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

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