Approval and Promulgation of Implementation Plans; Carbon Monoxide; Oxygenated Gasoline Program; Minnesota

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN17-3-6325; [FRL-5077-2]

Approval and Promulgation of Implementation Plans; Carbon

Monoxide; Oxygenated Gasoline Program; Minnesota

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Final rule.

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SUMMARY: The USEPA is approving a State Implementation Plan (SIP)

revision submitted by the State of Minnesota. This revision requires an

oxygenated gasoline program in the Minneapolis-St. Paul Metropolitan

Statistical Area (MSA). Two areas were originally required to implement

an oxygenated gasoline program because of past violations of the carbon

monoxide standard, but on April 14, 1994, the Duluth area was

redesignated to attainment of the National Ambient Air Quality

Standards for carbon monoxide (CO). This SIP revision was submitted to

satisfy the requirement for Minnesota of section 211(m) of the Clean

Air Act as amended by the Clean Air Act Amendments of 1990 (the Act),

which requires all CO 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. USEPA is

approving the oxygenated gasoline program.

EFFECTIVE DATE: This final rule becomes effective on November 3, 1994.

ADDRESSES: Copies of the SIP revision, public comments, and other

materials relating to this rulemaking are available for inspection at

the following address: (It is recommended that you telephone Maggie

Greene, at (312) 886-6088 before visiting the Region 5 Office.) United

States Environmental Protection Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard (AE-17J), Chicago, Illinois 60604.

A copy of this revision to the Minnesota Oxygenated Gasoline SIP is

available at the following address: Office of Air and Radiation (OAR),

Docket and Information Center, (Air Docket 6102), room M1500, U.S.

Environmental Protection Agency, 401 M Street SW., Washington DC 20460,

(202) 260-7548, and Program Development Section, Air Quality Division,

Minnesota Pollution Control Agency, 520 Lafayette Road, St. Paul,

Minnesota 55155-3898.

FOR FURTHER INFORMATION CONTACT: Maggie Greene, Air Enforcement Branch

(AE-17J), U.S Environmental Protection Agency, Region 5, Chicago,

Illinois 60604, (312) 886-6088.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

The Minneapolis-St. Paul area and St. Louis County (Duluth) in the

State of Minnesota (the control area) were designated nonattainment for

CO and classified as moderate with a design value of 11.4 and 9.9 parts

per million respectively, based on 1988 and 1989 data. USEPA

redesignated the Duluth area to attainment on April 14, 1994 (59 FR

17706) in the Federal Register. Under section 211(m) of the Act,

Minnesota was required to submit a revised SIP under section 110 and

part D of the Act which includes an oxygenated gasoline program for

Minneapolis-St. Paul and Duluth-Superior by November 15, 1992. On

November 9, 1992, the Minnesota Pollution Control Agency (MPCA)

submitted to USEPA a revised SIP including the oxygenated gasoline

program containing legislation that was 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 notice of

proposed rulemaking was published in the January 20, 1994 (59 FR 3047)

Federal Register.

II. Public Comment/USEPA Response

A thirty-day public comment period was provided to allow interested

parties the opportunity to comment on USEPA's proposed action. USEPA

received three comments from the American Institute of Certified Public

Accountants (CPAs), the Koch Refining Company, and the MPCA. The

comments and USEPA's responses are addressed below.

Comment: The American Institute of CPAs objected to the use of the

word ``Account'' when the word should be ``Accountant'' which is used

to denote a CPA. This appeared in the section entitled ``Registration

Requirements.''

Response: USEPA agrees that the sentence should have read, ``The

USEPA guidelines also require that CARs commission an annual attest

engagement, performed by either an internal auditor or independent

Certified Public Accountant (CPA).''

Comment: The Koch Refining Company supported the oxygenated

gasoline program in Minnesota, but only within the control area and

during the control period. On November 12, 1993, the MPCA submitted a

contingency plan to require year-round oxygenated fuel beginning in

1995. Koch opposed this contingency plan. While Koch understood that

the USEPA's proposed rule did not address the contingency plan and

addressed only the oxygenated gasoline program within the control area

and during the control period, Koch opposed any use of oxygenated

gasoline outside of the control period. Koch will submit additional

comments on the contingency plan when that plan is proposed for Federal

rulemaking.

Response: USEPA will propose rulemaking on the contingency plan in

another Federal Register notice. This final action only deals with the

oxygenated gasoline program.

Comment: The MPCA noted that the officially designated

nonattainment area for CO does not include Superior, Wisconsin, or St.

Louis County, but only the City of Duluth, Minnesota. At this time, the

State does not plan to enforce the oxygenated gasoline program in

Duluth, which has been meeting standards since 1989. Also, it does not

plan to enforce in the remaining portion of St. Louis County, which is

largely a wilderness area and has never had a modeled or monitored

``CO'' problem.

Response: This issue is moot. The State of Minnesota requested that

USEPA redesignate Duluth to attainment for CO. Minnesota submitted a

draft request to USEPA on October 2, 1992, and a final request before

November 1, 1992. USEPA requested additional information several months

later, and the State responded to this request by sending the

information in early December 1993. The USEPA redesignated the Duluth

area to attainment for CO on April 14, 1994 (59 FR 17706) in the

Federal Register.

Additional Information: During the public comment period, USEPA

contacted the MPCA and requested that it withdraw from the Oxygenated

SIP, the MPCA Board resolution of October 27, 1992, which was a part of

the program plan. The resolution allowed the State to unilaterally take

action to eliminate the oxygenated gasoline program upon submission by

the State of a request for redesignation. This concept goes against

USEPA redesignation procedures and cannot be approved as part of the

State's plan. In a letter dated August 12, 1994, the State withdrew the

October 27, 1992, MPCA Board Resolution from the requested SIP

revision.

III. Rulemaking Action

In this action, USEPA is approving in final the SIP revision

submitted by the State of Minnesota. The State of Minnesota has

submitted and implemented an oxygenated gasoline program for the

existing CO nonattainment area substantially in accordance with the

requirements of the Act. The USEPA is, therefore, approving this

submittal.

Nothing in this action should be construed as permitting, allowing

or establishing 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.

USEPA received no significant public comments on the proposed

action. As a direct result, the Regional Administrator reclassified

this action from Table 2 to a Table 3 action 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. A future

document will inform the general public of these tables. 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 2 years. The USEPA submitted a request for

a permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has

agreed to continue the temporary 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. OMB

exempted this regulatory action from Executive Order 12866 review.

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 (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 business, 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 USEPA 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 307 (b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by December 5, 1994. 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 each 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

Environmenal protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Reporting and recordkeeping requirements.

Note.--Incorporation by reference of the State Implementation

Plan for the State of Minnesota was approved by the Director of the

Federal Register on July 1, 1982.

Dated: September 8, 1994.

Valdas V. Adamkus,

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 Y--[Amended]

2. Section 52.1220 is amended by adding paragraph (c)(34) to read

as follows:

Sec. 52.1220 Identification of plan.

* * * * *

(c) * * *

(34) On November 9, 1992, the State of Minnesota submitted the

Oxygenated Gasoline Program. This submittal satisfies the requirements

of section 211(m) of the Clean Air Act, as amended.

(i) Incorporation by reference.

(A) Minnesota Laws Chapter 2509, sections 1 through 31, except for

sections 29 (b) and (c), enacted by the Legislature and signed into Law

on April 29, 1992.

(ii) Additional material.

(A) Letter dated August 12, 1994, from the Minnesota Pollution

Control Agency (MPCA), to the United States Environmental Protection

Agency that withdraws the MPCA Board resolution dated October 27, 1992,

and any reference to it, from the oxygenated gasoline State

Implementation Plan revision request of 1992.

[FR Doc. 94-24420 Filed 10-3-94; 8:45 am]

BILLING CODE 6560-50-P