[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-616]
[[Page Unknown]]
[Federal Register: January 11, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO21-1-5685; CO21-1-5110; A-1-FRL-4824-6]
Approval and Promulgation of Air Quality Implementation Plans for
the State of Colorado; Oxygenated Gasoline Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP)
revisions submitted by the State of Colorado. The Colorado revisions
include revisions to Regulation No. 13 (oxygenated gasoline program)
submitted on August 6, 1990 and November 27, 1992, implementing and
amending oxygenated gasoline programs in the Fort Collins-Loveland,
Colorado Springs, and Boulder-Denver Metropolitan Statistical Areas
(MSA) as required by section 211(m) of the Clean Air Act, as amended by
the Clean Air Act Amendments of 1990 (the Act). This action is being
taken under section 110 of the Clean Air Act.
DATES: Comments must be received on or before February 10, 1994.
ADDRESSES: Comments may be mailed to: Doug Skie, Chief, Air Programs
Branch, Air, Radiation and Toxics Division (8ART-AP), Environmental
Protection Agency, Region 8, 999 18th Street, Suite 500, Denver,
Colorado 80202-2466. Copies of the documents relevant to this action
are available for public inspection during normal business hours at
United States Environmental Protection Agency, Region 8, 999 18th
Street, Suite 500, Denver, Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Scott P. Lee, State Implementation
Plan Section (8ART-AP), Air Programs Branch, US Environmental
Protection Agency, Region 8, Denver, Colorado 80202-2466, (303) 293-
1887.
SUPPLEMENTARY INFORMATION:
A. Background for This Action Regarding Section 211(m) of the Act
Motor vehicles are significant contributors of carbon monoxide
emissions. An important measure toward reducing these emissions is the
use of cleaner-burning oxygenated gasoline. Extra oxygen enhances fuel
combustion and helps to offset fuel-rich operating conditions,
particularly during vehicle starts, which are more prevalent in the
winter.
Section 211(m) of the Act requires that various states submit
revisions to their SIPs, and implement oxygenated gasoline programs no
later than November 1, 1992. This requirement applies to all states
with carbon monoxide nonattainment areas with design values of 9.5
parts per million or more based generally on 1988 and 1989 data. Each
state's oxygenated gasoline program must require gasoline for the
specified control area(s) to contain not less than 2.7 percent oxygen
by weight during that portion of the year in which the areas are prone
to high ambient concentrations of carbon monoxide. Under section
211(m)(2), the oxygenated gasoline requirements are to generally cover
all gasoline sold or dispensed in the larger of the Consolidated
Metropolitan Statistical Area (CMSA) or the Metropolitan Statistical
Area (MSA) in which the nonattainment area is located. Under section
211(m)(2), the length of the control period, to be established by the
EPA Administrator, shall not be less than four months unless a state
can demonstrate that, because of meteorological conditions, a reduced
control period will assure that there will be no carbon monoxide
exceedances outside of such reduced period. EPA announced guidance on
the establishment of control periods by area in the Federal Register on
October 20, 1992.1
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\1\See ``Guidelines for Oxygenated Gasoline Credit Programs and
Guidelines on Establishment of Control Periods under section 211(m)
of the Clean Air Act as Amended--Notice of Availability,'' 57 FR
47849 (October 20, 1992).
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In addition to the guidance on establishment of control period by
area, EPA has issued guidance related to the oxygenated gasoline
program. On October 20, 1992, EPA announced the availability of
oxygenated gasoline credit program guidelines in the Federal
Register.2 Under a credit program, marketable oxygen credits may
be generated from the sale of gasoline with a higher oxygen content
than is required (i.e., an oxygen content greater than 2.7 percent by
weight). These oxygen credits may be used to offset the sale of
gasoline with a lower oxygen content than is required. Where a credit
program has been adopted, EPA's guidelines provide that no gallon of
gasoline should contain less than 2.0% oxygen by weight.
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\2\See footnote 1. EPA issued guidelines for credit programs
under section 211(m)(5) of the Act.
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EPA issued labeling regulations under section 211(m)(4) of the Act.
These labeling regulations were published in the Federal Register on
October 20, 1992.3
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\3\See ``Notice of Final Oxygenated Fuels Labeling Regulations
under section 211(m) of the Clean Air Act as Amended--Notice of
Final Rulemaking,'' 57 FR 47769. The labeling regulations may be
found in 40 CFR 80.35.
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The Oxygenated Gasoline Program areas in the State of Colorado are
designated nonattainment for carbon monoxide and classified as moderate
with design values of 11.3, 11.8, and 16.2 parts per million,
respectively, for the Fort Collins-Loveland control area, the Colorado
Springs control area, and the Boulder-Denver4 control area, based
on 1988 and 1989 data.5 Under section 211(m) of the Act, Colorado
was required to submit a revised SIP, meeting the criteria specified in
section 110 and part D of title I of the Act, which includes oxygenated
gasoline programs for the Fort Collins-Loveland MSA, the Colorado
Springs MSA, and the Boulder-Denver MSA, by November 15, 1992.6 On
November 27, 1992, Roy Romer, Governor of Colorado, submitted to EPA a
revised SIP including the oxygenated gasoline program that was adopted
by the State on September 17, 1992, which updates the State's existing
oxygenated gasoline program based on the criteria outlined in EPA's
program guidance. EPA summarizes its analysis of the state submittal
below. A more detailed analysis of the state submittal is contained in
a Technical Support Document (TSD) dated September 25, 1993, which is
available from the Region 8 office, listed in the Addresses section.
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\4\See credit program guidelines in footnote 3, wherein the
November 15, 1992 SIP revision due date was specified.
\5\See ``Designation of Areas for Air Quality Planning
Purposes,'' 56 FR 56694 (November 6, 1991).
\6\See credit program guidelines in footnote 3, wherein the
November 15, 1992 SIP revision due date was specified.
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1. Type of Program and Oxygen Content Requirement
As discussed above, section 211(m)(2) of the Act requires that
gasoline sold or dispensed for use in the specified control areas
contain not less than 2.7 percent oxygen by weight. Under section
211(m)(5), the EPA Administrator issued guidelines for credit programs
allowing the use of marketable oxygen credits. The State of Colorado,
by the authority of the Air Quality Control Commission (AQCC), has
elected to adopt a regulation requiring 2.7% oxygen content for each
gallon of gasoline sold in a control area, not allowing for the use of
marketable oxygen credits. The following sections of this notice
address some specific elements of the State's submittal. Parties
desiring more specific information should consult the TSD.
2. Applicability and Program Scope
Section 211(m)(2) requires oxygenated gasoline to be sold during a
control period based on air quality monitoring data and established by
the EPA Administrator. Colorado has established control periods
consistent with the EPA guidance. The control period for all of
Colorado's affected areas begins on the first day of November each year
and ends following the last day of February. Colorado State oxygenated
gasoline regulations require oxygenated gasoline to be sold in the Fort
Collins-Loveland MSA, the Colorado Springs MSA, and the Boulder-Denver
MSA, consistent with the requirements of section 211(m)(2) of the Act.
3. Transfer Documents
Colorado has no requirements related to transfer documentation in
its oxygenated gasoline regulation. EPA feels that the State's policy
of presumptive liability provides the incentive for all parties to
ensure gasoline meets the oxygen content requirements of the program.
In lieu of transfer documentation indicating oxygen content, the State
provides for presumptive liability on the part of the party in
possession of gasoline found to be in violation of the required oxygen
content, and allows for no defenses. The State has historically
inspected refineries, bulk fuel storage plants, fuel distribution
plants, pipelines, and retail station for fuel compliance, holding all
parties responsible to meet oxygen content requirements for gasoline in
their possession.
4. Enforcement and Penalty Schedules
State oxygenated gasoline regulations must be enforceable by the
state oversight agency. EPA recommends that states visit at least 20%
of regulated parties during a given control period. Inspections should
consist of product sampling and record review. In addition, each state
should devise a comprehensive penalty schedule. Penalties should
reflect the severity of a party's violation, the compliance history of
the party, as well as the potential environmental harm associated with
the violation.
The Colorado oxygenated gasoline regulation is legally enforceable
by the Colorado Department of Health, Division of Air Pollution Control
(APCD). The APCD is committed to the enforcement of this program
requiring a level of sampling greater than EPA's recommendation for the
sampling of 20% of all oxygenated gasoline dispensing sites. Violation
of this regulation results in a civil penalty not to exceed $25,000 per
day of violation. The APCD considers three factors when assessing
penalties: the penalty constraint; the economic benefit of
noncompliance; and a gravity component taking into consideration the
intentional nature of the violation, whether the violator cooperated
with the APCD, whether a repeat violation has occurred, the actual
oxygen content of the sample, and an other relevant factors as detailed
in the Oxygenated Gasoline Program Policy and Procedure Manual
(Procedure Manual), published by the Colorado Department of Health, Air
Pollution Control Division, October 1992. Penalty authority is
contained in section 25-7-122 C.R.S.
5. Test Methods and Laboratory Review
Each state regulation must include a test method. EPA's guidelines
recommend the use of the OFID test, although parties may elect to use
ASTM-D4815-89 or another method, approved by EPA.
EPA has tentatively approved a variation of the ASTM-D4815-89
testing method for use in Colorado, as detailed in the Procedure
Manual. The State may continue to use this testing method unless
otherwise instructed by EPA.
EPA has established an interim testing tolerance, which states
appropriate ranges for credit and per-gallon programs.7 As EPA
states in the memorandum, for a per-gallon program, such as adopted by
Colorado, the purpose of the testing is to determine whether the
gasoline contains less than 2.7 percent oxygen by weight. Colorado is
using testing tolerances consistent with the tolerances in the EPA
memo.
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\7\See Memorandum dated October 5, 1992 from Mary T. Smith,
Director, Field Operations and Support Division to State/Local
Oxygenated Fuels Contacts.
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6. Labeling
EPA was required to issue Federal labeling regulations under
section 211(m)(4) of the Act. These regulations, published in the
Federal Register on October 20, 19928, required the following
statement be posted for a per-gallon program or credit program with
minimum oxygen content requirement:
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\8\See footnote 3.
``The gasoline dispensed from this pump is oxygenated and will
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reduce carbon monoxide pollution from motor vehicles.''
The Federal regulation also specifies the appearance and placement
requirements for the labels.
EPA has strongly recommended that states adopt their own labeling
regulations, consistent with the Federal regulation. Colorado has
adopted labeling regulations which conform to Federal regulation.
B. Background for This Action Regarding Regulation No. 13 Prior to
the Requirements of Section 211(m) of the Act
On August 6, 1990, the Governor of Colorado submitted additional
revisions to Regulation No. 13. The Regulation 13 amendments were
necessary because the Colorado Air Pollution Control Division (APCD)
found that progress toward attaining the carbon monoxide (CO) standard
was not adequate to meet the December 31, 1987, Clean Air Act deadline.
The August 6, 1990, revisions required between December 1 and March 1
of each winter season, a 2.6 percent level of oxygen for all gasoline
except premium unleaded.
EPA recognizes that this, August 6, 1990, revision to Regulations
No. 13 does not meet EPA's current guidance for oxygenated gasoline
programs. However, Colorado's present SIP revision, November 27, 1993,
for the oxygenated gasoline program amends the State's existing
program, which includes elements that were contained in the past SIP
revision, August 6, 1990. EPA is also proposing to approve this past
revision, in order for the SIP to be considered fully approved.
Request for Public Comment
The EPA is soliciting public comments on this notice and on issues
relevant to EPA's proposed action. Comments will be considered before
taking final action. Interested parties may participate in the Federal
rulemaking procedure by submitting written comments to the address
above. Comments must be received on or before February 10, 1994.
Proposed Action
EPA is proposing to approve the revisions to the Colorado SIP for
both Regulation No. 13 (oxygenated gasoline program) revisions, meeting
the requirements of section 211(m) of the Act.
Executive Order
This action has been classified as a Table 2 Action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of
Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions
from the requirement of section 3 of Executive Order 12291 for a period
of two years. The USEPA has submitted a request for a permanent waiver
for Table 2 and Table 3 SIP revisions. The OMB has agreed to continue
the waiver until such time as it rules on USEPA's request. This request
continues in effect under Executive Order 12866 which superseded
Executive Order 12291 on September 30, 1993.
Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over population of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A. 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping requirements, Sulfur dioxide.
Authority: 42 U.S.C. 7401-7671q.
Dated: December 10, 1993.
Jack McGraw,
Acting Regional Administrator.
[FR Doc. 94-616 Filed 1-10-94; 8:45 am]
BILLING CODE 6560-50-F
