This proposal has been filed with the Office of Administrative Law. The Office of Administrative Law will edit this proposal before publishing it in the New Jersey Register.  Please refer to the July 21, 1997 New Jersey Register for the official text of the proposal.


ENVIRONMENTAL PROTECTION

Office of Air Quality Management

Control and Prohibition of Air Pollution by Vehicular Fuels

Proposed Amendments: N.J.A.C. 7:27-25.1, 25.3, 25.4, and 25.11; N.J.A.C. 7:27A-3.10

Proposed Repeals: N.J.A.C. 7:27-25.8, and 25.9

Authorized: June 19, 1997, by Robert C. Shinn Jr., Commissioner, Department of Environmental Protection.

Filed: June 19, 1997

Authority: N.J.S.A. 13:1B-3 and 26:2C-1 et seq., in particular 26:2C-8.

DEP Docket Number: 14-97-06/630

Proposal Number: PRN 1997-

A public hearing concerning this proposal will be held at 10:00 A.M. on August 11, 1997, at:

New Jersey Board of Public Utilities

2 Gateway Center

Newark, New Jersey

Submit written comments by August 20, 1997 to:

Ann Zeloof, Esq.

Attention: DEP Docket No. 14-97-06/630

Office of Legal Affairs

Department of Environmental Protection

CN 402

Trenton, New Jersey 08625-0402

Copies of this document can be downloaded electronically from the Department's Air Quality Regulations Bulletin Board. The compressed file, OXY_PROP.ZIP, contains WordPerfect® 5.1 and ASCII documents and is located in file area #35 (Air: Props, Adopts, & Notices). The data line number for the Bulletin Board is (609) 292-2006. (Data bit: 8; Parity: N; Stop bit: 1)

The agency proposal follows:


Summary

N.J.A.C. 7:27-25 (subchapter 25) establishes requirements for the control and prohibition of air pollution by vehicular fuels. Subchapter 25 includes standards for the oxygenation and volatility of gasoline. By this action, the New Jersey Department of Environmental Protection (the Department) is proposing to repeal the oxygenation requirements for gasoline contained at N.J.A.C. 7:27-25.3(c) and 7:27-25.3(d).


Background

-Oxygenated fuels requirements:

The Federal Clean Air Act, 42 U.S.C. 7545(m) (Act), establishes oxygenated gasoline requirements for states containing all or part of an area that the United States Environmental Protection Agency (EPA) has designated a "nonattainment area" which has not met Federal health standards for carbon monoxide (CO), and which has a carbon monoxide design value of at least 9.5 parts per million. These states are to revise their State Implementation Plans (SIPs) to include requirements for oxygenated gasoline, and submit the revised SIP to the Administrator of the EPA.

New Jersey promulgated an oxygenated gasoline program, which is set forth in the existing rules at N.J.A.C. 7:27-25. The program currently requires the sale of gasoline containing 2.7 percent oxygen by weight (2.7 percent gasoline) in the counties of Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, Union and Warren, between November 1 of each year and the last day of the following February. New Jersey submitted to the EPA a SIP revision for the program, which the EPA approved. See 61 Fed. Reg. 5299, February 12, 1996, 40 C.F.R. Part 52 (Section 52.1570). Because the State now has two years of air monitoring data which shows that the listed counties are in attainment of CO standard, the Department now seeks to repeal the 2.7 percent oxygenation requirements of Subchapter 25, as further described below.

-Gasoline volatility requirements:

Subchapter 25 also includes provisions governing the volatility (expressed as "Reid vapor pressure," or "RVP") of gasoline. The RVP program was originally established in 1989 as part of the State's efforts to control ground level ozone pollution by regulating the vapor pressure of gasoline. The State's RVP standards currently require that from June 1 through September 15 of each year, the RVP of gasoline sold in New Jersey shall not exceed 9.0 pounds per square inch (psi). However, these standards have been preempted, until January 1, 1998, by the volatility standards applied to gasoline sold in New Jersey under the federal reformulated gasoline (RFG) program, which has been in effect throughout New Jersey since January 1, 1995. See 40 C.F.R. 52.1570 and 52.1605; 60 FR 32274, June 21, 1995. Since the existing State volatility rule will have utility after December 31, 1998, the Department has determined to retain those provisions in Subchapter 25.

Reasons for repeal of oxygenated fuels requirements:

-Lack of necessity of the program. Air quality data collected from the State's monitoring network shows that the 13 counties currently subject to the 2.7 percent gasoline requirements of Subchapter 25 are in attainment of the CO health standard and have been so since the beginning of 1995. The Department is convinced that the State can and will continue to maintain the CO standard in the future without the use of 2.7 percent gasoline. Instead, the Department believes that other measures, including the use of federal RFG (with an average oxygen content of 2.0 percent) and the implementation of the enhanced inspection and maintenance program will enable the effected counties in the north to maintain compliance with the standard. In addition, the Department is confident, based upon data modeling and studies, that deletion of the 2.7 percent gasoline program will not adversely affect the CO attainment and maintenance of the neighboring states of New York and Connecticut. For these and the reasons that follow, the Department believes that it is the appropriate time for the Department to seek repeal of the 2.7 percent gasoline program.

New Jersey has attained the Federal health standard for CO. Exceedance of the 1-hour average standard for CO is no longer a concern in New Jersey; carbon monoxide concentrations have not exceeded the 1-hour standard since the late 1970s, and typical 1-hour maximum concentrations in New Jersey are less than 20 ppm, well below the 35 ppm level. Noncompliance with the 8-hour NAAQS for CO in the past decade in New Jersey is primarily due to highway sources and is limited to specific areas during stagnating meteorological conditions. New Jersey has experienced two exceedances of the 8-hour carbon monoxide standard in 1995. However, because these exceedances occurred at two separate monitoring sites, they do not constitute a violation of the NAAQS.

In addition, newer vehicles show only minor differences in emissions when fueled with 2.0 percent gasoline rather than 2.7 percent gasoline. The adaptive learning technology in newer vehicles senses the amount of oxygen in the exhaust and adjusts the air-to-fuel ratio. This technology therefore minimizes the effectiveness of increasing fuel oxygen to promote more complete combustion. As older vehicles in New Jersey are eventually retired and replaced with newer vehicles equipped with this technology, the effectiveness of increasing fuel oxygen will decrease even further. The EPA's MOBILE 5 a model does not reflect the effect of adaptive learning, and therefore may overstate the CO benefits that result from an increase in fuel oxygen content

Other justifications for repeal of the program.

Public concerns regarding 2.7 percent oxygenated fuel. A number of New Jersey citizens have claimed that the use of 2.7 percent gasoline has adversely affected their well-being and enjoyment of life. Residents have complained of symptoms such as headaches, nausea, sleepiness while driving, other daytime sleepiness, coughing, lightheadedness, and eye irritation. Residents have attributed these symptoms to the use of 2.7 percent gasoline. The complaints are widespread; in 1994 and 1995 petitions were signed by over 15,000 residents, seeking to ban the use of the oxygenate methyl tertiary butyl ether (MTBE) because of these concerns.

In response to the complaints from residents, New Jersey is investigating further whether 2.7 percent gasoline may be, or may tend to be, injurious to human health and welfare. A number of pending and recently completed studies are an essential part of that investigation.

Environmental Occupational Health & Science Institute (EOHSI):

The Environmental and Occupational Health Science Institute (EOHSI), jointly sponsored by the University of Medicine and Dentistry of New Jersey - Robert Wood Johnson Medical School and Rutgers, the State University of New Jersey, is conducting two of these studies. EOHSI's studies are designed to provide information regarding the prevalence of acute health effects among the commuting public from exposure to MTBE, and to determine the degree to which sensitive members of the commuting public suffer acute health effects when exposed to varying levels of MTBE in gasoline. The EOHSI will be conducting a chamber study, whereby subjects will be exposed to various levels of pure MTBE in a controlled environment facility known as an exposure chamber. EOHSI anticipates beginning the exposure sessions in June 1997. The second EOHSI study gathers data from commuters. Individuals are asked to fill out a questionnaire about symptoms experienced after fueling with oxygenated fuel. In addition, at the time the questionnaire is being completed measurements are made from the interior of the vehicle. This study is designed to determine the prevalence of symptoms in the general population after exposure to MTBE at a gasoline station. After nearly 18 months of data gathering, customers at approximately 250 gasoline stations in New Jersey and 50 "self-service" type gasoline stations in Pennsylvania have been surveyed.

Office of Science & Technology Policy (OSTP):

In response to complaints from the public of acute health effects from exposure to evaporative and exhaust emissions from oxygenated gasoline, an interagency panel of scientists and health effects experts was convened. This panel was asked to develop an analysis of evidence on the acute health effects and other health issues related to the use of wintertime oxygenated fuels. The group's initial assessment of the health effects of oxygenated fuels is included in a report titled, "Interagency Assessment of Potential Health Risks Associated with Oxygenated Gasoline" which was released by the Office of Science & Technology Policy (OSTP) in February 1996.

Health Effects Institute (HEI):

The Health Effects Institute (HEI) in Cambridge, Massachusetts is also studying the health effects of oxygenated fuels and additives. The HEI is an independent research institution funded jointly by the EPA and the motor vehicle industry. The HEI study was designed to evaluate the health implications of the use of oxygenates in gasoline, including an evaluation of how the use of these oxygenates may affect the health risk of exposure to other motor vehicle emissions. In April 1996, HEI released its findings in a report titled, "The Potential Health Effects of Oxygenates Added to Gasoline".

The HEI is currently funding the following three new studies on gasoline oxygenates:

1) "Metabolism of Gasoline Ethers in Human Liver Microsomes and by Heterologously Expressed Human Cytochrome P450 Enzymes", by Dr. J-Y. Hong, at Rutgers University, Piscataway, New Jersey. This study will explore the hypothesis that the reported sensitivity to MTBE of certain individuals could be due to a more limited ability to metabolize MTBE in these individuals . The researchers have demonstrated that the metabolism of gasoline ethers (MTBE, ETBE, TAME) in human livers is catalyzed by cytochrome P450 enzymes.

2) "The Toxicokinetics of Methyl-Tertiary Butyl Ether Inhaled Alone and in Combination with Gasoline Vapors", by J. Benson, Lovelace Respiratory Research Institute, Albuquerque, New Mexico. Rats will be exposed to MTBE as a component of gasoline vapor or exhaust, and the toxicokinetics of MTBE inhaled under these conditions will be studied.

3) "Biotransformation of Methyl-Tertiary Butyl Ether, Ethyl-Tertiary Butyl Ether and Tertiary-Amyl Methyl Ether in Rats and Humans", by W. Dekant, University of Wuerzburg, Germany. These studies designed are to investigate the metabolism of MTBE, ETBE, and TAME after inhalation exposure in rats. Further studies are in progress.

The National Academy of Science (NAS):

The NAS conducted an independent evaluation of the April 1996 HEI report. In June 1996, NAS released its report titled, "Toxicological and Performance Aspects of Oxygenated Motor Vehicle Fuels". In response to the NAS evaluation, the National Science and Technology Council's Committee on Environmental and Natural Resources (CENR) will address the comments and findings contained in the June 1996 NAS report. These responses will be included in CENR's final report which is expected to be released shortly.

Substituting the federal RFG standards will replace the wintertime 2.7 percent minimum oxygen content standard with the year-round, 2.0 percent minimum averaged oxygen content standard of RFG. There is reason to believe that reducing the required oxygen content to 2.0 percent by weight may reduce the number of citizen complaints regarding the effects of 2.7 percent oxygenated fuel. After New Jersey's 1994-95 oxygenated fuel season ended and 2.0 percent gasoline replaced 2.7 percent gasoline, the number of complaints received monthly by the Department dropped by nearly 90 percent. It was the experience of both the Department and the New Jersey Department of Health (DOH) that these numbers stayed low during the 1995 - 1996 and 1996 - 1997 seasons.

After the requirements for wintertime oxygenated fuel were discontinued in the southern counties of New Jersey, complaints to the Department dropped off to zero during the spring and summer months when gasoline was still oxygenated, only to 2.0 percent. This suggests that switching to RFG may minimize, if not eliminate, health effects attributed to the wintertime oxygenates. In addition, the Wisconsin Department of Health and Social Services released the results of a study ("An Investigation of Health Concerns Attributed to Reformulated Gasoline Use in Southeastern Wisconsin," Wisconsin Department of Health and Social Services, May 30, 1995) to investigate health effects possibly caused by the use of Federal RFG containing 2.0 percent oxygen by weight. That study concluded that the increased prevalence of adverse health effects could not be attributed to the use of Federal RFG.

Odor. MTBE and other oxygenates are highly odorous. See "Odor Threshold Studies Performed with Gasoline and Gasoline Combined with MTBE, ETBE and TAME," American Petroleum Institute Publication Number 4592, January 1994. It is therefore not surprising that a large number of New Jersey residents have complained of unpleasant odors from oxygenated gasoline. In general, odors from gasoline containing MTBE become more intense and more easily detectable and recognizable as the concentration of MTBE increases. Conversely, the odors become less intense and less easily detectable and recognizable as the MTBE concentration decreases. Accordingly, reducing the oxygen content of gasoline sold throughout New Jersey to 2.0 percent by weight may reduce the degree of the odor problem, thereby preventing violations of the State ambient air quality standard.

Other actions related to the repeal of wintertime oxygenation requirements

As explained above, the current oxygenated fuel requirements set out in Subchapter 25 were given final EPA approval on February 12, 1996 when the federal agency approved the State's SIP revision containing the original regulation. The proposed repeal of the 2.7 percent gasoline regulation is therefore an essential part of the process to eliminate this program under both State and federal law. Shortly after filing this proposed repeal with the Office of Administrative Law, the Department will submit to the EPA a request to have the affected counties in northern New Jersey redesignated to attainment based upon air monitoring data showing that the northern part of the State has achieved the CO standard. Along with that submittal, the Department will submit to the EPA the components of a draft revision to the State's carbon monoxide SIP repealing the 2.7 percent oxygenated fuel requirements of Subchapter 25, since 2.7 percent oxygenated gasoline is required only in areas that are not in attainment of the CO standard and which have a CO design value of 9.5 ppm or above. The northern counties of the State which are the subject of this rulemaking no longer meet either of those criteria. Congress made clear in the Clean Air Act at 42 U.S.C. 7545(m)(6) that the 2.7 oxygenated fuel requirement was not applicable to areas that are in attainment. Therefore, the Department seeks to revise the SIP to repeal the 2.7 percent gasoline program.

The redesignation request will demonstrate that the 13 counties are in attainment and have been for the two years required in order for a redesignation application to be made (1995 and 1996). Further, the redesignation application will contain a maintenance plan, as required by 42 U.S.C. 7407(d)(3)(E) and 7505a, which demonstrates that the State will maintain the CO standard without use of 2.7 percent oxygenated fuel, relying instead upon federal RFG and implementation of enhanced inspection and maintenance.

The draft SIP revision which will be simultaneously submitted to the EPA with the redesignation request will similarly demonstrate attainment of the CO standard in northern New Jersey. The SIP revision submittal will also show that the repeal of the program in New Jersey will not adversely affect compliance and maintenance of the CO standard in the regional area (New York and Connecticut). To satisfy the procedural requirements of the EPA's regulations for all SIP revisions, the SIP public hearing and comment process will be conducted simultaneously with the hearing and public comment period on the proposed rule repeal.


Revisions to N.J.A.C. 7:27-25

The proposed revisions to N.J.A.C. 7:27-25 are described below:

N.J.A.C. 7:27-25.1 - Definitions. The Department proposes to repeal all definitions of terms that are used only in the oxygenated gasoline requirements elsewhere in subchapter 25, or are not used in subchapter 25 at all. These terms include: "distribution capacity," "national ambient air quality standards," "nitrogen dioxide (NO2)", "nitrogen oxide (NO)", "oxides of nitrogen (NOx)", "oxygen content," "oxygen program control area," "oxygen program control period," "oxygenate," and "oxygenate blend". The Department has also modified the definition of terms which contain language referring to the oxygenated gasoline requirements. These terms include "control period", and "nonconforming gasoline". Certain other definitions have been modified for greater clarity.

N.J.A.C. 7:27-25.3 - General provisions. The Department has deleted N.J.A.C. 7:27-25.3(c), which establishes the requirement for the oxygen content of gasoline. The Department has also deleted N.J.A.C. 7:27-25.3(d), (e), (f), and (g), which are relevant only to the implementation of the oxygenated gasoline program.

N.J.A.C. 7:27-25.4 - Recordkeeping and compliance determinations. N.J.A.C. 7:27-25.4 contains requirements for gasoline testing, recordkeeping, and sampling. The Department has revised this section so that its requirements apply only to the Reid vapor pressure (RVP) and not to the oxygen content of gasoline.

N.J.A.C. 7:27-25.8 - Labeling. N.J.A.C. 7:27-25.8 requires gasoline retailers to affix to their pumps and other dispensing devices a label setting forth general information relevant to the oxygenated gasoline program. The Department has deleted these requirements, to avoid the possibility that the labels could lead the public to believe that the program is still in effect.

N.J.A.C. 7:27-25.9 - Variances for shortage of supply. N.J.A.C. 7:27-25.9 establishes a procedure for obtaining variances from the oxygen content standards of the current rules. The Department has repealed this procedure, because the repeal of the oxygen content standards makes a variance procedure unnecessary.

N.J.A.C. 7:27-25.10 - Owner and operator responsibility. The Department has recodified this section as N.J.A.C. 7:27 - 25.8.

N.J.A.C. 7:27-25.11 - Service fees. N.J.A.C. 7:27-25.11(c) and (d) establish service fees for the variance procedure in N.J.A.C. 7:27-25.9. The Department has repealed these fee provisions, because it has repealed the variance procedure. In addition, the Department has recodified this section as N.J.A.C. 7:27 - 25.9.


Revisions to N.J.A.C. 7:27A-3.10(m)

N.J.A.C. 7:27A-3.10(m) contains the civil administrative penalty schedule for N.J.A.C. 7:27. The penalty provisions relating to N.J.A.C. 7:27-25 are set forth at N.J.A.C. 7:27A-3.10(m)25. The Department will repeal those penalty provisions relating to sections of subchapter 25 which would be repealed by this proposal.


Social Impact

Discontinuing the oxygenated gasoline program will have a positive social impact. As discussed above in the Summary, the Department has determined that the program is not a necessary part of the State's strategy to maintain the health standard for CO. Discontinuing the program will therefore eliminate an unnecessary regulatory burden upon motorists and businesses involved in the distribution of gasoline.

As also discussed above in the Summary, many New Jersey residents have experienced various physical reactions which they have attributed to the level of oxygenate used in 2.7 percent gasoline. If pending studies show that 2.7 percent gasoline contributes to those effects, then discontinuing the oxygenated gasoline program will have a positive social impact. In addition, the Department believes that discontinuing the program will reduce or eliminate the odor problem described above in the summary, further contributing to a positive social impact.

Economic Impact

The Department expects that discontinuing the oxygenated gasoline program will result in some cost savings for the regulated industry and the public. Refiners, blenders, importers and distributors will derive savings from the reduced oxygen content requirements, which they may pass on to consumers. The Department estimates that the cost of producing 2.7 percent gasoline is approximately $0.02 per gallon more than the cost of producing 2.0 percent gasoline to satisfy the oxygen content requirements for Federal RFG. Based on 1993 sales figures, the aggregate savings would be approximately $20 million annually. The regulated industry will also save costs as a result of the elimination of the sampling, testing and recordkeeping requirements from the existing rules.

The proposal may have a limited negative economic impact on some motorists. Some vehicles may have passed CO emission tests administered during the time that oxygenated gasoline is sold, but it is possible that they would not have passed had they been using gasoline with a lower oxygen content. The Department has collected anecdotal data indicating that some vehicles are in this situation, but the data was collected under uncontrolled conditions. Owners of such vehicles would incur the expense of repairing the vehicle in order to pass the test using 2.0 percent gasoline. However, the Department believes that no more than a small number of vehicles would conceivably be affected in this manner. Relatively few vehicles are likely to pass by such a small margin that the use of 2.7 percent gasoline would make the difference between passing and failing; and, as discussed in the Summary above, newer vehicles feature adaptive learning technology that further minimizes the difference in emissions between vehicles using 2.7 percent gasoline and vehicles using 2.0 percent gasoline.


Environmental Impact

The Department believes that discontinuing the oxygenated gasoline program will have no significant environmental impact. The Department believes that providing for the sale of 2.0 percent gasoline instead of 2.7 percent gasoline will enable New Jersey to maintain the CO standard because other factors will be sufficient to accomplish this goal. These factors include the continuing replacement of older vehicles with new ones; the implementation of the enhanced Inspection and Maintenance Program; and the continued use of RFG. These factors are discussed above in the summary.


Regulatory Flexibility Statement

In accordance with the New Jersey Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the Department has determined that discontinuing the oxygenated gasoline program will not impose additional reporting or recordkeeping requirements on small businesses, nor would they impose additional compliance requirements on small business. On the contrary, compliance, reporting and recordkeeping requirements are being repealed. Therefore, no Regulatory Flexibility Analysis is required.


Comparison with Federal Law

As a result of discontinuing New Jersey's oxygenated gasoline program, only Federal requirements regarding the oxygen content of gasoline will be applicable in New Jersey. Therefore, the amendments and repeals do not impose standards or requirements that exceed those contained in Federal law. Accordingly, neither Executive Order 27 (1994) nor N.J.S.A. 52:14B-23 requires a cost-benefit analysis.


Jobs Impact Statement

The Economic Impact statement above discusses the savings that the Department expects the regulated community to derive from the elimination of the oxygenated gasoline program. Each member of the regulated community will choose its own approach or combination of approaches to use those savings. Examples of such approaches include increasing (or increasing the rate of growth of) any of the following: other business expenditures; dividends and other distributions; and compensation to management and other employees. In addition, reduced compliance costs could be passed on in the form of lower prices for goods and services sold by regulated companies. Conceivably, the savings could enable a regulated entity to increase the number of its employees. Because each member of the regulated community may use its savings in a different way, it is not possible to estimate accurately the extent, if any, to which these rules will affect employment.


Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

7:27-25.1 Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

***

"Control period" means the applicable period each year during which gasoline within a control area is subject to the [oxygen content or] RVP standards set forth at N.J.A.C. 7:27-25.3.

***

"Department" means the New Jersey Department of Environmental Protection [and Energy].

["Distribution capacity" means capacity for transportation, storage and blending.]

***

["National ambient air quality standard" or "NAAQS" means an ambient air quality standard promulgated at 40 CFR 50.

"Nitrogen dioxide (NO2)" means a gaseous compound at standard conditions, having a molecular composition of one nitrogen atom and two oxygen atoms.

"Nitrogen oxide (NO)" means a gaseous compound at standard conditions, having a molecular composition of one nitrogen atom and one oxygen atom.]

"Nonconforming gasoline" means any gasoline [the RVP or oxygen content of which does not during the applicable control period conform with] with an RVP content that does not satisfy the standards set forth in N.J.A.C. 7:27-25.3 during the applicable control period.

["Oxides of nitrogen (NOx)" means any of the oxides of nitrogen including, but not limited to, nitrogen oxide and nitrogen dioxide.

"Oxygen content" means, in respect to the composition of gasoline, the percentage of oxygen by weight (unless specified as being by volume) contained in the gasoline. The percentage of oxygen by weight of the gasoline shall be based upon its percentage oxygenate by volume excluding denaturants and other non-oxygen-containing components. All volume measurements are adjusted to 60 degrees Fahrenheit.

"Oxygen program control area" means the area containing the counties of Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, Union and Warren.

"Oxygen program control period" means the control period in New Jersey during which oxygen content standards set forth at N.J.A.C. 7:27-25.3 are applicable to gasoline.

"Oxygenate" means any substance which, when blended into gasoline, increases the amount of oxygen in that gasoline blend and which is allowed to be used as a gasoline additive pursuant to 42 USC 7545.

"Oxygenate blend" means a gasoline produced by blending one or more oxygenates into a base gasoline.]

***

7:27-25.3 General provisions

(a) - (b) (No change.)

(c) [Except as provided for at N.J.A.C. 7:27-25.9, no refiner, importer, blender, distributor, wholesale purchaser-consumer, or retailer shall provide, store, offer for sale, sell, transport, import, or exchange in trade gasoline for use in the oxygen program control area unless:

1. The oxygen content of the gasoline equals or exceeds 2.7 percent from November 1 through and including the last day of the following February; and

2. The oxygen content of the gasoline equals or is less than 3.5 percent.

(d) The standards set forth in (c) above shall become operative on November 1, 1992 or on such delayed effective date as EPA establishes, pursuant to 42 U.S.C. 7545(m)(3)(C), due to a determination that there is or is likely to be, for any control area, an inadequate domestic supply of or distribution capacity for:

1. Oxygenated gasoline that meets the standard set forth in (c) above; or

2. The oxygenates needed to blend into gasoline to make fuel that conforms with (c) above.

(e) At no time shall a refiner, importer, blender, distributor, wholesale purchaser-consumer or retailer provide, store, offer for sale, sell, transport, import or exchange in trade for use in New Jersey gasoline unless, pursuant to 42 U.S.C. 7545, the EPA has:

1. Determined to its satisfaction that the gasoline and any oxygenate or a combination of oxygenates blended into the gasoline are substantially similar to any gasoline and any concentration of an oxygenate or a combination of oxygenates utilized, pursuant to 42 U.S.C. 7525, in the certification of any model year 1975, or subsequent model year, vehicle or engine; or

2. Waived the requirement for the gasoline and any oxygenate or a combination of oxygenates blended into the gasoline to be substantially similar to any fuel or fuel additive utilized, pursuant to 42 U.S.C. 7525, in the certification of any model year 1975, or subsequent model year, vehicle or engine.

(f) Notwithstanding the provisions of (c) above, a refiner, importer, blender, or distributor may provide, store, offer for sale, sell, transport, import, or exchange in trade gasoline which has an oxygen content less than 2.7 percent, provided that:

1. The gasoline is destined for one of the following uses:

i. Provision, sale, or exchange in trade to a retailer or wholesale purchaser-consumer at a facility located outside the oxygen program control area;

ii. Provision, sale, or exchange in trade to a retailer or wholesale purchaser-consumer at a time which is outside the oxygen program control period applicable to that retailer or wholesale purchaser-consumer;

iii. Provision, sale, or exchange in trade to another refiner, importer, blender, or distributor; or

iv. Blending with oxygenate so that the gasoline has an oxygen content which equals or exceeds 2.7 percent prior to providing, selling, or otherwise exchanging in trade the gasoline to a retailer or wholesale purchaser-consumer;

2. Documents associated with the gasoline, including but not limited to any record, invoice, or bill of lading, specify which one of the uses given in (f)1 above applies to the gasoline; and

3. The refiner, importer, blender or distributor ensures that gasoline is provided, sold, stored, transported, imported, or exchanged in trade in accordance with the use specified in (f)2 above.

(g) Upon the request of any consumer, a retailer shall inform the consumer as to the category of oxygenate, either alcohol or ether blends, being dispensed from any of the gasoline dispensing devices at the facility.

(h)] Wholesale purchaser-consumers and retailers shall be exempt from the RVP standard established in (a) above during the month of May.

7:27-25.4 Recordkeeping and compliance determinations

(a) Each refiner, importer, blender or distributor shall:

1. During any applicable control period established pursuant to N.J.A.C. 7:27-25.3, test all gasoline prior to its release from a refinery, import facility, blending facility or distribution facility for use in a control area within the State to determine its RVP [or oxygen content, as applicable], and for each test prepare a test report which documents the RVP [or oxygen content, as applicable,] of the gasoline;

2. Certify to the distributor, retailer or wholesale purchaser-consumer to whom gasoline is delivered that the gasoline has been tested in accordance with this section; that, during the RVP control period, the gasoline has an RVP of 9.0 pounds per square inch or less; [that, during the oxygen program control period, the gasoline conforms with the oxygen content requirements of this subchapter; the category of oxygenate, either alcohol or ether blends, being used in the gasoline;] and that the gasoline is in compliance with all applicable State and Federal regulations, by providing:

i. A copy of the test report prepared pursuant to (a)1 above with the certification contained therein; or

ii. The certification in writing on the invoice, bill of lading, or other transfer document; and

3. Maintain records on all gasoline leaving the refinery, import facility, blending facility, or distribution facility, which document the RVP [and the oxygen content] of the gasoline; [the category of the oxygenate, either alcohol or ether blends, in the gasoline;] shipment quantity; shipment date; and other such information as the Department may prescribe. Documentation may include, but is not limited to, bills of lading, invoice delivery tickets, and loading tickets.

(b) Each retailer or wholesale purchaser-consumer shall maintain records on each delivery of gasoline, including the RVP [and the oxygen content] of the gasoline[,]; [the category of the oxygenate, either alcohol or ether blends, in the gasoline;] delivery quantity; date of delivery; and other such information as the Department may require. Documentation may include, but is not limited to, bills of lading and other transfer documents, invoice delivery tickets and loading tickets, and invoices and test reports certified pursuant to (a)2 above.

(c) Any sampling of gasoline required pursuant to the provisions of this subchapter for determining the RVP of gasoline shall be conducted in accordance with the following methods:

1. [For determining the RVP of gasoline:

i.] For manual sampling: ASTM D4057; or

[ii.] 2. For continuous sampling and nozzle sampling: California Administrative Code Title 14, R.2261(R)(3) and (k)(4)(1987) [; and

2. For determining the oxygen content of gasoline:

i. The methods set forth at 40 CFR 80, Appendix D; or

ii. Any other method approved in writing in advance by the Department and EPA].

(d) (No change.)

(e) [Any determination of the oxygen content of any sample of gasoline required pursuant to the provisions of this subchapter shall be conducted as follows:

1. The sample of gasoline shall be tested to determine the concentration, in percent by volume, of each oxygenate in the gasoline. All volume measurements used in the testing shall be adjusted to 60 degrees Fahrenheit. Only the oxygen-containing components of the oxygenate shall be taken into consideration in determining the concentration; any denaturant or other non-oxygen-containing components shall be excluded from the determination of the concentration. The testing of the sample of gasoline shall be conducted using one of the following test methods:

i. ASTM D4815; or

ii. Any other equivalent test method approved in advance in writing by the Department and EPA;

2. The densities (or specific gravities) of each oxygenate and of the oxygenate blend shall be established as follows:

i. The density of each oxygenate is given in Table 1 at N.J.A.C. 7:27-25.4; and

ii. The density of the oxygenate blend shall be calculated as follows:

(1) The density of the base gasoline into which the oxygenate(s) are blended is assumed to be 0.7420; and

(2) The density of the oxygenate blend obtained when the oxygenate(s) are blended into the base gasoline shall be calculated by determining the weighted average of the densities of the oxygenate(s) and the base gasoline. In determining this weighted average, the density of each component shall be weighted in proportion to the volumetric fraction of that component in the oxygenate blend;

3. The mass concentration of the oxygen-containing components of each oxygenate in the gasoline shall be obtained by multiplying the concentration of each oxygenate in the gasoline, determined in (e)1 above, by the following ratio: the specific gravity (or density) given for the oxygenate in Table 1 below to the specific gravity (or density) of the oxygenate blend, determined in (e)2ii above;

4. The contribution of the oxygenate to the oxygen content of the gasoline, in percent by weight, shall be determined by multiplying the mass concentration of the oxygenate in the gasoline determined in (e)3 above by the oxygen molecular weight fraction of the oxygenate, obtained from Table 1 below; and

5. The total oxygen content in percent by weight of the gasoline shall be obtained by summing the oxygen content contribution of each oxygenate in the gasoline.

(f) In order to provide allowance for test method variation, the Department shall consider any gasoline which is tested using ASTM D4815, pursuant to (e)1i above, to comply with the standards of N.J.A.C. 7:27-25.3 if its oxygen content, calculated pursuant to (e) above, is within 10 percent of the standard.

TABLE 1
Specific Gravity and Oxygen Molecular Weight Fraction of Common Oxygenates
Oxygenate Oxygen Molecular Weight Fraction at 60o F Specific Gravity
methyl alcohol

0.4993

0.7963

ethyl alcohol

0.3473

0.7939

normal propyl alcohol

0.2662

0.8080

isopropyl alcohol

0.2662

0.7899

normal butyl alcohol

0.2158

0.8137

isobutyl alcohol

0.2158

0.8058

secondary butyl alcohol

0.2158

0.8114

tertiary butyl alcohol

0.2158

0.7922

methyl tertiary butyl ether (MTBE)

0.1815

0.7460

tertiary amyl methyl ether (TAME)

0.1566

0.7752

ethyl tertiary butyl ether (ETBE)

0.1566

0.7452

diisopropyl ether (DIPE)

0.1566

0.7300

(g)] All records and documentation required to be made or maintained in accordance with this section, including any calculations performed, shall be maintained by each refiner, importer, blender, distributor, retailer, and wholesale purchaser-consumer, as applicable, for not less than three years from the date the record is made. Records made within the past year (the previous 12 months) shall, upon request of the Department or its authorized representatives, be immediately available for review. Records made in previous years shall, upon the request of the Department or its authorized representatives, be available for review within five business days.

[(h) Notwithstanding the requirements in this section for testing to determine the oxygen content of gasoline, a refiner, importer, blender or distributor may apply to the Department for approval to use an alternative method of determining the oxygen content of gasoline. The application shall be certified in accordance with N.J.A.C. 7:27-8.24. The Department shall not approve such an application unless the alternative method proposed would ensure that the oxygen content of the fuel would be determined with no less accuracy and reliability than would be achieved through testing in accordance with this section.]

[7:27-25.8 Labeling

(a) During any oxygen content control period in which the gasoline provided, offered for sale, sold, or otherwise exchanged in trade at a facility owned or operated by any retailer or wholesale purchaser-consumer is subject to the oxygen content standards set forth at N.J.A.C. 7:27-25.3 the retailer or wholesale purchaser-consumer shall label as specified in (b) through (d) below each fuel pump or other gasoline dispensing device.

(b) The label shall, except as provided in (c) below, contain the text given below. This statement shall not be altered and no additional language shall be inserted within the text. However, a phrase indicating the dates of the oxygen program control period may be added before or after this text. If a label does not contain the dates of the oxygen program control period then that label shall be removed from the fuel pump or other gasoline dispensing device at the end of the oxygen program control period. This label shall state the following:

The gasoline dispensed from this pump is oxygenated and will reduce carbon monoxide pollution from motor vehicles.

(c) If the fuel pump or other gasoline dispensing device is dispensing nonconforming fuel in accordance with a variance issued by the Department pursuant to N.J.A.C. 7:27-25:9, the label shall state the following:

The fuel dispensed from this pump does not meet standards established to reduce carbon monoxide pollution from motor vehicles but is temporarily authorized to be distributed due to a shortage of supply of fuel that meets the standard.

(d) Any label required pursuant to this section shall be:

1. Posted on the vertical surface of the gasoline dispensing device on each side of the device from which gasoline can be dispensed, on the upper two-thirds of the surface, in a position clear, conspicuous, and easily readable from the position of the driver in the vehicle to which gasoline is being dispensed; and

2. Clearly legible and in block letters that are:

i. No less than 20-point bold type; and

ii. In a color that contrasts with the background on which they are placed.

7:27-25.9 Variance for shortage of supply

(a) The Department may issue to a refiner, importer, blender, or distributor who has or may have an insufficient supply of conforming gasoline, a temporary variance from the oxygen content standards set forth at N.J.A.C. 7:27-25.3 which would allow the refiner, importer, blender, or distributor to provide, offer for sale, sell, transfer, import, or exchange in trade gasoline that does not conform with the oxygen content requirements of this subchapter.

(b) Application for a temporary variance pursuant to this section shall be made on forms obtained from the Department. Any person may request an application form from:

Assistant Director of Air and Environmental Quality Enforcement

Division of Facility Wide Enforcement

Department of Environmental Protection

CN 422

Trenton, New Jersey 08625-0422

(c) A refiner, importer, blender, or distributor seeking a variance pursuant to this section shall submit a written application to the Department, containing the following information:

1. Documentation that there is or may be an inadequate supply of conforming gasoline due to extreme and unusual circumstances, for example, a natural disaster or an "Act of God";

2. A statement of the cause(s) of the shortage of conforming gasoline and an explanation of how the cause(s) are beyond the control of the applicant and could not have been avoided by the applicant by the exercise of prudence, diligence and due care;

3. A statement of how an adequate supply of conforming fuel will be expeditiously obtained;

4. A comprehensive listing of all facilities to which the applicant would, pursuant to the variance, provide or sell the nonconforming gasoline. This listing shall include the name and address of each facility and the name and phone number of a contact person at each facility;

5. Specification of the minimum oxygen content of the nonconforming gasoline which will be provided or sold, during the period in which the variance is in effect; and

6. Such other information as the Department determines is necessary to ensure compliance with this subchapter and to evaluate the potential effect of approval of the variance on public health, welfare and the environment.

(d) Any application for a variance submitted to the Department pursuant to this subchapter shall include a service fee in accordance with N.J.A.C. 7:27-25.11© and shall be certified in accordance with N.J.A.C. 7:27-8.24.

(e) No applicant for a variance pursuant to this section may provide, offer for sale, sell or otherwise exchange in trade any non-conforming gasoline before the Department approves the variance in writing.

(f) The Department shall deny any application for a variance if:

1. The Department determines that approval of the variance may result in the presence in the outdoor atmosphere of any air contaminant in such quantity and duration which is or tends to be injurious to human health or welfare, animal or plant life or property, or may unreasonably interfere with the enjoyment of life or property. This does not include an air contaminant which occurs only in areas over which the applicant has exclusive use or occupancy; or

2. The applicant fails to demonstrate to the satisfaction of the Department, that:

i. There is or may be an inadequate supply of conforming gasoline due to extreme and unusual circumstances, for example, a natural disaster or an "Act of God";

ii. The cause(s) of the shortage of conforming gasoline are beyond the control of the applicant and could not have been avoided by the applicant by the exercise of prudence, diligence and due care;

iii. The applicant has taken all reasonable steps to minimize the extent and duration of the inadequate supply of conforming gasoline; or

iv. The applicant has taken all reasonable steps to obtain an adequate supply of gasoline.

(g) The Department may deny an application for a variance if the applicant fails to provide all information requested by the Department within 30 days after the request is received by the applicant, or within a longer period if such a response period is approved in writing by the Department.

(h) Any variance issued by the Department under this section shall be valid for a period stated in the variance. The period shall be no longer than 45 days.

(i) Any refiner, importer, blender, and distributor to whom the Department issues a variance pursuant to this section shall provide a copy of the variance to each distributor, retailer or wholesale purchaser-consumer named in the variance in accordance with (c)4 above.

(j) No retailer who provides or sells nonconforming gasoline and no wholesale purchaser-consumer who uses nonconforming gasoline shall be deemed by the Department to have violated the provisions of this subchapter if:

1. The retailer or wholesale purchaser-consumer is named, in accordance with (c)4 above, in a variance issued by the Department pursuant to this section; and

2. The retailer or wholesale purchaser-consumer demonstrates, to the satisfaction of the Department, that the nonconforming gasoline was provided to the retail gasoline dispensing facility or the wholesale purchaser-consumer's facility pursuant to that variance.

(k) Any person holding a variance issued by the Department pursuant to this section shall:

1. Allow lawful entry by the Department or its authorized representatives to the facility for which the variance is issued;

2. Make said variance readily available for inspection on the operating premises to the Department or its authorized representatives;

3. Pay any penalty assessed pursuant to a final order issued by the Department or any court of competent jurisdiction; and

4. Pay any outstanding service fees, charged in accordance with N.J.A.C. 7:27-25.11(d), within 60 days after receipt of a fee invoice.

(l) Any person to whom the Department has issued a variance pursuant to this section shall:

1. Maintain records, on a daily basis, showing the actual oxygen content and the volume in gallons of each shipment of nonconforming gasoline provided or sold or otherwise exchanged in trade during the period that the variance was in effect. Such records shall be maintained on the operating premises for no less than three years from the date the record was made;

2. Submit to the Department, within 60 days of the Department's issuance of the variance, a report indicating the total number of gallons of nonconforming gasoline provided, sold or otherwise exchanged in trade, or used during the period the variance was valid and the actual oxygen content of that gasoline. The report shall be submitted in a format acceptable to the Department and shall be certified in accordance with N.J.A.C. 7:27-8.24;

3. Remit to the Department with the report specified in (l)2 above penalties pursuant to N.J.A.C. 7:27A-3.10(e)25. Any penalties due shall be submitted to the Department with the report. The Department will not consider any submission of a report for which penalties are required acceptable, unless the penalties are remitted with the report;

4. Make the records required to be kept pursuant to (l)1 above available, upon request, for review by the Department or its authorized representatives; and

5. Upon the request of the Department, submit to the Department all or any part of the information contained in the records required to be kept pursuant to (l)1 above.

(m) The Department may revoke any approval of any variance granted pursuant to this section if the Department determines that the person to whom the Department has issued the variance has failed to:

1. Allow lawful entry by the Department or its authorized representatives to the facility for which the variance is issued;

2. Pay any penalty assessed pursuant to a final order issued by the Department or any court of competent jurisdiction;

3. Pay any outstanding service fees, charged in accordance with N.J.A.C. 7:27-25.11(d), within 60 days after receipt of a fee invoice; or

4. Comply with any requirement of this subchapter or any condition set forth in the variance approved by the Department.

(n) If the Department seeks to revoke a variance during the term of that variance, the Department shall provide the opportunity to request a hearing pursuant to the procedures set forth at N.J.A.C. 7:27-8.12. Such request shall be filed with the Department at the following address:

Office of Legal Affairs

ATTENTION: Adjudicatory Hearing Requests

Department of Environmental Protection and Energy

401 E. State Street

CN 402

Trenton, New Jersey 08625-0402]

7:27-[25.10] 25.8 Owner and operator responsibility

The owner and operator of any facility subject to this subchapter shall be responsible for ensuring compliance with all requirements of this subchapter. Failure to comply with any provision of this subchapter may subject the owner and operator to civil penalties in accordance with N.J.A.C. 7:27A-3 and criminal penalties pursuant to N.J.S.A. 26:2C-19(f)1 and 2. If there is more than one owner or operator of a facility, all owners and operators are jointly and severally liable for such civil and criminal penalties.

7:27-[25.11] 25.9 Service fees

(a) Any person who applies for an exemption pursuant to N.J.A.C. 7:27-25.7 shall submit with the application, as an integral part thereof, a non-refundable service fee of $500.00.

(b) Any person to whom the Department has issued an exemption pursuant to N.J.A.C. 7:27-25.7 shall remit to the Department within 60 days after receipt of an invoice, an annual compliance inspection fee of $500.00 for each year that the exemption remains in effect.

[(c) Any person who applies for a variance pursuant to N.J.A.C. 7:27-25.9 shall submit with the application a non-refundable service fee of $500.00. No application shall be deemed complete without the required fee.

(d) Any person to whom the Department has issued a variance pursuant to N.J.A.C. 7:27-25.9 shall remit to the Department within 60 days after receipt of an invoice, a compliance inspection fee of $200.00. Such person is subject to a compliance inspection fee only if the Department conducts at the facility one or more compliance inspections pursuant to the variance during any year, or part thereof, that the variance is in effect. The Department shall not charge such person a compliance inspection fee more frequently than once per year.]

7:27A-3.10 Civil administrative penalties for violation of rules adopted pursuant to the Act

(m) The violations of N.J.A.C. 7:27 and the civil administrative penalty amounts for each violation are as set forth in the following Civil Administrative Penalty Schedule. The numbers of the following subsections correspond to the numbers of the corresponding subchapter in N.J.A.C. 7:27. The rule summaries for he requirements set forth in the Civil Administrative Penalty Schedule in this subsection are provided for informational purposes only and have on legal effect.

CIVIL ADMINISTRATIVE PENALTY SCHEDULE

1. - 24. (No change.)

25. The violations of N.J.A.C. 7:27-25, Control and Prohibition of Air Pollution by Vehicular Fuels, and the civil administrative penalty amounts for each violation, are as set forth in the following table:

Citation

Class

First

Offense

Second

Offense

Third

OffenseFourth and Each

Subsequent

Offense..................[N.J.A.C. 7:27-25.3(c)Less than 15,000 gallon tank capacity.

From 15,000 up to 50,000 gallon tank capacity.

From 50,000 up to 500,000 gallon tank capacity.

Greater than 500,000 gallon tank capacity. $2,000

$4,000

$8,000

$10,000 $4,000

$8,000

$16,000

$20,000$10,000

$20,000

$40,000

$50,000$30,000

$50,000

$50,000

$50,000]..................[N.J.A.C. 7:27-25.8Labeling (per pump) $100 $200 $500 $1,500N.J.A.C. 7:27-25.9(i)Records $500 $1,000 $2,500 $7,500N.J.A.C. 7:27-25.9(k)2Readily Available $100 $200 $500 $1,500N.J.A.C. 7:27-25.9(l)1Records $500 $1,000 $2,500 $7,500N.J.A.C. 7:27-25.9(l)2Reports $500 $1,000 $2,500 $7,500

N.J.A.C. 7:27-25.9(l)3Non-conforming gasoline and economic benefit $0.5 per gallon 1N.J.A.C. 7:27-25.9(l)4All $100 $200 $500 $1,500N.J.A.C. 7:27-25.9(l)5Submittal $300 $600 $1,500 $4,500]1To determine the penalty due, multiply the per-gallon penalty amount by gasoline sold.

26. - 30. (No change.)

(n) - (p) (No change.)


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