Approval and Promulgation of State Implementation Plans: Alaska

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.

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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

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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

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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