[Federal Register Volume 60, Number 105 (Thursday, June 1, 1995)]
[Proposed Rules]
[Pages 28557-28560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13430]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN-28-1-6163; FRL-5213-7]


Approval and Promulgation of Implementation Plans; Minnesota 
Carbon Monoxide Contingency Measure

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

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SUMMARY: The USEPA is proposing to approve the carbon monoxide (CO) 
contingency measure as a revision to the Minnesota State Implementation 
Plan (SIP) in the Twin-Cities area. This area is designated moderate 
nonattainment for CO. It includes the Twin Cities of Minneapolis-Saint 
Paul and the following counties which comprise the CO control area: 
Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, Scott, 
Washington, and Wright. The USEPA action is based upon a request that 
was submitted by the State to satisfy the requirement of section 
172(c)(9) of the Clean Air Act as amended in 1990 (CAAA). This section 
of the CAAA requires States with areas designated moderate or above CO 
or ozone nonattainment to submit contingency measures by November 15, 
1993. These measures must take effect, without further action by the 
State or the USEPA, if an area fails to make reasonable further 
progress or to attain by the attainment date. The State submittal meets 
this requirement, of no further action to implement, because the State 
legislation that authorizes this measure requires the use of oxygenated 
gasoline on a year-round basis beginning October 31, 1995, in areas 
classified as CO control areas. In the State's plan no trigger event is 
required. Ethanol is expected to be the primary oxygenate in this area 
and will in large part be used to meet the year-round oxygenate 
requirement. Thus, in addition to the benefits from the reduction of CO 
emissions through the use of oxygenated gasoline, the expected use of 
ethanol in implementing this contingency measure is consistent with the 
longstanding Federal policy of using renewable fuels for a positive 
energy impact and the reduction of emissions of greenhouse gases.

DATES: Comments on this SIP revision and on the proposed USEPA 
rulemaking action must be received by July 3, 1995, to be considered in 
the development of the USEPA's final rulemaking action.

ADDRESSES: Written comments should be addressed to: William L. 
MacDowell, Chief, Regulation Development Section, Air Enforcement 
Branch (AE-17J), United States Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Copies of the revision request and USEPA's analysis are available 
for public inspection during normal business hours at the following 
addresses: United States Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago, 
Illinois 60604; and Office of Air and Radiation (OAR), Docket and 
Information Center (Air Docket (6102) Room M1500, United States 
Environmental Protection [[Page 28558]] Agency, 401 M Street SW. 
Washington, D.C., 20460.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Air Enforcement 
Branch, Regulation Development Section (AE-17J), United States 
Environmental Protection, Region 5, Chicago, Illinois 60604, (312) 886-
6084.

SUPPLEMENTARY INFORMATION:

I. Statutory Requirements and Guidance

    For moderate CO nonattainment areas with design values of 12.7 
parts per million (ppm) or less, section 172(c)(9) of the CAAA requires 
States to submit SIP revisions containing contingency measures, which 
are due by November 15, 1993, under section 172(b) of the CAAA. These 
provisions require contingency measures to take effect automatically, 
without further rulemaking action by the State or the Administrator, in 
the event the area fails to attain the national standard by the 
applicable attainment date. Certain actions, such as notification of 
the affected community, resource allocation, etc., would probably be 
needed before a measure could be implemented effectively. States must 
show that their contingency measures can be implemented with minimal 
further action on their part and with no additional rulemaking actions. 
The USEPA believes that, to be beneficial, contingency measures must be 
implemented within twelve months following a finding of failure to 
attain the CO national ambient air quality standard. States must show 
that their contingency measures can be implemented with minimal further 
action on their part and with no additional rulemaking actions.1

    \1\  See Contingency measure guideline document ``Technical 
Support Document to Aid States With the Development of Carbon 
Monoxide SIPs, EPA-452/R-92-003, dated July 1992.
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    The Twin-Cities CO nonattainment area is a moderate area with a 
design value of 11.4 ppm for CO. Thus, under section 172(c)(9), 
Minnesota is required to submit a SIP revision containing contingency 
measures satisfying the above criteria. In this action, USEPA proposes 
to approve the State's submission as satisfying the CAAA requirements.

II. Summary of State Submittal and Analysis

Description of the Submittal

    On November 12, 1993, the Commissioner of the Minnesota Pollution 
Control Agency submitted elements of a contingency measure SIP revision 
for the moderate CO nonattainment area in the Twin-Cities area of the 
State. This area includes the following counties which comprise the CO 
control area: Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, 
Scott, Washington, and Wright.2 The contingency measure expands 
the current four month wintertime oxygenated gasoline program to a 
year-round oxygenated gasoline program. On January 25, 1994, the USEPA 
issued a completeness letter noting the submittal was complete except 
for two items of information: the results of the public hearing 
process; and a report of the results of a study concerning the year-
round use of ethanol as the oxygenate and its effect on summertime 
ozone concentrations. The USEPA received the results of the public 
hearing process in a letter from the Commissioner of the MPCA on 
January 26, 1994, which demonstrated that the State had carried out the 
public process. The State also submitted on that date a report prepared 
by an environmental contractor regarding the year-round use of ethanol 
in the State.

    \2\ St. Louis County (in the Duluth-Superior, Wisconsin MSA) was 
redesignated to attainment for carbon monoxide on April 14, 1994. 
The maintenance plan contains a 'park and ride' measure to reduce 
vehicle miles traveled in the event maintenance cannot be assured. 
If the first choice measure (park and ride) does not succeed in 
reducing the CO concentrations, the State will consider the 
implementation of an oxygenated gasoline program.
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    The USEPA believes the State's year-round oxygenated gasoline 
requirement complies with the criteria for contingency measures. The 
program will be implemented in the event the area fails to reach 
attainment by 1996 because the program will go into effect on October 
31, 1995. Also, all provisions of the program were adopted and 
enforceable prior to submittal to the USEPA on November 15, 1993. This 
contingency measure will produce emissions reductions during the 
portion of the year that the current wintertime oxygenated fuels 
program does not address. While there has not been a violation of the 
CO air quality standard since 1991, a significant number of exceedances 
contributing to a violation of the health standard between 1987 and 
1991 were registered outside of the current four month program period. 
The current oxygenated gasoline program appears to be effectively 
reducing emissions of CO during the period of the year it is in effect. 
Therefore, USEPA believes the CO emissions reductions achieved by the 
expansion of the program throughout the rest of the year would be an 
important contribution to attaining the standard, in the event that the 
area fails to attain by the deadline. Thus, USEPA believes that it is 
appropriate to approve the revision.
    An issue has been raised whether section 110(l) of the CAAA would 
prevent USEPA from approving the revision because of the potential that 
the year round oxygenate requirement would adversely affect summertime 
ozone levels. Section 110(l) bars the Administrator from approving a 
plan revision if the revision would interfere with any applicable 
requirement concerning attainment of a standard and reasonable further 
progress, or any other applicable requirement of the CAAA. The concern 
arises here because it is expected that ethanol, the primary oxygenate 
used in the blending program, will increase the emission of volatile 
organic compounds, which are ozone precursors, from the gasoline-
ethanol blend.
    Ethanol comprises over 65 percent of the market share for 
oxygenates in the Twin-Cities area. Splash blending of ethanol in 
gasoline increases the evaporative emissions of hydrocarbons, and 
section 211(h)(4) of the CAAA allows a one pound per square inch (psi) 
waiver of the vapor pressure limit on gasoline for ethanol blends. 
Increased evaporative hydrocarbon emissions could produce higher 
summertime ambient ozone concentrations in the area, potentially 
exceeding the National Ambient Air Quality Standard for ozone.
    The USEPA requested that the State submit the report on year-round 
use of the ethanol blended gasoline in order to evaluate this potential 
problem.
    While the Twin-Cities area is in attainment for ozone, it is 
difficult to accurately predict the effect that an increase in RVP 
resulting from increased summertime ethanol use will have on ambient 
ozone concentrations. The lower exhaust VOC and CO emissions resulting 
from the use of ethanol are believed to have some effect moderating the 
impact of increases in evaporative emissions of ethanol blends. Also, 
an increase is limited to the effects of a one psi increase in the 
vapor pressure limit for gasoline. In this case it is believed the use 
of ethanol year-round will have a positive impact on summertime ambient 
concentrations of carbon monoxide.3 The State does not believe the 
year-round program will adversely affect ambient ozone concentrations. 
The State has indicated it will continue to evaluate the material 
[[Page 28559]] available on the issue, especially the comments made by 
the USEPA regarding the consultant's report.4 While USEPA 
questions some of the conclusions in the report by the environmental 
consultant on this issue, it believes the potential for reduced carbon 
monoxide exceedances during the summer months and the positive energy 
benefits of the use of renewable fuels outweigh the uncertain potential 
for increased ozone concentrations. At this time, USEPA does not have 
enough information to indicate a likely increase in ozone sufficient to 
move the area into nonattainment for ozone, which would be a basis for 
disapproval.

    \3\  Internal staff communication concerning past summertime 
exceedances of the carbon monoxide standard in Minnesota.
    \4\  Note dated July 20, 1994, from Paul Machiele, USEPA, Ann 
Arbor commenting on the report entitled ``Ozone Impact of Year-Round 
Oxy-Fuel Program in Minnesota'', G. Whitten, B. Austin, K. O'Conner, 
Systems Application International, sysapp94-93/246rl, January 10, 
1994.
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    The remainder of the State's submittal is similar in content to the 
original document submitted for the oxygenated gasoline program dated 
November 9, 1992, which USEPA approved on October 4, 1994 (59 FR 
50493). The major difference is that this contingency measure is a 
year-round oxygenated gasoline program as opposed to the four month 
wintertime only program. The State's procedures document details the 
manner in which the program must be carried out. The USEPA is also 
concerned about the extent and vigor of the enforcement program to 
ensure oxygen content. The USEPA believes that if tax supports for the 
use of renewable fuels are reduced, resources for enforcement will 
become critical to the effectiveness of the program. Without tax 
credits or other forms of price support, the cost of using ethanol will 
increase and retailers and/or blenders will have an incentive to reduce 
their costs by not blending. The State and interested parties are 
requested to respond to this concern.
    The wintertime oxygenated gasoline program submitted in November 
1992, was made final on October 4, 1994, (59 FR 50493). The program 
requires that gasoline sold in the CO control area contain a minimum of 
2.0 weight percent oxygen and must average 2.7 weight percent oxygen 
during the control period. The program does not include oxygen credit 
trading. Under the revised program, these provisions and all other 
aspects of the oxygenated gasoline program will apply year-round. 
Persons interested in more details on the year-round program are 
invited to review the State's wintertime oxygenated gasoline program 
and the USEPA analysis of it published on January 20, 1994, (59 FR 
3047), or contact the Minnesota Pollution Control Agency, which is 
responsible for the SIP revision.
    The oxygenated gasoline program requires reports to be submitted by 
registered blenders at the end of the control period. For the year-
round program the end of the control period for reporting purposes has 
not been defined in the State's legislation. The USEPA believes this 
minor deficiency can be overcome through an administrative order.

III. Summary

    The USEPA believes the State's contingency measure CO SIP meets the 
requirements of section 172(c)(9) of the Act, was submitted promptly, 
and contains all of the required elements to reduce the emissions of 
CO. Because State legislation requires a year-round oxygenated gasoline 
program to be in operation beginning in October 1995, it does not 
require a triggering event for startup, and the USEPA believes there 
are no other regulatory provisions needed to fully implement the 
program. The State already has a seasonal oxygenated gasoline program 
in place. This will simply be expanded to a year-round program, which 
has been developed and will be implemented and enforced by the same 
State administrative agencies.
    The USEPA believes this plan meets the requirements for approval as 
a contingency measure for the control of CO emissions and proposes to 
approve the State plan. However, as noted above, there are a number of 
items the USEPA believes should be addressed. Interested parties are 
invited to comment on the following issues: potential for increases in 
ozone concentrations during the summertime resulting from the use of 
renewable oxygenates, the impact on the potential for cheating in the 
event tax supports for the use of ethanol are no longer available, and 
the need to define an end point for reporting purposes in the annual 
program.

IV. Rulemaking Action

    The USEPA is proposing to approve the State of Minnesota 
contingency plan to control the emissions of carbon monoxide in the 
nonattainment area of the Twin Cities area. The USEPA will take final 
action on this notice following analysis of public comments on this 
proposal.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. USEPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Executive Order 12866

    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), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. The Office of Management and Budget exempted this 
regulatory action from Executive Order 12866 review.

Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, 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.
    SIP approvals under section 110 and subchapter I, Part D of the 
CAAA 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 CAAA, preparation of a regulatory flexibility analysis would 
constitute federal inquiry into the economic reasonableness of state 
action. The CAAA forbids USEPA to base its actions concerning SIPs on 
such grounds. Union Electric Co. v. USEPA, 427 US 246, 256-66 (S.Ct. 
1976); 42 U.S.C. 7410(a)(2).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995, signed into law on March 22, 1995, USEPA must undertake 
various actions in association with proposed or final rules that 
include a Federal mandate that may result in estimated costs of $100 
million or more to the private sector, or to State, local, or tribal 
governments in the aggregate.
    Through submission of the state implementation plan or plan 
revisions approved in this action, the State has elected to adopt the 
program provided for under section 110 of the Clean Air Act. The rules 
and commitments being approved in this action may bind State, local and 
tribal governments to perform [[Page 28560]] certain actions and also 
may ultimately lead to the private sector being required to perform 
certain duties. To the extent that the rules and commitments being 
approved by this action will impose or lead to the imposition of any 
mandate upon the State, local or tribal governments either as the owner 
or operator of a source or as a regulator, or would impose or lead to 
the imposition of any mandate upon the private sector, EPA's action 
will impose no new requirements; such sources are already subject to 
these requirements under State law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action. The USEPA has also determined that this action does 
not include a mandate that may result in estimated costs or $100 
million or more to State, local, or tribal governments in the aggregate 
or to the private sector.
    Under Section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 31, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon monoxide, Hydrocarbons, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671(q).

    Dated: May 17, 1995.
Michelle Jordan,
Acting Regional Administrator.
[FR Doc. 95-13430 Filed 5-31-95; 8:45 am]
BILLING CODE: 6560-50-P