manufacturer'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
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 a geographic region 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
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sampling and testing that the gasoline determined to be in violation was in compliance
with the applicable standard when transported from the refiner)'. 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 propram to include periodic sampling and testing.
TTie 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 field violation? If RVP levelf were to exceed EPA standard, what
enforcement consideration would EPA ex' ^nd to refiners who acted in good faith and
can produce source records demonstrating that original 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, ethanol blender, or carrier facilities) 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
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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 acceptab1" RVP oversight program where cthanol is
blcnued into trucks? Since the fuel in the truck may be stratified immediately after
"blending" an the track 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 E-2. 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 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 track'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 arc 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 eacb 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 couid have a valid oversight program without actually
testing the product themselves. For example, they could arrange with the owner of the
prod act 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.
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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,
•*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 tie 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 ail 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 an ount of confidence the pipeline has in the company
supplying the gasoline.
i. Question: Did EPA anticipate that some pipelines would require RVP to be 0.5 psi
below the standard? Why can a common carrier set a lower standard than EPA?
Answer: EPA anticipated that regulated parties would take action to assure
product they sell, dispense or transport complies with the volatility standard. EPA has
not anticipated the particular levels which would be used. Pipelines and other
businesses are free to establish whatever criteria they choose as part of the operation of
their business as long as the criteria established does not require noncompliance with
the federal standard. EPA assumes that such lower standards have been set in order to
assure that product sampled by EPA is not found to be in violation, and are thus a
prudent effort by the pipelines to comply with the standards in light of EPA's statements
that regulated parties must take test variability into account in producing and marketing
their product.
9. 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 §
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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 fo-th 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 which 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 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 marketeo in geographical ?reas
or time periods having lower RVP requirements, and to assure that gasoline is not
shipped to such areas or time periods having lower RVP requirements. 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 actk . 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 Ls 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.
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••10. Question; While the current combination of pipeline specifications and refinery
blending tolerances approximate the 0,5 psi refiner defense in the October 18, 1991
Notice of Proposed Rulemaking, we wonder why, when the lest accuracy of the RVP
test is plus or minus 03 psi, such a large margin is required for our defense. Assuming
we have a reasonable quality control program in place, why is the defense basis not 0.3
psi? Assuming the enforcement tolerance of 0.3 psi, why does the defense basis have to
be more than 0.1 psi?
Answer: Refiners (and importers) are not required to have test results that are
0.5 psi below the standard to make their defense to a presumption of liability for
violations found downstream. The 05 psi enforcement policy contained in the preamble
to the October 18, 1991 proposed rulemaking simply allows a refiner or importer to
satisfy the test requirement of its defense by providing a test result that is 0.5 psi or
more below the standard, provided that the violation is not more than 0.5 psi above the
standard, and there is no reason to believe the party's test result is invalid. For
example, if EPA brings an enforcement action for a violation downstream of the refiner
or importer based on a test result that is not more than 9,5 psi in an area with a 9.0 psi
standard, the party will be deemed to have fulfilled the test requirement of its defense if
it has a test result that is 8.5 psi or below (provided there is no reason to believe that
the party's test result is invalid). However, in the absence of such a test result, the
party, nevertheless, may satisfy the test element of its defense by presenting other test
results showing that the gasoline met the applicable standard. Whether such test results
will satisfy the test requirement of the defense will be determined on a case by case
basis. In evaluating a party's test evidence, the Agency will consider the quality of the
party's testing program, such as whether multiple samples were tested and whether the
party's laboratory ran correlation tests with EPA's or another laboratory.
Note, however, if EPA's test results indicate that the gasoline is more than 0.5 psi
above the standard, the refiner or importer will not be deemed to have fulfilled the test
requirement of its defense based solely on a test result showing that the gasoline was 0.5
psi or more below the standard. However, even in this situation, it may be possible for
the party to fulfill the test requirement based on the totality of its testing evidence and
the quality of its testing program. The 0.5 psi enforcement policy, therefore, merely
provides one way in which a refiner or importer, under certain circumstances, may
satisfy the test requirement of its defense.
11. Question: When 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 gasoline to violate the standard. 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.
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•12. 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 r.-quire 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 thai the gasoline was in compliance when delivered to
die next party downstream, and records relating to oversight testing programs.
Hie 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), the most stringent RVP
standard will be assumed. Having such documentation readily available to EPA
inspectors will facilitate this determination.
•13. Question: How long must regulate J 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 JBPA'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.
14. Question: Can a party rely on tests done by another party or b, 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.,
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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 accordance with the regulatory requirements, and that sampling methods and
frequency are adequate.
15, 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 In order 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 samplii.^
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.
16. 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
througn a pipeline u*ed 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 product complies with the
applicable RVP standard when it leaves the party's facility.
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••17. 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 iefense 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.
Hie 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 behaJ of the party alleged to be in violation, which
includes periodic sampling and testing of the gasoline or monitoring tbe 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 thai the facts stated
in the certification are inaccurate. In the case of a violation alleged against 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,
•18, 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: Hie 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
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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 b?*ed upon
insufficient or excessive ethanol content, it w'll be very difficult for the blender to
establish a defense. Where the violation is fjund downstream from the blender's
facility, the evidence described above will be considered.
*15, 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 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 certification defense against
violations involving ethanol blends.
*20. Question: 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; and 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: Under the current regulations, to establish a defense, 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 which represent that the gasoline in question
conformed to the standard. This defense element was ruled invalid as applied to
earners by the U.S. Court of Appeals for the District of Columbia Circuit in National
TankTruck Carriers v. EPA (902 F.2d 177 (D.C. Cir. 1990). Accordingly, the proposed
rule published on October 18, 1991, deletes this defense element for carriers, and also
for distributors and ethanol blenders. Although the rule has not been finalized, EPA
will not require this defense element in light of the Court's ruling.
"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
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as blendstocL 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
blendstocL
21. Question: If a motor gasoline cargo Is transported in more than one compartment,
what are the test requirements to demonstrate compliance for the foil 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
track), the oversight prop-am 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
ail 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 tu add only ethanol,
then only tbe 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
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of 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 be^re it leaves the
refinery, and since, in the above scenario, th<" 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 chapter.
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 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).
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**26. Question: What is required for an adequate defense where off-spec product is
delivered by a third party on exchange?
Answer: The elements required for a defense to a violation incurred because off-
spec (i.e., non-complying) product was delivered by a third party on exchange would
depend on the partioilar party and situation involved. For example, refiners are
presumed liable (and the appropriate refiner defenses apply) for violations found at
their branded retail stations and branded distributor and ethanol blender facilities,
whether or not the gasoline was obtained through an exchange agreement. Refiners
who supply gasoline to unbranded distributor and ethanol blender facilities are also
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 non-complying product.
**26. 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 nonattainment
area (requiring 7.8 psi gasoline)? If the terminal operator indicates on the bill-of-laJing
(or other appropriate shipping document) that the gasoline is not to be marketed in
nonattainment areas, would this create a defense? If not, what more would be required
of the terminal operator?
Answer: If a violation is found downstream from the terminal and the terminal is
presumed liable for the violation, EPA will look to shipping and other commercial
documents, and any other evidence, indicating that the terminal took reasonable steps to
alert the carrier that the gasoline had 9.0 psi RVP and should not be delivered to a 7.8
psi area. Other evidence might include identification of the gasoline at the loading
racks. Obviously, the greater the effort the terminal makes to ensure that higher RVP
gasoline is not delivered to a 7.8 psi area, the easier it will be to defend against a
presumption of liability. Evidence of efforts to supply gasoline to the appropriate area
will be evaluated on a case by case basis.
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F. TEST METHODS
•I. 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 fc (1) shipment out of a refinery, (2) receipt
and sale from a remote terminal? When will EPA publish this information? Is a
Grabner Instrument Model CCA-VPS, or a similar instrument, acceptable for use in
refinery testing of finished gasoline blends? (i.e, has EPA expanded the allowable test
methods for enforcement purposes?) Has the "referee" test procedure been
established? Is it identified as an ASTM procedure?
Answer: The current regulations prescribe two methods for purposes of testing
compliance with the applicable RVP standard: the manual tank and gauge method and
the Herzog method. Refiners and importers are 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. However, since the Herzog
method includes both an analog and a digital version, refiners and importers may use
cither version for compliance testing.
On October 18, 1991, EPA published a Notice of Proposed Rulemaking (NPRM),
which proposes to allow refiners and importers to use test methods other than those
contained in the volatility regulations for defense testing if adequate correlation to the
EPA approved methodology is demonstrated. Although, until this proposed rule is
finalized the existing regulations require refiners and importers to use one of the
methods in the regulations for defense testing, EPA will exercise its enforcement
discretion to accept refiner and importer test results obtained using the Grabner
instrument, or other test methodologies, if adequate correlation to the digital Herzog is
demonstrated. The adequacy of such an alternative method will be weighted based on
the validity and results of such correlation data.
Under the current regulations, oversight programs may be conducted using one
of the approved methods, as well as any other method, provided that adequate
correlation to the digital Herzog is demonstrated.
•2. Question: Will EPA adopt the ASTM methodology for the mini RVP methods and
therefore make it acceptable for EPA measurements? What is EPA's position on the
Grabner RVP analyzer, the Herzog Mini Reid Vapor Pressure Apparatus, and ASTM D
323? It is our understanding that, although EPA field personnel use Grabner devices to
monitor RVP, in cases of dispute, the Agency defers to one of the ASTM methods. Do
the proposed modifications to the regulations contain any provisions which address this
issue?
Answer: As indicated above, at this time, EPA has not approved the use of the
Grabner RVP analyzer, nor has it approved the Herzog Mini Method or ASTM D 323.
try
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In the NPRM published on October 18, 1991, EPA proposed several testing options,
including adding the Grabner to the existing methodologies in Appendix E, deleting the
current methodologies and replacing them with the Grabner, and making no change to
Appendix E. The NPRM stated that EPA prefers the Grabner test method for
enforcement purposes. The Grabner test methodology proposed in the NPRM is similar
to the ASTM methodology. As indicated above, however, until this proposed rale is
final^ed, the methodologies in existing Appendix E remain the officially approved
methods.
3. Question: Is the ASTM D 323 method the same as the Dry RVP measurement
method utilizing tank and gauges that is described in the regulations?
Answer; There appears to be much confusion in the industry as to whether
ASTM D 323 is the same as the Dry RVP measurement method utilizing tank and
gauges that is described in the regulations as an approved method. ASTM D 323 and
the Dry manual method are not interchangeable as approved methods, unless
modifications are made to the ASTM D 323 equipment and the respective procedures in
order to enable it to have the same specifications as the approved method. Such
modifications are described in ASTM D 4953.
4. Question: Which testing method does EPA utilize to determine compliance with the
applicable RVP standard?
Answer. EPA utilizes the digital Ilsrzog ethod, as described in Appendix E of
the regulations, for testing of samples to determine compliance with the applicable RVP.
•8, 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 Arm 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 for inspections during the 1992 volatility control season. However, if an
apparent violation is found, the sample will be sent to the Arm Arbor laboratory for
testing using the digital Herzog method.
The Grabner method has provided excellent correlation to the Herzog
semi-automatic digital method. The Grabner apparatus is a fully automatic, portable
analyzer utilizing a 4 to 1 vapor to liquid ratio chamber with pressure measurement
available at 100 F. It is similar to other RVP mini methods. EPA uses an expedited
field screening method that introduces the field sample directly to the Grabner
instrument without any sample preparation.
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••4 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?
Answer; The results obtained by the laboratory in Ann Arbor will be used as the
basis for determining noncompliance.
••7, Question: We understand that EPA uses a calculation other than ASTM in their
Grabner analyzers. Is this true? If so, is EPA's calculation high or low compared to
ASTM? What is the calculation so that we can measure ourselves against it? Will EPA
publish the formula which it uses in the Grabner instrument? Does EPA plan to use a
different formula in 1992? If EPA proposes to change formulas, would it be before the
start of the compliance period? If changed in mid-season (assuming the new formula
results in a lower equivalent RVP), how would enforcement proceed for products
already in the market tested using the old formula? Which factor will be specified for
the Setavap (as well as Grabner) RVP methodology?
Answer: As indicated above, EPA currently uses the Grabner test method as a
screening device only. If the Grabner field test indicates an apparent violation, the
sample will be sent to the EPA laboratory in Ann Arbor for testing using the digital
Herzog method. Therefore, no correlation equation relating to the Grabner field test
method to RVP is currently used by EPA. The rule resulting from the October 18, 1991
NPRM, which has not been finalized, will address the issue of correlation equations
further.
8, 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, that will be available to the public, of correlation
with a laboratory.
f. Question: Can a company who 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, for purposes of oversight testing, another method that is supported by
appropriate correlation data.
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li. 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 Herzog
method as published in the EPA regulations. In order to protect the distributor/carrier,
must the third party iab prove correlation with the EPA lab? Will third party lab tr
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. 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 in an oversight program. A third party lab is not liable for RVP
violations under the regulations.
11. Question: Can a dead weight tester be used in place of a mercury manometer for
calibrating the Bourdon pressure gauge?
Answer: Although the regulations only provide details regarding the use of the
mercury manometer for calibration of the pressure gauge, EPA does not intend to
preclude the use of other calibration methods, such as the dead weight tester. As such,
a dead weight tester, with a suitable range (0-15 psi) and accuracy ( + /- 0,05 psi), is an
acceptable calibration methodology if used in a manner consistent with good engineering
practice. EPA will use its enforcement discretion to allow use of other methods that
provide equal or better results than the mercury manometer.
12. Question! To what decimal place must test results be reported for the Herzog
digital method?
Answer: The regulations require that test results be reported to the nearest 0.05
psi for the Herzog analog method and the Dry manual method. For the Herzog digital
method, two decimal places must be reported.
•13. Question Is the acetone wash of the bomb in the dry manual method required?
Is this an environmentally unsound method for washing these instruments? Can a more
compatible wash solvent be used?
Answer: This issue will be addressed in the final rule resulting from the October
18, 1991 NTPRM.
•14. Question: What ASTM distillation specifications apply to specific RVP limits?
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Answer: EPA does not have a requirement regarding what distillation
specification should be used for specific RVP limits.
15. C'JeslIen: What are the maximum number of samples a party can send to the EPA
lab for testing in order to assure the accuracy and repeatability of the respective test
results?
Answer: EPA will accept up to three samples on a bi-weekly basis from any party
as long as the samples are accompanied by the following: lab test results, description of
the method of analysis, and name of a contact person that will receive the test results.
Other and more extensive correlation programs can be arranged by writing:
Carl. Scarboro
US Environmental Protection Agency
2565 Plymouth Road
Ann Arbor, MI 48105
16, Question: Can refineries participate in correlation programs with EPA if they are
using methods other than the prescribed methods?
Answer. Yes. However, this does not relieve parties of their obligation to use
approved test methods when required to uo so by the regulations.
*17, 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.
18. 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 par*" 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
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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 kno. n RVP. Absent uny 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.
If. Question: Has EPA's testing experience demonstrated any differences in RVP test
results using the different regulatory approved methods?
Answer: EPA test results, along with some industry data, indicate that the
Herzog semi-automatic digital method generally yields RVP results which are higher
than the manual tank and gauge method when testing the same product. This difference
is probably due to differences in the volume and location of the pressure measurement
devices.
••2®. Question: EPA's final (phase II) gasoline volatility regulations issued in 1990
contained a 0.3 psi gasoline volatility enforcement tolerance. Regarding the.
enforcement of 9.0 and 7,8 RVP volatility values, will the 03 psi enforcement tolerance
continue to apply? Will EPA extend any enforcement latitude to recognize the fact that
some testing inaccuracies and variances invariably occur with gasoline RVP
measurements? Will EPA accept the +/-0.3 psi tolerance in enforcement actions?
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 03 psi RVP greater than the applicable standard,
provided that the responsible party measured the RVP at or below the standard. For
example, if EPA measures a sample of gasoline 9.3 psi or less in an area with a 9.0 psi
standard, it will not bring an enforcement action for the violation, provided that the
responsible party measured the gasoline's RVP at or below 9.0 psi, (See also answer to
question 21, below.) If, however, EPA measures the gasoline above 93 psi, it may bring
an enforcement action At this time, EPA is not changing this enforcement tolerance
policy. EPA believes that this tolerance level adequately compensates for testing
variances that occur with RVP measurements. However, EPA reserves the right to
modify the policy if additional information indicates that a change is appropriate.
**21. Question: It is our understanding that the 03 psi enforcement tolerance was
based upon the accuracy of the RVP test itself. Therefore, as long as our refinery
laboratory's RVP test shows the gasoline to be in compliance, it is in compliance as long
as the next party in the distribution chain retests the gasoline and finds its RVP to be
less than 0.3 psi above the standard. However, EPA has stated that a carrier should
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not accept gasoline where the refinery tested the gasoline at or below the standard but
the carrier's (or other party's) oversight testing shows the RVP to be above the standard
(even if less than 03 psl above the standard). How does one determine which lest is
accurate? At what point can the 03 psi test tolerance be applied? Which parties on
use the tolerance?
Answer, If a carrier tests the gasoline to be above the applicable standard but
within the 03 psi enforcement tolerance, it need not reject the gasoline provided that
the average of all test results indicates that the gasoline meets the standard (in this case,
where the carrier's test data averaged with the refiner's test data indicates that the
gasoline is at or below the standard), and each individual test result (refiner or carrier)
does not exceed the applicable standard plus the enforcement tolerance of 03 psi. II,
for example, a earner tests the gasoline to be above 9,0 psi in a 9.0 psi standard area
(but within the 03 psi tolerance), the carrier should determine whether the average of
its test result(s) and the refiner's test resuli(s) is above or below 9.0 psi. The carrier
should accept the gasoline only if the average is 9.0 psi or below. Hie more the
refiner's test data indicate confidence of the mean RVP not exceeding the standard,
therefore, the less likely it is that a carrier's test result, when averaged with the refiner's
test result(s), will produce an average that is above the standard. Note, however, that
the refiner test results to which we refer do not include the test data obtained during the
in-line blending process.
••22. Question: How will EPA allow for the variance at the next level of distribution?
Specifically, if a refiner's test is 0.2 psi below the standard and a carrier tests at 0.1 psi
above the standard, and subsequently a terminal tests at 0.1 psi or 0.2 psi above the
standard, will the testing variance still be allowed?
Answer: A terminal need not reject the gasoline if the average of the terminal's
test results, and any test results obtained by the pipeline (or other carrier supplying the
terminal) immediately prior to shipping the gasoline to the terminal, is at or below the
applicable standard, provided that each individual test results does not exceed the
applicable standard plus the enforcement tolerance of 0.3 psi.
••23. Question: Given that a refiner has a batch of gasoline in one tank, there exists
the possibility of two or more fungible pipeline companies receiving product from this
common tank.
a. Which pipeline company's RVP measurement is averaged with the refiner's
tests to determine compliance?
b. Which party is responsible for collecting the RVP measures and maintaining
the historical file on the measurements?
c. What occurs if the refiner and one pipeline company test the tank with
acceptable results but the second pipeline company finds the RVP in excess of the
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standard? Is it a requirement to notify all parties Involved in the testing of the tank of
the high result?
Answer: Regarding question "a", each pipeline company is required, at a
minimum, to conduct oversight testing of the gasoline. If any pipeline tests the gasoline
above the standard (but within the tolerance), it should determine whether the average
of its test result(s) and the refiner's test result(s) is at or below the applicable standard
and whether any test is above the standard plus the 0.3 psi enforcement tolerance.
Regarding question "b", refiners are required to produce test results showing that-
the gasoline was in compliance when it left the refinery (or delivered to the next party in
the distribution chain, depending on the downstream facility) to make their defense to a
presumption of liability. Therefore, refiners will want to retain records of these tests for
defense purposes. Similarly, a pipeline is required to provide evidence of an oversight
program, which would include its test data, to make a defense to violations found at its
facility. If a carrier tests the gasoline to be above the standard (but within the 0.3 psi
tolerance), and the average of the refiner's and carrier's test data is within the standard
and no test is above the standard plus the 0.3 psi enforcement tolerance, presumably,
the carrier will want to retain the file on the measurements in the event EPA also tests
the gasoline above the standard.
Regarding question "c", if the refiner and one pipeline test the gasoline with
acceptable results and a second pipeline finds the RVP in excess of the standard, it
would seem prudent for the party(ics) to do additional testing. Although the volatility
regulations do not require a party to notify another party of its testing results, a refiner
in this scenario may wish to notify the second pipeline of the high RVP results so that it
on do additional testing.
••24. 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
farther 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 lumnnum. If the gasoline is tested to be above the standard
plus the 03 psi 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, II the gasoline is tested to be above the standard, but not above the
standard plus the enforcement tolerance, the company should determine whether the
average of its test result(s) and any test result(s) obtained immediately prior to delivery
by the pipeline that transferred the gasoline is above the standard, and/or whether any
single test result exceeded the standard plus the tolerance. If so, the carrier should not
distribute the gasoline until or unless it can be blended to the proper RVP level.
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**25. 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, o'her?) 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.
••26. Question: In many cases, a refinery batch passes through several other systems,
pipelines and/or tankage, before entering a pipeline. We understand that only refiner
and pipeline results are used to establish the average RVP. Entities downstream may
establish oversight programs but those results do not become part of the average. Does
EPA concur?
Answer Each party in the distribution chain is responsible for the gasoline that it
distributes to the next party in the chain. A party is required to have an oversight
program in place to defend against a presumption of liability. If any party tests gasoline
to be above the standard, it should not distribute the gasoline unless the average of its
test result(s) and any test result(s) obtained by the party from which the gasoline was
received, conducted immediately prior to delivery, indicate that the gasoline is at or
below the standard, and that no single test exceeds the standard plus the enforcement
tolerance.
••27. Question: For fungible batches where product is received from a number of
shippers at a number of locations, what test results are to be used - every test from
every shipper?
Answer: As indicated above, if a party tests the gasoline to be above the
standard (but not above the standard plus the enforcement tolerance), it should
determine whether the party from which the product was received conducted any tests
on the product prior to delivery. If so, the party should determine whether the average
of all the tests indicates that the gasoline meets the standard (and no single test is above
the standard plus the enforcement tolerance). If the other party does not have test
results on the gasoline, the party should determine whether the average of its test results
indicate that the gasoline meets the standard. Where soline from various shippers is
commingled before the party receives it, and the gasoline from any particular shipper
cannot be tested independently, the party may average the test result(s) of the
commingled product with test result(s) obtained by the various shippers to determined
compliance.
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••28. Question: If a refinery ships a large batch of gasoline to a remote terminal and
the batch is split into two or more tanks, how will the RVP averaging with the pipeline
company work in this case?
Answer: Each party in the distribution chain is responsible for the gasoline it
distributes to the next party in the cha;n If a terminal receives a large batch of gasoline
from a refinery via a pipeline carrier, ana tests the gasoline to be above the standard
(but within the standard plus the enforcement tolerance), it should average its test
results, whether taken before or after it is split into two tanks, with any test results the
pipeline bad obtained prior to delivery to the terminal to determine compliance.
Whether the terminal tests the gasoline before or after it is distributed into different
tanks, would depend on the type of oversight program the terminal has in place.
•*29. 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? Wc 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 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 m order to eliminate this confusion?
Answer: The ASTM distillation id 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 tc 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 partyfies] 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 % 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 storage tanks (non-retail or wholesale purchaser-consumer 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 hy 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 problem, a "top sample"
should be collected. This would assure compliance for the top portion of a bottorr 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.
In circumstances where it may be difficult to obtain all-levels or running samples
within the 70% to 85% full requirement, an all-levels or running sample is still preferred
over the middle sample to assure accurate representation. These circumstances include
storage tanks with product inventory of less than 5 feet, tank trucks, tank cars, and
barges.
*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,
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and lower samples 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 during
the entire time the batch moved past the sampling prohe 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. EPA will also accept requests for
results of any laboratory tests.
•7. Question: Is EPA considering new sample size requirements?
Answer: EPA will continue to use one quart "Boston Round" glass containers
with teflon lined phenolic screw ops for the 1992 volatility season. These sample
containers will be plastic coated when collecting "nozzle samples" at retail gasoline
outlets and wholesale purchaser-consumers. In the proposed revisions to the volatility
regulations published on October 18, 1991, EPA proposed to approve the use of smaller
sample containers. The use of smaller containers, 4 oz. being the minimum size, would
be optional. The only new mandatory requirements regarding sample containers under
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the revisions, as proposed, are sample closure specifications which are designed to
prevent loss of vapor pressure prior to testing.
•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 For the 1992 control season, 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.
Until the October 18, 1991 proposed revisions to the regulatory test methods are
finalized, laboratory analysis will be conducted with the digital Herzog instrument using
the current regulatory methodology. Duplicate (actually replicate) analyses will be
performed in the laboratory on individual samples for quality control purposes.
•*10. Question: How will EPA enforcement address tank stratification of RVP?
Answer: As we stated in past seasons, product stratification in storage tanks
should be prevented where noncompliance may occur in a portion of the tank. EPA
inspections will be checking for stratification particularly during the early portion of the
control season. When inspections document portions of a tank out of compliance, EPA
will take enforcement action; however, penalty assessments will be based only on the
volume of product determined to be in violation.
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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?
Answers
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. For the 1992 season,
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 will include 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 ozone nonattainment areas vs. attainment areas?
Answer: Enforcement criteria will be the same in all areas of the country.
However, as indicated above, during the 1992 control season, 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.
•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
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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 lest 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 J psi standard areas, the inspectors will zsk to see
documents indicating where the gasoline is „ nng shipped and other evidence indicating
that the party has taken steps to ensure that the gasoline will be shipped to the proper
area,
•€, 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 sold). At the time of the inspection, a party should provide
documentation indicating whether product is blendstock or finished gasolioe and the
intended destination of the gasoline (i.e., 7,8 psi or 9.0 psi area). This documentation
should be that which is generally accepted commercially within the industry to describe
the nature and status of such product. 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: EPA generally will inform all identifiable parties who have potential
liability when a field test indicates gasoline may be in violation of the applicable
standard, 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
month of the laboratory verification of the violation.
3. 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 vio'ation?
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
violations. Under EPA's volatility penalty policy, proposed penalties are based upon the
gravity of the violation (amount of RVP over the standard and volume of product in
violation), adjusted for prior violations and, in certain cases, business size.
••4. Question: Some companies' experience in the volatility control program has been
that, in general, 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.
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Answer: As Indicated above, EPA will inform all identifiable parties who have
potential liability as soon as possible after a field lest indicates the gasoline may be in
violation of the standard. 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.
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I REMEDIAL ACTION
•1. Question: What should a party do if it d:scovers 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 a geographic 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; arid
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 inveaw^wOi*.
Any sale, supply, offering for sale or supply, dispensing, or transport (other than
transport only to correct a violation) would constitute continued additional violations of
the regulations. EFA is unwilling to grant a waiver to allow use of high volatility
product.
2. Question: What should a company do if it is notified that EPA has discovered a
violation? Will any remedial action affect the penalty?
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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-romplying 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 for 1992 and 1993?
Answer; EPA has proposed to approve 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 1992 and 1993 volatility seasons. EPA has granted a stay of the 7.8 psi standard
until September 15, 1992. By that time, EPA expects its proposal for a relaxation of the
7.8 psi standard to 9.0 psi to be Finalized.
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.
**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
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volatility controls entirely to such states? If not, will EPA lest facilities for compliance
with the federal RVP specification or the lower state RVP level?
Answer; In 1992, the federal standard will be 9,0 psi, or 7.8 psi in ozone
nonattainment (or former nonattainment) areas located in states designated to have a
7.8 ;si standard in the Phase II regukJons, making the federal standard the same or a
more stringent standard 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 reguiated gasoline to meet ASTM specifications for
several years for reasons not related to the environment. In these states, will the EPA
rule preempt state ASTM specifications if the ASTM limit is more restrictive?
Answer. As indicated above, 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.
•§. Question; Will states with unapproved SIPs, or pending SIP requests for approval,
be allowed to sample, test and enforce 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 J.l is satisfied).
*9. Question: Will states with approved SIP revisions be enforcing their regulations
using testing procedures that differ from EPA's?
Answer: As part of the SIP approval process, EPA requires states to use an EPA
approved method of testing. Currently two methods are included in the regulations as
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approved by EPA: the ASTM Annex 2 Modification of Method D-323 and the Herzog
Serni-Automatic Method,
•10- Question: Why does the EPA not dev lop a cooperative effort with the stale
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.
•11. Question: Will EPA's pump labeling requirement for ethanol blends preempt state
labeling requirements?
Answer; EPA no longer requires pump labeling for ethanol blends for volatility
purposes. See 56 FR 64704 (December 12, 1991). However, section 21l(m)(4) of the
Clean Air Act, as amended, requires EPA to promulgate labeling regulations for state
oxygenated gasoline programs under section 211(m). EPA has proposed labeling
regulations in the Federal Register. See 56 FR 31148 (July 9, 1991). Final labeling
regulations will be issued shortly. ^PA expects states to adopt the statement set forth in
the oxygenated gasoline labeling regulations without alteration or addition. EPA's
labeling regulations do not specify the oxygenate used. A state may require that
additional information (for example, type of oxygenate) be included on the pump label
as long as that information does not alter the statement required by EPA's regulations
in any way.
*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" determinat^n. Generally, however, the federal standard in 1992 will be as
stringent or more stringent than the state standard and regulated parties will be 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 ?
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Answer: EPA will leave the issue of testing tolerance to each stale.
•*14, Question; Do any regulatory variance measures exist in the event new gasoline
RVP regulations cause fuel shortages or se ere economic penalties in some stales 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 rionattainmcnt and former nonattainment areas. States, however,
may request that EPA adjust their standard to respond to local issues, within the
statutory limits. (See Section K, question 2, above, regarding Colorado's request for a
change in standard.)
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