[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1400]
[[Page Unknown]]
[Federal Register: January 20, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MN17-2-5959; A-1-FRL-4828-4]
Approval and Promulgation of Implementation Plan; Carbon
Monoxide; Oxygenated Gasoline Program; Minnesota
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: The USEPA is proposing to approve a State Implementation Plan
(SIP) revision submitted by the State of Minnesota. This revision
implements an oxygenated gasoline program in the Minneapolis-St. Paul
Metropolitan Statistical Area (MSA), and the Duluth-Superior MSA. Both
MSA's are required to implement an oxygenated gasoline program because
of past violations of the carbon monoxide standard. This SIP revision
was submitted to satisfy the requirement of section 211(m) of the Clean
Air Act as amended by the Clean Air Act Amendments of 19909 (the Act),
which requires all carbon monoxide nonattainment areas with a design
value of 9.5 parts per million (ppm) or above based on 1988 and 1989
air quality monitoring data to implement an oxygenated gasoline
program. The effect of this action is to propose approval of the
oxygenated gasoline program. This action is being taken under section
110 of the Act.
DATES: Comments must be received on or before February 22, 1994.
ADDRESSES: Comments may be mailed to John Paskevicz, AE-17J Air
Enforcement Branch, USEPA, 77 West Jackson Blvd., Chicago, Illinois
60604. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the USEPA
Regional office on the 17th floor, at 77 West Jackson Blvd., Chicago.
FOR FURTHER INFORMATION CONTACT:
John Paskevicz, (312) 886-6084.
SUPPLEMENTARY INFORMATION:
I. Introduction: Statutory Requirements and Guidance
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 starting, which are more prevalent in the
winter.
Section 211(m) of the Act requires that certain states submit
revisions to the SIPs and implement oxygenated gasoline programs by 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 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 area(s) is/are prone to
high ambient concentrations of carbon monoxide. Under section
211(m)(2), the oxygenated gasoline requirements apply to 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
duration of the control period, to be established by the USEPA
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. USEPA 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 periods by
area, the USEPA has issued additional guidance related to the
oxygenated gasoline program. Pursuant to the requirements of section
211(m)(5) of the Act on October 20, 1992, the USEPA announced the
availability of oxygenated gasoline credit program guidelines in the
Federal Register.\2\ Under the 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 required oxygen content. Where a credit
program has been adopted, USEPA's guidelines provide that no gallon of
gasoline should contain less than 2.0 percent oxygen by weight.
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\2\See footnote 1. USEPA issued guidelines for credit programs
under section 211(m)(5) of the Act.
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Section 211(m)(4) of the Act requires that any person selling the
oxygenated gasoline label the fuel dispensing system. The USEPA
promulgated the labeling regulations 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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II. Background for this Action: State SIP Revision
The Minneapolis-St. Paul and Duluth-Superior areas in the State of
Minnesota (the control areas) are designated nonattainment for carbon
monoxide and classified as moderate with a design value of 11.4 and 9.9
parts per million respectively, based on 1988 and 1989 data.\4\ Under
section 211(m) of the Act, Minnesota was required to submit a revision
SIP under section 110 and part D of title I of the Act which includes
an oxygenated gasoline program for Minneapolis-St. Paul, and Duluth-
Superior by November 15, 1992.\5\ On November 9, 1992, the
Commissioner, Minnesota Pollution Control Agency, submitted to USEPA a
revised SIP including the oxygenated gasoline program containing rules
that were signed by the Governor on April 29, 1992, and became
effective on August 1, 1992. The USEPA issued a completeness letter to
the State on January 20, 1993. The USEPA 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 June 11, 1993,
which is available from the Region 5 office, listed in the ADDRESSES
section of this proposed rulemaking.
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\4\See ``Designation of Areas for Air Quality Planning
Purposes,'' 56 FR 56694 (November 6, 1991.)
\5\See credit program guidelines in footnote 3, wherein the
November 15, 1992 SIP revision due date was specified.
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Type of Program and Oxygen Content Requirement
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 USEPA
Administrator issued guidelines for credit programs allowing the use of
marketable oxygen credits from gasoline with a higher oxygen content
than required. However, Minnesota has adopted a system of oxygen
content averaging that does not include oxygen credit trading. Each
registered blender must maintain an individual average of 2.7 percent
oxygen for all gasoline shipped into a control area during a control
period. Gasoline sold in the control area during the control period
must contain a minimum of 2.0 percent oxygen. A registrant cannot
accumulate oxygen credits to be traded to other registrants. The
Minnesota requirements to not distinguish between a control area
responsible (CAR) party and blender CAR.\6\ All registrants are
classified as blenders. The following sections of this notice address
some specific elements of the state's submittal. Parties desiring more
specific information should consult the TSD.
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\6\The Implementation Guideline for Oxygenated Gasoline
Programs, published on November 20, 1991, provides a definition of
Control Area Responsible (CAR) party. A CAR party is a person who
owns oxygenated gasoline which is sold or dispensed from a control
area terminal. A blender CAR is a person who owns oxygenated
gasoline which is sold or dispensed from a control area oxygenate
blending facility.
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Applicability and Program and 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 USEPA Administrator. Minnesota has established control periods
consistent with the USEPA guidance. The 1992 carbon monoxide control
period began on November 1, 1992, and extended through January 31,
1993. In subsequent years, the control periods will begin on October 1,
and end after January 31.
All gasoline sold or dispensed for use within the control area and
during the control period must comply with the average 2.7 percent
oxygen content requirement and must contain not less than 2.0 percent
oxygen by weight. The Minnesota program does not include oxygen credit
trading.
Registration Requirements.
The registration requirements for the Minnesota program are similar
to the guidelines established by the USEPA. The State treats all
registrants as averaging blenders. Oxygenated gasoline purchased by a
non-registered party will be counted into the average of the registered
company that sold the product to the retailer or the non-registered
distributor. Each registrant has the option to choose a per gallon
blending method, or an averaging method. The registrant is required to
maintain an average oxygen content of 2.7 percent or greater, for all
gasoline distributed in the control area.
The Minnesota oxygen plan specifies that records of all gasoline-
oxygenate blends, received, sold, or transferred, must be retained for
at least one year after the control period ends. The records must
include the original transfer documents showing the volume of blended
product and the weight percent of oxygen in each blend. The registrant
is required to commission an attestation engagement within 120 days
after the close of the control period. Records are also required to be
kept by non-registered distributors.
All parties in the gasoline distribution network who are located in
or do business within a control area, and whose product is eventually
sold into the control area for the ultimate consumer, are required to
keep records concerning quantity of blend sold and amount of oxygen in
the product. Registered parties are not specifically required by State
law or by rules or procedures to take samples and test the product.
However, the State plan calls for an extensive sampling and testing
program throughout the product lifecycle.
All refineries and terminals that ship gasoline into the control
area will be inspected at least once each month during the control
period by inspectors from the State Weights and Measures Division.
Samples will be taken and tested for minimum oxygen content, and
transfer documents will be inspected to ensure each contains required
information on every batch shipped. At least 20 percent of all
registered distributors and 20 percent of all retailers in the control
area will be inspected/tested by the State.
Under these inspection requirements, refiners and importers are
required to keep a copy of all the tests that are performed on batches
of gasoline prior to shipment, as well as copies of the bills of lading
or transfer documents for each batch. Terminal owners and operators and
CARs are required to keep records of both the gasoline they receive
from upstream parties, as well as copies of all the tests (if any)
performed as part of the shipping documentation and records created
before the gasoline was transferred to a downstream party.
The USEPA guidelines also require that CARs commission an annual
attest engagement,\7\ performed by either an internal auditor or
independent Certified Public Account (CPA). The guidelines also specify
that the standardized forms, specifying agreed-upon procedures for the
conduct of the attest engagement, for use by the internal auditor or
CPA be provided by the state.
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\7\The USEPA does not require an attest engagement in a per
gallon program.
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The State requirement for maintaining records is found in Minnesota
Statute, section 239.791. In addition to the record-keeping
requirement, the registrant must commission an attestation engagement
by a certified public accountant to demonstrate that the blending
records are accurate. The registrant has 120 days after the end of the
control period to report the results of the audit to the State. These
requirements for the State program go beyond the requirements in USEPA
guidelines for a per gallon program but, are acceptable. Comments are
invited on this issue.
Prohibited Activities
The USEPA's credit program guidelines contain provisions designed
to ensure that gasoline that fails to meet the 2.0 percent by weight
minimum oxygen content requirement is not available for use within a
control area. Generally, CARs or blender CARs may not transfer gasoline
for use in a control area that contains less than the minimum percent
of oxygen by weight to parties who are not themselves registered as
CARs or blender CARs. Under USEPA's credit program guidelines,
regulated parties, including refiners, importers, oxygenate blenders,
carriers, distributors, or resellers may not fail to comply with
recordkeeping requirements.\8\
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\8\USEPA's recommended provisions for prohibited activities are
found at pages 59-61 of the credit program guidelines.
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The State enforces a variety of provisions in areas where oxygas is
required. The primary focus is violations of the sale of gasoline
containing less than 2.0 percent oxygen, pumps which are not labeled,
and registrants who cannot produce records of blending or transfer
records or shipping manifests.
Transfer Documents
The USEPA's credit program guidelines specify that transfer
documents should include the following information: date of the
transfer, name and address of the transferor, and name and address of
the transferee, the volume of gasoline which is being transferred, the
proper identification of the gasoline as oxygenated or nonoxygenated,
the location of the gasoline at the time of the transfer, the type of
oxygenate, and the oxygen content of the gasoline (for transfer
upstream of the control area terminal and for transfers between CARs,
include the oxygenate volume of the gasoline). Records are to be kept
in a location where they are available for state review.
Minnesota's enforcement plan instructs investigators to inspect
transfer documents to ensure they contain information regarding the
quality and destination of the gasoline. Registration forms and oxygen
units worksheets contain an adequate amount of information regarding
the fuel and the registrants. The State's operation manual for
distributors, refinery operators and terminal operators requires
detailed record keeping and auditing to meet the requirements of the
State legislation. These requirements go beyond what is required for
the Minnesota program but, are acceptable to the USEPA.
Enforcement and Penalty Schedules
State oxygenated gasoline regulation must be enforceable by the
state oversight agency. The USEPA recommends that states will visit at
least 20 percent 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.
Minnesota Statutes contain a graduated penalty schedule for
violations of any of the winter oxygas requirements. Violation of any
of the requirements is a criminal offense, punishable as a misdemeanor.
The State retains discretionary authority to apply the graduated
penalty schedule including the authority to: issuing written warnings,
issue stop sale orders, lock or seal any gasoline dispenser, and
request a misdemeanor complaint against a violator.
At least 20 percent of the registered distributors will be
inspected during the control period, and samples will be taken of each
product at the facility, according to the State procedure. Samples will
be analyzed by the State at the State laboratory using gas
chromatography and a thermal conductivity detector following an
unspecified ASTM test method. Similarly, retail gasoline stations will
be inspected and samples taken during the control period. Approximately
20 percent of the retail outlets in the control area will be visited
during the control period.
Inspections, which will be unannounced and at random, will include,
in addition to sample collection, a visual check to ensure pumps are
properly labeled, that transfer documentation is on hand, and that only
oxygenated gasoline has been received during the control period.
Test Methods and Laboratory Review
The USEPA's sampling procedures are detailed in appendix D of 40
CFR part 80. The USEPA has recommended, in its credit program
guidelines, that states adopt these sampling procedures. Minnesota has
not adopted USEPA sampling procedures. However, the State does intend
to attempt a statistical validation which it will send to USEPA for
approval.
Each state regulation must include a test method. The USEPA
guidelines recommend the use of the OFID test, although parties may
elect to use ASTM-D4815-89 or another method, if approved by the USEPA.
Minnesota has elected to use an unspecified ASTM test method using gas
chromatography with a thermal conductivity detector and the appropriate
ASTM test method to determine oxygen content. The State will also use a
contractor where needed if the sample is expected to contain a non-
ethanol oxygenate. The State is also expected to use a field screening
method based on a near infra-red spectrophotometer. Information from
these tests will be sent to the USEPA for statistical validation as a
primary oxygenate test method.
The USEPA has established an interim testing tolerance, which
states appropriate ranges for credit and per-gallon programs.\9\ As
USEPA states in that memorandum, the purpose of the testing in a credit
program is to determine if a sample meets the 2.0 percent minimum
oxygen content requirement and to determine whether the documentation
that accompanies that gasoline is correct. For a per-gallon program,
the purpose of the testing is to determine whether the gasoline
contains less than 2.7 percent oxygen by weight. Minnesota has not
provided a description of its testing tolerance.
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\9\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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Labeling
The USEPA was required to promulgate Federal labeling regulations
under section 211(m)(4) of the Act. These regulations were published in
the Federal Register on October 20, 1992\10\. The Minnesota requirement
for labeling is consistent with that of the USEPA. The USEPA's review
of the material indicates that the State of Minnesota has adopted an
oxygenated gasoline regulation substantially in accordance with the
requirements of the Act. The USEPA is proposing to approve the
Minnesota SIP revision for an oxygenated gasoline program, which was
submitted on November 9, 1992. The USEPA is soliciting public comments
on the issues discussed in this notice or on other relevant matters.
Comments regarding program operation during the first and subsequent
years of operation of the oxygenated gasoline program are invited.
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\10\See footnote 3.
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These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the USEPA Regional office listed in
the ADDRESSES section of this notice.
III. Proposed Action
The USEPA proposes to approve the oxygenated gasoline program
revision to the Minnesota SIP. Public comment is solicited on the
USEPA's proposed rulemaking action. Comments received on or before
February 22, 1994 will be considered in the development of the final
rulemaking.
This action is 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
(54 FR 2222) from the requirements 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.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the
USEPA 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, the USEPA 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 populations
of less than 50,000. The USEPA certifies that this rule, which merely
approves state requirements that are already in place, will not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: January 7, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-1400 Filed 1-19-94; 8:45 am]
BILLING CODE 6560-50-F-M
