Approval and Promulgation of Air Quality Implementation Plans for the State of Colorado; Oxygenated Gasoline Program

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.

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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

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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 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.

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\2\See footnote 1. EPA issued guidelines for credit programs

under section 211(m)(5) of the Act.

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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

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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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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.

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\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.

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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.

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\7\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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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:

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\8\See footnote 3.

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

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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