[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\See footnote 1. EPA issued guidelines for credit programs 
under section 211(m)(5) of the Act.
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \7\See Memorandum dated October 5, 1992 from Mary T. Smith, 
Director, Field Operations and Support Division to State/Local 
Oxygenated Fuels Contacts.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \8\See footnote 3.

    ``The gasoline dispensed from this pump is oxygenated and will 
---------------------------------------------------------------------------
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