[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24712-24715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12352]



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


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[AK6-1-6587; FRL-5465-2]


Approval and Promulgation of State Implementation Plans: Alaska

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a State Implementation Plan (SIP) revision submitted 
by the State of Alaska on March 24, 1994 which implements an oxygenated 
gasoline program in the Municipality of Anchorage. This SIP revision 
satisfies certain Federal requirements for carbon monoxide (CO) 
nonattainment areas with a design value of 9.5 parts per million (ppm) 
or greater to implement an oxygenated gasoline program. Motor vehicles 
are significant contributors of CO emissions. An important measure for 
reducing these emissions is the use of cleaner burning oxygenated 
gasoline.

EFFECTIVE DATE: This final rule is effective on June 17, 1996.

ADDRESSES: Copies of the State's request and other information 
supporting this action are available for inspection during normal 
business hours at the following locations: EPA, Office of Air Quality, 
1200 Sixth Avenue, Seattle, Washington 98101, and the Alaska Department 
of Environmental Conservation, 410 Willoughby, Suite 105, Juneau, 
Alaska 99801-1795.

FOR FURTHER INFORMATION CONTACT: Ms. Montel Livingston, EPA, Office of 
Air Quality, Seattle, Washington, (206) 553-0180.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 211(m) of the Clean Air Act, as amended (the 
``Act''), Alaska was required to submit a revised SIP under section 110 
and part D of title I that includes an oxygenated gasoline program for 
its CO nonattainment areas (those areas with a design value of 9.5 ppm 
or greater). The CO standard is 9 ppm and was established based on 
criteria which allows for an adequate margin of safety to protect human 
health. The 9 ppm standard is intended to keep carboxyhemoglobin levels 
below 2.1% in order to protect the most sensitive members of the 
general population (i.e. individuals with heart disease and other 
physiological weaknesses).
    Motor vehicles are significant contributors of CO emissions. An 
important measure for 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.
    To comply with the Act, Alaska implemented an oxygenated gasoline 
program containing methyl tertiary butyl ether (MTBE) as the oxygenate 
in the early winter of 1992. Shortly thereafter, the State received 
numerous health and driveability complaints from the public regarding 
exposure to and use of MTBE blended gasoline. In December 1992 the 
Governor of Alaska temporarily suspended the oxygenated fuel program, 
and the suspension continued the following winter.
    During this suspension, a series of studies began which examined 
issues including health and driveability at cold temperatures using 
oxygenated gasoline in climate fluctuations such as the Municipalities 
of Anchorage and Fairbanks experience. These studies were initiated in 
part by the Alaska Department of Environmental Conservation (ADEC) and 
in part by State health officials in Alaska who invited the Centers for 
Disease Control and Prevention and others to assist in investigation of 
possible health effects. Studies concluded that pumping the ethanol 
blend does not appear to increase the prevalence of acute adverse 
health effects or unusual exposures when compared to pumping regular 
gasoline. Data also showed there were no adverse driveability effects 
utilizing ethanol in Anchorage during the study period.
    In response to the public's concerns about MTBE, Anchorage, through 
ADEC and the industry providers, agreed to implement an oxygenated fuel 
program using ethanol as the oxygenate rather than MTBE by diluting 
regular unleaded gasoline with ethanol to 10 percent ethanol by volume. 
This oxygenated fuel program began in Anchorage in January 1995 and 
lasted for about three months. This initial control period for 
Anchorage using an ethanol blend was successful with the general public 
and for air quality--there were no exceedances of the CO National Air 
Ambient Quality Standards (NAAQS) during that period. The program 
resumed again in the winter of 1995-96, November 1, 1995 through 
February 29, 1996.
    The State of Alaska submitted the Oxygenated Gasoline Requirements 
(18 AAC 53.005-18 AAC 53.190) with amendments adopted through March 19, 
1994, to EPA on March 24, 1994, as a revision to the Alaska SIP. EPA 
reviewed the submittal and concluded that the revision met the 
applicable requirements of the Act. In a direct final rule published 
October 24, 1995, EPA approved the revision to be effective on December 
26, 1995, unless EPA received adverse or critical comments by November 
24, 1995 (see 60 FR 54435). In the same Federal Register, EPA also 
published an accompanying proposed rule (see 60 FR 54465), explaining 
that if EPA received adverse comments on the direct final rule 
approving ADEC's submittal re the oxygenated gasoline program, then EPA 
would withdraw the direct final rule and would respond to all comments 
on the proposal in a subsequent final rule. The proposed action also 
indicated that anyone wishing to comment should do so by November 24, 
1995.
    EPA received an adverse comment on November 22, 1995, pertaining to 
its approval of Alaska's SIP submittal. The

[[Page 24713]]

direct final rule was withdrawn on December 14, 1995. See 60 FR 64135. 
EPA has thoroughly considered the comment to determine the appropriate 
action on the oxygenated gasoline program for Anchorage, Alaska and 
responds below in the ``Response to Comments.''
    In conclusion, EPA is approving the oxygenated gasoline 
requirements submitted by the State of Alaska as described in the 
October 24, 1995 Federal Register notice at 60 FR 54436 and proposed in 
the October 24, 1995 Federal Register notice at 60 FR 54465.

II. Response to Comments

A. General Legal Authority

    In objecting to several specific provisions in Alaska's 
regulations, the commenter raised issues regarding approval into a SIP 
of state provisions not required by section 211(m). EPA may approve 
into a SIP any lawful provision concerning control of a criteria 
pollutant that is submitted by a state and that otherwise meets the 
requirements of section 110. As a general matter, apart from the 
exceptions cited in section 116, the Clean Air Act (CAA) does not 
restrict a state's authority to impose air pollution controls in 
addition to those required under the Act. See CAA section 116. Section 
211(m) establishes certain minimum requirements regarding oxygen 
content, but does not itself prohibit states from adopting additional 
requirements. While federal regulation of fuels under section 211(c)(1) 
preempts certain state regulations regarding fuels, where there is no 
federal ``control or prohibition applicable to [a] characteristic or 
component of a fuel or fuel additive,'' a state is not preempted from 
regulating such characteristic or component, such as oxygen content. 
See section 211(c)(4). Under EPA's current interpretation of section 
211(c)(4), there is no federal requirement applicable to oxygen content 
in gasoline in the Anchorage area because the only federal regulation 
applicable to oxygen content is for reformulated gasoline, which is not 
required in the Anchorage area. Thus, EPA may approve as a SIP revision 
a requirement by Alaska that goes beyond the requirements of section 
211(m) in regulating oxygen content.

B. Temporary Suspension of the Regulation's Applicability to Fairbanks

    The commenter stated that the provisions of section 211(m) 
``Oxygenated Fuels'' of the Federal 1990 Clean Air Act applies to both 
the Fairbanks and Anchorage CO nonattainment areas, that the former 
Governor unilaterally suspended the regulation's applicability to the 
Fairbanks' area, and there are no provisions in this regulation for 
this action.
    As explained in the ``Background'' section of this rulemaking, 
there have been congressional actions in the past which did temporarily 
exempt Fairbanks and Anchorage from the oxygenated programs requirement 
while ongoing health and driveability studies were conducted. However, 
in this action today, EPA is determining that Alaska's current 
submittal of March 24, 1994, Fuel Requirements for Motor Vehicles, as 
applied to the Anchorage area, meets the requirements of 211(m) 
``Oxygenated Fuels'' and is fully approvable for inclusion into the 
SIP. The fact that this submission does not encompass the Fairbanks 
area does not affect EPA's authority to approve it for Anchorage, and 
hence is not relevant to this rulemaking.

C. Oxygen Content

    The commenter stated that fuel providers for Anchorage were under 
no regulation to meet a blend with an oxygen content of 3.5 percent, 
and this is correct. ADEC's regulation under Fuel Requirements for 
Motor Vehicles, 18 AAC 53.020, Average Oxygen Content Standard, 
submitted to EPA on March 24, 1994, states, ``All gasoline sold, 
offered for sale, distributed, or dispensed by a CAR or blender CAR for 
use in a control area during a control period must be oxygenated so 
that each blend of gasoline has an average oxygen content of not less 
than 2.7 percent by weight.'' EPA is approving this average oxygen 
content of not less than 2.7 percent by weight as meeting the 
requirements of 211(m) of the Act and is incorporating this revision 
into the federally enforceable SIP.

D. Legal Authority--Expansion of Control Area

    The commenter stated there are provisions in ADEC's 18 AAC 53 Fuel 
Requirements for Motor Vehicles that go beyond the authority of Section 
211(m), are unnecessary to satisfy the nonattainment plan provisions of 
the Act, or go beyond the authority granted to ADEC under State law, 
and therefore conflict with EPA's requirements that SIP amendments 
comply with applicable State laws.
    For example, the commenter does not believe ADEC has the authority 
to expand the oxygenated gasoline program to areas other than the 
officially designated CO nonattainment area. The commenter stated it is 
not provided for in the Act and, therefore, is not required to be in 
the SIP, and should not be part of the SIP.
    As discussed above, the CAA does not restrict Alaska's authority to 
regulate oxygen content in gasoline beyond what is required in section 
211(m). In addition, EPA has determined that ADEC will satisfy certain 
requirements of the Act by including in this SIP revision contingency 
measures which provide for expansion of the control area. The Act 
(section 172(c)(9)) requires a State to undertake specific measures to 
be undertaken if the area fails to make reasonable further progress, or 
to attain the national primary ambient air quality standard by the 
(applicable) attainment date. ADEC has met this requirement by 
specifying a contingency measure for Anchorage which provides for 
expansion of its control area, if necessary. Expansion of the control 
area may help a nonattainment area come into attainment by ensuring 
that vehicles refueling outside the nonattainment area but driving 
inside the area are also controlling emissions through use of 
oxygenated gasoline. Oxygen-blended fuels have been shown to be a cost-
effective method for reducing CO emissions.
    Alaska has also used expansion of the oxygenated fuels control area 
as a contingency measure to satisfy another requirement of the Act. 
Because Anchorage is a nonattainment area with a design value above 
12.7 ppm, the Act (section 187(a)(3)) further requires implementation 
of contingency measures if annual updates of the forecasted Vehicle 
Miles Travelled (VMT), or annual estimates of actual VMT, exceed the 
number predicted in the most recent prior forecast; or if the area 
fails to attain the NAAQS by the (applicable) attainment date. ADEC met 
this requirement through its VMT SIP revision, adopted on January 10, 
1994, and approved by EPA on June 29, 1995 (60 FR 33727). The 
contingency measure contained in the VMT revision, and approved by EPA, 
is the expansion of the oxygenated fuels control area. This contingency 
measure became effective and federally enforceable on August 28, 1995.

E. Oxygen Content Averaging and Associated Provisions

    The commenter stated the averaging provisions and associated 
requirements of ADEC's regulation are superfluous and can be replaced 
with a more straightforward per-gallon oxygen content provision. The 
commenter added that the provisions for averaging oxygen content method 
of compliance, oxygen credits and debits, and

[[Page 24714]]

minimum oxygen content are all unnecessary and should not be approved.
    As described in the October 24, 1995 Federal Register notice at 60 
54436, EPA has determined that ADEC met the requirements of 211(m) of 
the Act and was consistent with EPA guidance (57 FR 47769, October 20, 
1992) by offering oxygen content averaging provisions as an option to 
fuel providers. Fuel providers need only use these provisions if they 
so choose. The commenter provides no legal or practical reason why EPA 
should not approve these optional provisions, which are intended only 
to give fuel providers greater compliance flexibility. Even if fuel 
providers are not currently using this approach, including these 
provisions allows for future flexibility in the program, which EPA 
finds is appropriate here.

F. State Authority

    The commenter stated there are no provisions under Alaska State law 
authorizing ADEC to assess the ``CAR and Blender CAR Fees'' provided 
under 18 AAC 53.080. Therefore, the commenter stated the fees 
provisions do not belong in the SIP and are unnecessary to satisfy the 
requirements of the Act.
    EPA has determined that ADEC has fee authority to collect fees to 
cover costs associated with permits, under AS 44.46.025. Revenues 
generated from industry enable the program to be self-sufficient in the 
future. EPA also notes that 18 AAC 53.080(c) requires ADEC to ``refund 
fees in excess of those required to cover the costs for implementing 
the requirements of this chapter.'' As an integral part of Alaska's 
oxygenated gasoline program, which the State has authority to 
implement, it is appropriate for EPA to approve these provisions into 
the SIP.

G. Reporting; Product Transfer Document/Attest Engagements

    The commenter stated that 18 AAC 53.1000 ``Reporting; Product 
Transfer Document'' paragraph (b) requires a CAR or blender CAR to ``* 
* * have an attest engagement conducted in accordance with 18 AAC 
53.170, ``Attest Engagements,'' and that neither of these provisions is 
necessary when compliance is demonstrated on a per-gallon basis. The 
commenter stated they were superfluous.
    As repeated above and described in the October 24, 1995 Federal 
Register notice at 60 54436, EPA has determined that ADEC is following 
EPA guidance published on October 20, 1992, by offering these 
provisions as an option to fuel providers, and EPA finds this is an 
appropriate option to offer fuel providers in this instance.

H. State Authority--``Dispenser Labeling''

    The commenter stated that ADEC's label saying ``Caution: This fuel 
may not be suitable for use in aircraft,'' goes beyond the authority 
granted by EPA in its labeling requirements. The commenter also 
questioned the State of Alaska's authority to require that the label on 
fuel dispensers contain this cautionary statement. In response, the 
State Attorney General's office has provided an opinion to EPA 
explaining the legal basis for this provision.
    Specifically, the Attorney General opinion cites to Title 46, 
Chapter 3, entitled Environmental Conservation, which includes a 
declaration of policy stating that it is the State's policy to control 
air pollution to enhance the ``health, safety, and welfare'' of its 
citizens (emphasis added). See AS 46.03.010(a). The opinion also cites 
to AS 46.03.020(8), (9), and (10) which give ADEC the authority to 
advise and cooperate with local and other state agencies to carry out 
the pollution laws, to act as the official agency in all matters 
affecting the purposes of ADEC under federal laws, and to adopt 
regulations to effectuate the purposes of Chapter 3, including control 
of air pollution and ``other purposes as may be required for the 
implementation'' of Chapter 3's declaration of policy. In addition, AS 
44.62.030 states that a regulation is effective if it is ``consistent 
with and reasonably necessary'' to the purposes of State law.
    Given ADEC's broad statutory authorities, and the opinion of the 
Attorney General's office that these provisions give ADEC the authority 
to promulgate the labeling requirement regarding aviation use of 
oxygenated fuel, EPA is approving this requirement along with the 
State's other labelling requirements. A more detailed discussion of 
ADEC's authorities is contained in the State Attorney General's letter, 
included in the record for this rulemaking.
    EPA has determined that ADEC has complied with EPA regulations and 
guidance for labeling requirements (57 FR 47770, October 20, 1992) and 
as described in the October 24, 1995 Federal Register notice. As EPA 
stated in the preamble to the labelling regulations, those regulations 
are not meant to restrict states from imposing additional information 
requirements, and there is no language in the regulations that would 
impose such a restriction (See 57 FR 47771).

I. Suspension of Requirements

    The commenter stated that section 211(m) provides only that the 
oxygenated gasoline program be imposed in areas exceeding 9.5 ppm and 
are adversely affected by vehicular emissions. The commenter stated 
that 18 AAC 53.190, ``Suspension of Requirements'' provides that 
oxygenated gasoline may be reimposed, after the program has been 
suspended upon attainment, if the area exceeds an 8.5 ppm 8 hour 
average concentration of CO. The commenter concluded that section 
211(m) does not authorize a federally-enforceable oxygenated gasoline 
program in an attainment area, as this provision of 18 AAC 53.190 would 
require; therefore, this provision should not be part of the SIP.
    Section 211(m) does not require an oxygenated gasoline program in 
an area in attainment for CO, except as is necessary to maintain the 
standard. However, as discussed above, there is also no Federal 
restraint on Alaska imposing additional requirements on oxygen content 
beyond what is required under section 211(m).
    Moreover, EPA has determined that ADEC is complying with the 
requirement under section 211(m)(6) of the Act that the program remain 
in effect ``to the extent such program is necessary'' to maintain the 
standard. The State has selected exceedance of 8.5 ppm in an 8 hour 
average as the trigger point for reimplementation of the program. EPA 
believes this is an appropriate trigger point. The CO NAAQS is 9 ppm; 
and pursuant to EPA guidance, values from 8.5 ppm and up are rounded up 
to 9. At 8.5 ppm, the area's air quality is considered to be just 
meeting the standard. The purpose of the trigger point is to protect 
the health and welfare of citizens by ensuring that the area maintains 
compliance with the CO standard. The trigger point chosen by Alaska 
provides for reimplementing oxygenated gasoline promptly upon a strong 
indication that the area is in danger of violation of the standard, 
rather than waiting for CO levels to violate the NAAQS before 
instituting measures to bring the area back into attainment.

III. Significance of Today's Action

    EPA is approving this plan revision submitted to EPA by the State 
of Alaska on March 24, 1994 which implements an oxygenated gasoline 
program in the Municipality of Anchorage. This SIP revision was 
submitted by the State to satisfy certain Federal requirements for CO 
nonattainment areas with a design value of 9.5 ppm or greater to

[[Page 24715]]

implement an oxygenated gasoline program.

IV. Administrative Review

    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 populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
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 CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA 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).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    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 15, 1996. 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), 42 U.S.C. 
7607(b)(2)).

List of subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Alaska was approved by the Director of the Office of 
Federal Register on July 1, 1982.

    Dated: April 23, 1996.
Chuck Clarke,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart C--Alaska

    2. Section 52.70 is amended by adding paragraph (c) (25) to read as 
follows:


Sec. 52.70  Identification of plan.

* * * * *
    (c) * * *
    (25) On March 24, 1994, ADEC submitted a revision to its SIP for 
the State of Alaska addressing the attainment and maintenance of the 
NAAQS for CO in the Anchorage CO nonattainment area.
    (i) Incorporation by reference.
    (A) March 24, 1994 letter from the Alaska Governor to the EPA 
Regional Administrator including as a revision to the SIP the State of 
Alaska, Department of Environmental Conservation, 18 AAC 53, ``Fuel 
Requirements for Motor Vehicles,'' (Article 1, 18 AAC 53.005--18 AAC 
53.190 and Article 9, 18 AAC 53.990, with the exception of 18 AAC 
53.010(c)(2)), filed March 24, 1994 and effective on April 23, 1994.
* * * * *
[FR Doc. 96-12352 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P