5 CCR 1001-16
I. Introduction and Definitions A. Statement of Purpose The purpose of this regulation is to reduce carbon monoxide and particulate emissions from gasoline powered motor vehicles in Colorado's Front Range Area through the wintertime use of oxygenated gasolines.
B. Area of Application This regulation shall apply within the Oxygenated Gasoline Program area.
C. Incorporation by Reference Materials incorporated by references in the regulation are available for public inspection during regular business hours at the Commission's office at 4300 Cherry Creek Drive South, and also at any State Publications Depository Library. The regulation incorporates the materials as they exist at the date of the promulgation of this regulation and does not include later amendments to or editions of the incorporated materials.
D. Definitions The following terms shall have the following meaning when used in this regulation:
Waivers for methanol blends are contained in the Federal Register, 46 FR 48975, Oct. 5,1981,49FR 11879, March 28, 1984,55 FR 9114, March 17,1986, 51 FR 28757, August 11,1986; 46 FR 56361, Nov. 16,1981; 44 FR 37074, June 25,1979,45 FR 75755, Nov. 17,1980; 50 FR 2615, Jan. 17,1985, 51 FR 15064, April 22,1986, 51 FR 39800, Oct. 31,1986, 52 FR 18736, May 19,1987; 53 FR 3636, Feb. 8,1988, 53 FR 17977, May 19,1988, and 53 FR 43768, Oct. 28,1988. Waivers for tertiary butyl alcohol are contained in the Federal Register 46 FR 56361, Nov. 16,1981.
II. Requirements of the Oxygenated Gasoline Program A. Control Areas The two control areas constituting separate Oxygenated Gasoline Program control areas, will consist of the following counties and AIR Program areas:
B. Control Period 1. The control period for each control area shall be from November 1 through February 7 each year. This Section II.B.1. is repealed effective February 8, 2004 and is replaced by the requirements in Section II.B.2. below beginning November 1,2004.
2. Effective November 1,2004, the control period for each control area shall be from November 1 through January 31 each year. This Section II.B.2. is repealed effective February 1,2013 and is replaced by the requirements in Section II.B.3. below beginning November 1, 2013.
3. Effective November 1,2013, the control period for each control area shall be from November 1 through February 7 each year.
C. Class A Fuel Requirements 1. During the control period, no class A motor fuel shall be supplied or sold by any person intended as a final product for fueling of motor vehicles within the Oxygenated Gasoline Program area, or sold at retail, or sold to a private fleet for consumption, or introduced into a motor vehicle in the Oxygenated Gasoline Program area by any person unless the fuel has the following oxygen content:
2. Oxygenated gasoline containing 10% by volume denatured ethanol shall be considered equivalent to 3.5% oxygen content by weight.
3. All oxygenated gasoline shall be labeled at the pump stand during the control periods in the Oxygenated Gasoline Program area stated in Sections II.A. with the following statement: “The gasoline dispensed from this pump is oxygenated and will reduce carbon monoxide pollution from motor vehicles”. These labels shall be clearly readable in 20 point bold face type and be affixed to the upper one half of the dispenser. NOTE: all persons must comply with the labeling requirements for fuel products set forth in section 8-20-211.5, C.R.S.
4. All Class A motor fuel products will be blended according to Environmental Protection Agency waivers or “substantially similar” ruling for unleaded gasoline, as defined under Section 211(f)(1) of the Clean Air Act.
5. The maximum amount of methanol which may be blended into gasoline is controlled by provisions contained in both the EPA's “substantially similar” ruling and EPA waivers. Methanol must be blended into all leaded and unleaded gasolines according to these provisions.
6. This regulation does not affect the blending of compounds such as MMT, or other non-oxygenate compounds not required by EPA waiver or “substantially similar” ruling into leaded gasolines.
D. Enforcement/Penalties for NON-COMPLIANCE 1. Compliance with the requirements of this regulation shall be monitored and enforced by the Division. Methodology and tolerance for measurements of oxygenates required in Section II.A.1. shall be determined by the Division. Pursuant to section 25-7-111(f), C.R.S. the Division may designate any appropriate agency of the state to assist in the monitoring and enforcement of this regulation. The Division stall make every effort to coordinate monitoring and enforcement of this regulation with the current duties of the State Inspector of Oils, conducted pursuant to C.R.S. 8-20-101 Et. seq.
2. The Division will have the authority to conduct on-site inspections of oxygenate blending facilities, terminals, refineries, bulk holding tanks, retail sites, and wholesale purchase-consumer or other sites which store class A fuel intended for use in motor vehicles within the Oxygenated Gasoline Program Area during the control period.
3. Penalties for non-compliance will result in further enforcement action under Sections 25-7-121 and 25- 7-122, C.R.S.
E. Severability The provisions of this regulation are severable, and if any provisions, or the application of the provisions to any circumstances, is held invalid, the application of such provision to other circumstances and the remainder of this regulation shall not be affected.
III. Statements of Basis, Specific Statutory Authority and Purpose A. October 19,1995 Revisions The purpose of these revisions is to reduce the cost of the Oxygenated Gasoline Program by eliminating two weeks of the control period. A risk analysis performed by the Air Pollution Control Division demonstrates a very low risk of exceeding the ambient air standard for carbon monoxide during the last two weeks of February. Such amendment of the rule is justified so that the benefits of the program will bear a more reasonable relationship to the cost of the program pursuant to the legislative declaration set out at Section 25-7-102 C.R.S.
The four-month long 2.7 percent oxygenated gasolines program is a component of the state implementation plan already approved by EPA. Therefore, that aspect of the program will be a part of the state implementation plan, and may continue to cover the period of February 15 through February 28, until this change to state law is approved by EPA as a SIP revision or is otherwise approved by EPA. The maximum blending component of the program has been submitted to EPA, but has not yet been approved and therefore is not part of the approved state implementation plan. The amendments to Regulation No. 13 are based on specific statutory authority and therefore may take effect for purposed of enforcement at the state level before the expiration of the revisions has been postponed by the general assembly acting by bill. Section 25-7-133(2), C.R.S. Prior to such postponement of expiration of the rule revisions, the revision to Regulation No. 13 may be submitted to EPA for conditional approval as part of the state implementation plan and for approval of a reduced period pursuant to Section 211 of the federal Clean Air Act.
The Oxygenated Gasoline Program is expressly required by the federal act, and these revisions to Regulation No. 13 are not otherwise more stringent than such federal requirements. The specific statutory authority for these amendments is set out in Sections “25-7-106(1)(e) and 25-7- 109(3)(d), C.R.S.”
B. April 17, 1997 Revisions Regulation No. 13 requires the wintertime use of oxygenated gasoline in the Oxygenated Gasoline Program Area. The purpose of this revision of the regulation is to improve the cost-effectiveness of the Oxygenated Gasoline Program by reducing blending costs to the refiner and operating costs to the consumer while still protecting air quality.
The April 1997 changes to Regulation No. 13 are as follows, beginning with the 1998-1999 control period. The Oxygenated Gasoline Program Period, or “control period,” is being reduced by one week. The control period formerly ran from November 1 through February 14 each year. As amended, the control period will run from November 1 through February 7 each year. The oxygenate requirements have been reduced for the week of November 1 through November
The maximum blending and 3.1% averaging requirements have been revised so that they no longer apply to the week of February 1 through February 7. These changes improve the relationship between benefits and cost of the program, and are consistent with the legislative intent set out in Sections “25-7-102 and 110.B(1)(e), C.R.S.” The Oxygenated Gasoline Program is expressly required by Section 211(m) of the federal act for the Denver-Boulder, Colorado Springs, and Fort Collins-Loveland Metropolitan Statistical Areas. The program is also included in the relevant attainment and maintenance plans for all of the control areas. Pursuant to Section 211(m), the Oxygenated Fuel Program must cover no less than a four month period each year unless the EPA approves of a shorter period based on a demonstration by the state that, because meteorological conditions, a reduced period will assure that there will be no exceedances of the carbon monoxide standard outside of the reduced period. A risk analysis conducted by the Air Pollution Control Division (“Division”) demonstrates a low risk of exceeding the ambient air quality standards for carbon monoxide during the second week of February, or during the first week of November and February at the reduced fuel oxygen concentration. This demonstration meets the requirements of Section 211(m). Therefore, the Oxygenated Gasoline Program, as amended, is federally required and is not otherwise more stringent than such federal requirements.
The revisions to Regulation No. 13 will be submitted to EPA as a SIP revision. The revisions will not take effect for purposes of federal law until EPA approves of such revision. The rule revisions will however take effect for purposes of state law in the winter of 1998-1999. Specific statutory authority for the amendments is provided in Section 25-7-105(1), - 109(1)(e) and - 109(3)(d), C.R.S.
The April 1997 changes to reduce the length of the control period, and to reduce the oxygen content requirements during the first and last weeks of the program, are intended to reduce the cost of the program, rather than achieving further reductions in emissions of air pollution. Furthermore, the rule is based on reasonable available, validated, and sound scientific methodologies provided in the record, which has been considered by the Commission. The Commission has considered all scientific methodologies and information made available by all interested parties. The rule revisions adopted by the Commission achieve the control necessary to demonstrate with sufficient certainty that there will be no exceedance of the carbon monoxide standard outside of the control period in the most cost-effective manner, and in the manner that provides flexibility for the regulated community. The Commission finds that the rule revisions will maximize the air quality benefits of the program in the most cost-effective manner.
The Commission has also considered the factors described in Section 25-7-109(1)(b), C.R.S., in adopting these revisions.
C. January 16,1998 Revisions Regulation No. 13 requires the wintertime use of oxygenated gasoline in the Oxygenated Gasoline Program Area. The purpose of this revision of the regulation is to reduce the length of the Oxygenated Gasoline Program season, beginning with the 1997-98 season, and to conform Regulation No. 13 language and requirements with Section 25-7-133.5(2)(n), C.R.S. The Oxygenated Gasoline Program is expressly required by Section 211(m) of the Federal Act for the Denver-Boulder, Colorado Springs, and Fort Collins-Loveland Metropolitan Statistical Areas. The program is also included in the relevant attainment and maintenance plans for all control areas. Federal law requires a maintenance area to implement an Oxygenated Gasoline Program to the extent such program is necessary to maintain the NAAQS for carbon monoxide. Pursuant to Section 211(m), the Oxygenated Gasoline Program must cover no less than a four month period each year unless the EPA approves of a shorter period based on a demonstration by the state that, because of meteorological conditions, a reduced period will assure that there will be no exceedances of the carbon monoxide standard outside of the reduced period. A risk analysis conducted by the Air Pollution Control Division (“Division”) demonstrates a low risk of exceeding the ambient air quality standards for carbon monoxide during the second week of February, or during the first week of November at the reduced fuel oxygen concentration. This demonstration meets the requirements of section 211 (m). Therefore, the oxygenated gasoline program, as amended, is federally required and is not otherwise more stringent than such federal requirements.
The purpose of the January 16, 1998 change to Regulation No. 13 is to implement the shortened oxygenated gasoline program during the 1997-98 season. Such rule change will be submitted to EPA as a SIP revision.
The Commission had no discretion under state law, and was required to amend Regulation No. 13 to reflect Section 25-7-133.5(2)(n), C.R.S.
Specific statutory authority for the amendments is provided in “25-7-133.5(2)(n).
D. January 10, 2000 Revisions Regulation No. 13 requires the wintertime use of oxygenated gasoline in the Oxygenated Gasoline Program Area. The purpose of the program is to reduce carbon monoxide emissions from motor vehicles. The purpose of this revision to the program is to improve the cost-effectiveness of the program in a manner that protects air quality.
The revisions also reduce, and eventually eliminate, the oxygenate requirements during the first week of February.
The amendments to the Oxygenated Fuels Program gradually reduce the mandatory oxygenate levels in gasoline for the years 2001 through 2012. Pursuant to these revisions, the oxygenate level in gasoline will return to current levels in the year 2019.
The revisions to Regulation No. 13 were developed in conjunction with the carbon monoxide maintenance plan for the Denver metropolitan area. Air quality analyses demonstrate that the oxygenate levels currently mandated by the program exceed the minimum levels necessary to maintain the National Ambient Air Quality Standard (NAAQS) for carbon monoxide through the year 2013. Projections of growth in population and vehicle travel, based on the evaluation tools that are currently available, indicate the current oxygenate levels will be necessary to maintain the NAAQS after 2019. The Oxygenated Gasoline Program is required by Section 211(m)(6) of the federal act for the Denver area to the extent necessary to maintain the NAAQS for carbon monoxide. The rule revisions were adopted in conjunction with a maintenance plan adopted by the Commission to redesignate the Denver area as an attainment area for carbon monoxide. Section 175a of the Federal Clean Air Act requires the maintenance plan to demonstrate maintenance of the NAAQS through the year 2013. Because of improved motor vehicle technology, the Commission may reduce the oxygenate levels mandated by the rule. The revised rule complies with the federal requirements and ensures maintenance of the NAAQS through 2013.
Section 211(m) also requires the program to cover no less than a four-month period unless the EPA approves of a shorter period. This federal requirement is fully discussed in the Statement of Basis, Specific Statutory Authority and Purpose for the January 16, 1998 revisions to Regulation No. 13. Although federal law does not require the maintenance plan to demonstrate maintenance of the NAAQS after 2019, it does require transportation plans and projects to comply with the mobile source emissions budget established in the maintenance plan through the year 2020 and beyond. The rule mandates increased oxygenate levels in the year 2019 to ensure that transportation plans and projects adopted in the future will conform to the mobile source emissions budget included in the SIP, as is required by federal law.
The air quality analyses supporting the revisions to Regulation No. 13 were made using the computer models approved by EPA, as is required by federal rules. Regulation No. 13, as revised, is necessary to comply with the requirements of the federal act and is not more stringent than the requirements of the federal act. Specific statutory authority for the revisions to Regulation No. 13 is provided in Sections 25-7-105(1) through -16(1)(e) and 109(3)(d), C.R.S. (1999).
The December 1999 changes to Regulation No. 13 reduce the oxygen-content requirements of the program for the years 2001 through 2018. The intent of the changes is to reduce the cost of the program rather than achieving further reductions in emissions of air pollution. The rule revisions relax the existing requirements and do not establish additional control measures intended to reduce air pollution. The revisions are based on the computer model currently approved by the EPA. The computer model used to develop the revised rule overstates the air quality benefits of this program. EPA is currently updating and improving the computer model, but the revised computer model has not been approved by EPA and may not be used for federal regulatory purposes. In spite of the problems with the computer model used to develop this regulation, the regulation is based on the most reasonably available, validated, reviewed and sound scientific methodologies currently available under federal law. All methodologies and information made available by interested parties have been considered. The alternative chosen by the Commission provides the regulated community flexibility and achieves the necessary reduction in air pollution. The evidence is insufficient for the Commission to determine that the alternative chosen by the Commission is the most cost-effective alternative. The cost analysis developed by the Division indicates that it may be more cost-effective to eliminate the oxygenated fuels program instead of implementing a clean-screen program, but there is considerable uncertainty in that cost estimate. The impact of oxygenates on gasoline prices varies from year to year depending on the cost of ethanol and gasoline. Thus, reducing the oxygen content of gasoline does not ensure lower consumer gasoline prices. The Commission chose the alternative proposed by the Regional Air Quality Council (RAQC) for several reasons. First the RAQC's proposal is a balanced proposal that was developed through an inclusive stakeholder process. Second, it will establish a remote-sensing network, which is a necessary first step to establish a cost-effective high-emitter program in the future. Finally, the selection of a different option could delay the redesignation of the Denver area and would delay any cost-savings associated with such alternative.
E. February 17,2000 Revisions The purpose of the February 17,2000 revisions to Regulation No. 13 is to remove El Paso County from the program area subject to the oxygenated fuels program. The oxygenated fuels program was adopted to reduce carbon monoxide pollution from automobiles. Carbon monoxide levels in El Paso County have declined substantially due, in large part, to improved air pollution control technology on modern automobiles. The oxygenated fuels program is no longer necessary in El Paso County. The oxygenated gasoline program is required by Section 211(m)(6) of the Federal Clean Air Act for the Denver area to the extent necessary to maintain the NAAQS for carbon monoxide. Computer modeling performed by the Air Pollution Control Division demonstrates that the program is not necessary in order to maintain the national standard for carbon monoxide for the ten-year period prescribed in Section 175 A of the federal Clean Air Act. The revisions to Regulation No. 13 repeal the program in El Paso County. The revisions reduce the stringency of the program and, further, do not make the program more stringent than the requirements of the federal act.
Specific statutory authority for the revisions to Regulation No. 13 is provided in Sections 25-7-105(1), 105.1(4), and 25-7-133.5(4), C.R.S. (1999).
The February 2000 changes to Regulation No. 13 reduce the geographic scope of the oxygenated fuels program. The intent of the change is to reduce the cost of the program rather than achieving further reductions in emissions of air pollution. Because the rule revisions do not establish additional control measures intended to reduce air pollution, the requirements of section 25-7-110.8(1)(a) through (c), C.R.S. are irrelevant and inapplicable.
Section 25-7-110.8(1)(d) and (e) require the Commission to choose the alternative that will achieve the necessary reduction in air pollution in the most cost-effective manner, unless the Commission provides findings of fact detailing why the most cost-effective alternative is unacceptable. The air quality analysis performed by the Air Pollution Control Division indicates that the Commission had the option of eliminating either the oxygenated fuels program or the Automobile Inspection and Readjustment Program (A.I.R. Program) in El Paso County, but not both. A simple comparison of the annual cost and annual carbon monoxide reductions of the two programs suggests that the more cost-effective alternative would be to repeal the A.I.R. Program and retain the oxygenated fuels program. The Commission chose instead to eliminate the oxygenated fuels program in El Paso County for several reasons. First, the elimination of the oxygenated fuels program is likely to take effect one or two years earlier than the elimination of the A.I.R. Program. This potential for a delay before consumers would save any money from the repeal of the A.I.R. program substantially diminishes the cost-effectiveness of that alternative. Second, the oxygenated fuels program only reduces carbon monoxide pollution in the winter. In contrast, the A.I.R. Program reduces carbon monoxide and ozone pollution throughout the year. Third, federal law requires the State to implement a contingency plan if carbon monoxide levels exceed the national standard in the future. The repeal of the oxygenated fuels program means that the program can be held in reserve as a contingency measure. The oxygenated fuels program is a more effective contingency measure than the A.I.R. program because it can be implemented more quickly. Fourth, the Commission does not have the statutory authority to remove El Paso County from the A.I.R. program without the concurrence of the Pikes Peak Area Council of Governments. Section 42-4-316(1), C.R.S.
F. January 11, 2001 Revisions The purpose of the January 11, 2001 revisions to Regulation No. 13 is to bring the regulation into conformity with section 25-7-139, C.R.S., as amended.
This revision is more restrictive than federal or surrounding state rules regarding the use of MTBE. However, there are several proposals at the federal level to restrict and/or ban the use of MTBE. Specific statutory authority for the revisions to Regulation No. 13 is provided in Section 25-7-139, C.R.S. The January 11, 2001 changes to Regulation No. 13 conform with section 25-7-139, C.R.S., as amended. Because the rule revisions do not establish additional control measures intended to reduce air pollution, the requirements of Section 25-7-110.8(1)(a) through (c), C.R.S. are irrelevant and inapplicable. Section 25-7-110.8(1)(d) and (e) require the Commission to choose the alternative that will achieve the necessary reduction in air pollution in the most cost-effective manner, unless the Commission provides findings of fact detailing why the most cost-effective alternative is unacceptable. This rule does not affect the air quality benefit of the oxygenated fuels program.
G. July 18, 2002 Revisions The purpose of the July 18,2002 revisions to Regulation No. 13 is to remove Larimer County from the program area subject to the Oxygenated Gasoline Program effective January 1, 2004. The Oxygenated Gasoline Program was adopted to reduce carbon monoxide emissions from automobiles. Carbon monoxide concentrations in Larimer County have met the national ambient standards since the early 1990s. The Oxygenated Gasoline Program is no longer necessary in Larimer County to prevent the county from exceeding health based ambient air quality standards for carbon monoxide. Sections II.D., II.E., and II.F. have been deleted as well as other references to the Denver area 3.1% average oxygen content and maximum blending requirements. These requirements were previously stricken in past rule making. Minor modifications have been made to correct grammar, grammatical deficiencies and to incorporate references to Broomfield County. These changes have no effect on any regulated party.
The Oxygenated Gasoline Program is required by Section 211(m)(6) of the Clean Air Act for areas in non- compliance with federal national ambient air quality standards for carbon monoxide. Computer modeling performed by the Air Pollution Control Division demonstrates that the program is not necessary in Larimer County in order to maintain the national standards for carbon monoxide for the ten-year period prescribed in Section 175a of the Clean Air Act. The revisions to Regulation No. 13 repeal the program in Larimer County effective January 1, 2004. The revisions reduce the stringency of the program and further do not make the program more stringent than the requirements of the federal act. Specific Statutory Authority for the revisions to Regulation No. 13 is provided in Sections 25-7-105(1), 105.1(4), and 133.5(4), C.R.S.(1999).
H. August 15,2002 Revisions The Commission imported the definition of the term “Alternative Fuel” from Regulation No. 17, the regulation implementing the Colorado Clean Fuel Fleet Program. The remainder of Regulation No. 17 was repealed pursuant to Section 25-7-105(14), C.R.S. The definition of alternative fuel was retained because it is still used for purposes of the alternative fuel tax credit set out at Section 39-22-516, C.R.S., and the Alternative Fuel Rebate Program set out Sections 39-33-1-1 through 106, C.R.S. The Alternative Fuel Tax Credit and Rebate Programs are not required by federal law. As their names imply, these programs are incentive programs, are voluntary, and therefore are not more stringent than federal requirements. Thus, the definition adopted by the Commission defining the term alternative fuel does not impose any requirements on any person and, thus, does not exceed minimum federal requirements.
I. December 19, 2002 Revisions The December 19, 2002 revisions to Regulation No. 13 remove Weld County from the oxygenated gasoline program area effective January 1, 2004. The purpose of this change is to reduce the regulatory burden on the motoring public and to make the air quality program in Weld County more cost-effective. The oxygenated gasoline program is no longer necessary to maintain ambient air quality standards for carbon monoxide in Weld County.
The rule resulting from this repeal does not include any provisions not required by the federal act or that are otherwise more stringent than requirements of the federal act for the Greeley area. Section 25-7-106(1)(e) provides the Commission with discretion to adopt an oxygenated fuels program. Such discretionary authority includes the authority to repeal the program. In addition, Section 25-7- 110.8(1)(d) directs the Commission to adopt cost-effective regulations that maintain flexibility for the regulated community. Since new motor vehicles are cleaner than motor vehicles of the past, the oxygenated fuels program is no longer necessary to achieve necessary reductions in air pollution in the Greeley area and is no longer cost-effective.
Section 25-7-133.5(2)(n) does not require the continuation of an oxygenated fuels program in the Greeley. Section 25-7-133.5(2)(n) is limited to the specific revisions to control measures adopted by the Commission on April 17,1997; it does not prohibit subsequent revisions to the relevant provisions of Regulation No. 13.