[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1272]
[[Page Unknown]]
[Federal Register: January 20, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA 13-6-6121; WA 15-3-6122; WA 13-5-6120; FRL-4824-5]
Approval and Promulgation of Air Quality Implementation Plans;
Washington
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Environmental Protection Agency (EPA) approves a State
Implementation Plan (SIP) revision submitted by the State of
Washington. This revision implements an oxygenated gasoline program in
King County, Pierce County, Snohomish County, Clark County, and Spokane
County. This SIP revision was submitted to satisfy the requirement of
section 211(m) of the Clean Air Act as amended by the Clean Air Act
Amendments of 1990 (the Act) which requires all carbon monoxide
nonattainment areas with a design value of 9.5 parts per million (ppm)
or greater based generally on 1988 and 1989 air quality monitoring data
to implement an oxygenated gasoline program.
EFFECTIVE DATE: This action will become effective on March 21, 1994,
unless notice is received by February 22, 1994, that someone wishes to
submit adverse or critical comments. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to:
Montel Livingston, SIP Manager, Air and Radiation Branch (AT-082),
United States Environmental Agency, 1200 6th Avenue, Seattle,
Washington 98101.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at: Air and Radiation
Branch (Docket #WA13-6-6121 (Spokane); #WA15-3-6122 (Vancouver); and
#WA13-5-6120 (Puget Sound)), United States Environmental Protection
Agency, 1200 Sixth Avenue (AT-082), Seattle, Washington 98101, and
Department of Ecology, Air Quality Program, P.O. Box 47600, Olympia, WA
98504-7600. Attn: Carol Piening.
FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Air and Radiation
Branch (AT-082), United States Environmental Agency, 1200 Sixth Avenue,
Seattle, Washington 98101, (206) 553-6917.
SUPPLEMENTARY INFORMATION:
I. Introduction
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 starting, 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 by
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.
In addition to the guidance on establishment of control period by
area, EPA has issued additional 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.
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 percent oxygen by weight.
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.
II. Background for this Action
Washington state has three ``nonattainment'' areas for carbon
monoxide: Central Puget Sound, including parts of King, Pierce, and
Snohomish Counties; a portion of Spokane County around Spokane; and a
portion of Clark County around Vancouver. The Puget Sound area was
classified using 1987-88 data, while the Spokane and Vancouver areas
were classified using 1988-89 data. The Puget Sound and Spokane
nonattainment areas are classified as high moderate, while the
Vancouver nonattainment area is classified as moderate.
Under section 211(m) of the Act, Washington was required to submit
a revised SIP under section 110 and part D of title I of the Act which
includes an oxygenated gasoline program for the Puget Sound
nonattainment area, the Spokane nonattainment area, and the Vancouver
Nonattainment area by November 15, 1992. The oxygenated gasoline
program, adopted October 6, 1992, became effective November 1, 1992,
and was submitted as an amendment to the State Implementation Plan on
November 16, 1992. EPA summarizes its analysis of the state submittal
below.
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. Washington has elected
to adopt a regulation requiring control area responsible parties (CARs)
to supply an average of at least 2.7 percent oxygen for each control
area serviced. A CAR is defined as a person who owns oxygenated
gasoline which is sold or dispensed from a control area terminal. A
blender CAR is, in general, a party downstream from a terminal who
blends oxygenates into gasoline or who otherwise changes the oxygen
content of the gasoline intended for use in a control area.
To achieve an average of 2.7 percent oxygen, a blender will be
allowed to supply a minimum of 2.0 percent oxygenated gasoline and a
maximum of 3.7 percent. Each gallon of fuel pumped by the retailer must
be, at minimum, 2.0 percent oxygen by weight. Trading of oxygen credits
is allowed. The following sections of this notice address some specific
elements of the state's submittal.
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, spanning not less than four months. Washington
has established a control period for the Vancouver and Puget Sound
nonattainment areas from November through February, and for Spokane,
from September through February. This control period is consistent with
EPA guidance.
All gasoline sold or dispensed for use within a given control area
and during a given control period must comply with the average 2.7
percent oxygen content requirement and must contain not less than 2.0
percent oxygen by weight. Marketable oxygen credits may be used or
traded only within the boundaries of the control area in which they
were created, and only during the applicable control period.
Washington's oxygenated gasoline program has both an ``averaging
period'' compliance scheme and a ``per-gallon'' compliance scheme. When
registering, each blender must choose whether to comply on an average
basis or on a per gallon basis. Under the averaging period scheme, all
gasoline sold or dispensed within the control areas during a given
averaging period must be, on average, at least 2.7 percent by weight.
The averaging period in Washington's program is 2 months. The blender
may also choose to comply on a per-gallon basis. Under the per-gallon
compliance scheme, each gallon of gasoline offered for use in a control
area must contain at least 2.7 percent oxygen by weight.
The Federal CAA requires oxygenated gasoline to be sold in the
Metropolitan Statistical Area (MSA), or the Consolidated Metropolitan
Statistical Area (CMSA), whichever is larger. The oxygenated fuel rule
covers the Seattle-Tacoma CMSA (King, Pierce, and Snohomish Counties),
the Spokane MSA (Spokane County), and the Washington State portion of
the Portland-Vancouver CMSA (Clark County).
Registration and Reporting Requirements
EPA's credit program guidelines specify that all parties intending
to trade marketable oxygen credits should register with the state at
least 30 days in advance of each control season. The 30 day time period
is intended to allow the state flexibility and is a suggested
provision. Upon acceptance, CAR identification numbers should be issued
by the state. EPA guidelines specify that no party should be allowed to
generate, trade, buy or sell credits without a CAR identification
number.
Within at least 30 days before the control period in which a person
meets the definition of CAR or blender CAR, that person shall petition
for registration as a CAR or blender CAR. A person may petition for
registration as a CAR or blender CAR after the beginning of the control
period but must do so at least 30 days before conducting activities as
a CAR or blender CAR.
Registration requests must be on forms approved by and available
from Washington State Department of Ecology or the local air pollution
control authority. Ecology or the authority will issue each blender a
permit containing a unique identification number within 30 days after
submission of a registration application. All terminals, distributors
and service stations which service control areas during the control
period will be required to register with Ecology or the authority and
receive a permit. Blenders will register with the local air pollution
control authority within their control areas (Puget Sound Air Pollution
Control Agency for the King, Pierce, and Snohomish Counties control
area; Southwest Air Pollution Control Agency for the Clark County
control area; and Spokane County Air Pollution Control Authority for
the Spokane County control area).
Blenders must pay a registration fee to compensate for the costs of
administering the registration program, including on-site inspections.
The registration fee is based on the estimated volume of gallons of
oxygenated gasoline offered for sale or sold per control season month
in a control area. Registration fees are required per control area, so
a blender dispensing oxygenated gasoline in the three control areas
must pay three registration fees. Fees have been determined only for
the 1992 control season. As outlined by WAC-173-492-050, small volume
blenders pay $500, medium volume blenders pay $1,000, large volume
blenders pay $10,000, and very large volume blenders pay $25,000. While
the blender can upgrade to a larger category, re-registration to a
lower category is not permitted. For 1993 and beyond, Ecology must
solicit input from affected parties and incorporate comments into their
fee requirements.
EPA has also specified that records should be retained by all
parties in the gasoline distribution system. EPA's guidelines impose
responsibilities on various parties in the gasoline industry. Persons
who produce or import gasoline (refiners and importers) are responsible
for assuring that the gasoline is tested and that the accompanying
documentation accurately reflects oxygen content. Persons who
transport, store, or sell gasoline (refiners, importers, blenders,
distributors, resellers, retailers, wholesale purchaser-consumers) have
various responsibilities associated with assuring that only oxygenated
gasoline is sold or dispensed for use in control areas. Terminal owners
and operators are responsible for assuring that the oxygen content of
the gasoline they receive, handle, or dispense is accurate. Retailers
and wholesale purchaser-consumers are responsible for assuring that
gasoline intended for sale during the control period contains at least
2.0 percent oxygen by weight.
At the end of the control period, blenders who comply on a per-
gallon basis shall submit one report per control area in which they are
registered. The reports, which must be filed on forms provided by
Ecology or the authority, are due March 31.
For blenders who comply on an averaging basis, a report is due to
Ecology or the authority for each two-month averaging period. Reports
are due on the last day of the month following the close of the
averaging period for which the information is required. For both per-
gallon and averaging blenders, Washington's rule allows a reporting
time frame of 30 days rather than EPA's suggested 15 days. EPA feels
that providing businesses extra compliance time will not compromise
environmental benefits.
EPA guidelines require that all parties in the gasoline
distribution network who are located or do business within a control
area, and whose product is eventually sold into the control area for
ultimate use, should be required to keep records concerning certain
day-to-day activities. Under these guidelines, refiners and importers
should be required to keep a copy of all the tests that are performed
on batches of gasoline prior to shipment, as well as copies of the
bills of lading or transfer documents for each batch. Carriers and
distributors should be required to keep copies of the documents which
accompany every batch of gasoline their employees handle. Terminal
owners and operators and CARs and blender CARs (in an averaging
program) should be required to keep records of both the gasoline they
receive from upstream parties, as well as copies of all the tests
performed and records created before the gasoline was transferred to a
downstream party. Washington meets these requirements.
EPA guidelines recommend that CARs commission an annual attest
engagement, performed by either an internal auditor or independent
Certified Public Account (CPA). The guidelines encourage the state to
provide the internal auditor or CPA with standardized forms specifying
the methodology to be used for attest engagements.
Washington's program encourages blenders to use attest engagements
as a defense for liability. If EPA notes that the state's program
suffers from compliance problems related to lack of attest engagements,
EPA may require the use of attest engagements as a corrective action.
Washington offers fuel tax exemptions and tax credits for alcohol
produced by companies certified by the Washington Department of
Licensing as having manufactured less than 8 million gallons during the
previous year. Washington offers a fuel tax exemption for alcohol of
any proof that is sold for use as fuel in motor vehicles. Additionally,
every gallon of alcohol used in an alcohol-gasoline blend containing at
least nine and one-half percent or more by volume alcohol is eligible
for a tax credit of sixty percent of the tax rate imposed. EPA believes
as blenders perform intensive reviews for tax purposes, they will
simultaneously order their records for the purpose of the oxyfuel
program. Ecology plans to do comprehensive annual reviews of gasoline
blender records to insure compliance. EPA approves of this approach for
the state of Washington.
Prohibited Activities
EPA's credit program guidelines contain provisions designed to
ensure that gasoline failing to meet the 2.0 percent by weight minimum
oxygen content requirement is not available for use within a control
area. Generally, CARs or blender CARs may not transfer gasoline for use
in a control area that contains less than the minimum percent of oxygen
by weight to parties who are not themselves registered as CARs or
blender CARs. Under EPA's credit program guidelines, regulated parties,
including refiners, importers, oxygenate blenders, carriers,
distributors, or resellers may not fail to comply with recordkeeping
requirements. In addition, a terminal that sells or dispenses gasoline
intended for use in a control area should accept gasoline only if
transfer documentation accompanies it, or unless the terminal is a
blender registered in compliance with WAC 173-492-050. Misrepresenting
the oxygen content of the gasoline in accompanying documents is a
violation. Transfer documents must accompany the gasoline in every link
of the gasoline distribution network except for the final consumer.
Non-oxygenated gasoline may not be sold to an ultimate consumer in any
control area during the control period.
Transfer Documents
EPA's credit program guidelines specify that transfer documents
should include the following information: date of the transfer, name
and address of the transferor, name and address of the transferee, the
volume of gasoline which is being transferred, the proper
identification of the gasoline as oxygenated or nonoxygenated, the
location of the gasoline at the time of the transfer, the type of
oxygenate, and the oxygen content of the gasoline (for transfers
upstream of the control area terminal and for transfers between CARs,
include the oxygenate volume of the gasoline). Records are to be kept
in a location where they are available for state review. Washington
meets EPA's recommendation.
Washington has included requirements related to transfer
documentation in its regulation. These transfer document requirements
will enhance the enforcement of the oxygenated gasoline regulation by
providing a paper trail for each gasoline sample taken by state
enforcement personnel.
Enforcement and Penalty Schedules
State oxygenated gasoline regulations must be enforceable by the
state oversight agency. 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.
To insure compliance, the authority or Ecology plans to obtain and
test samples from each blender on a monthly basis throughout the
control season. The authority or Ecology plans to obtain samples from
20 percent of retail stations in a control area during a control
season, and to examine records as needed.
The Clean Air Washington Act, Chapter 70.94 RCW, provides for both
criminal and civil penalties for oxygenated fuel violations. Criminal
penalties include fines up to $10,000 and/or imprisonment for up to one
year. Civil penalties include fines up to $10,000 per day for each
violation.
Test Methods and Laboratory Review
EPA's sampling procedures are detailed in appendix D of 40 CFR part
80. EPA has recommended, in its credit program guidelines, that states
adopt these sampling procedures. Washington has adopted EPA sampling
procedures.
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, if approved by EPA. Washington has
elected to use the ASTM 4815-89 or other test methods determined by
Ecology and EPA as being equivalent.
EPA has established an interim testing tolerance, which states
appropriate ranges for credit and per-gallon programs (See Memorandum
dated October 5, 1992 from Mary T. Smith). As EPA states in that
memorandum, the purpose of the testing in a credit program is to
determine if a sample meets the 2.0 percent minimum oxygen content
requirement and to determine whether the documentation that accompanied
that gasoline is correct. For a per-gallon program, the purpose of the
testing is to determine whether the gasoline contains less than 2.7
percent oxygen by weight. Washington has established that during the
control period and in each control area, oxygenated gasoline blenders
must supply an average of at least 2.7 percent oxygen for each control
area serviced. To achieve an average of 2.7 percent oxygen a blender
will be allowed to supply a minimum of 2.0 percent oxygenate gasoline
and a maximum of 3.7 percent. Each gallon of fuel pumped by the
retailer must have a minimum of 2.0 percent oxygen.
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, 1992, required the following statement
be posted for a per-gallon program or credit program with minimum
oxygen content requirement:
''The gasoline dispensed from this pump is oxygenated and will
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. Washington has
adopted labeling regulations that differ from the Federal regulation in
the following way(s). The lettering on the label is in block style of
at least 20 point, and should appear in a color that contrasts the
intended background. The label should be placed on each side of the
dispenser from which the gasoline can be dispensed and on the upper
half of the dispenser, in a position that will be clear and conspicuous
to the consumer. EPA approves Washington's labeling requirement.
EPA's review of the material indicates that the state has adopted
an oxygenated gasoline regulation in accordance with the requirements
of the Act. EPA approves the Washington SIP revision for an oxygenated
gasoline program, which was submitted on January 22, 1993, together
with referenced Washington State SIP Appendix B, ``State Regulations,''
and Appendix D, ``State Policies and Guidelines.'' The EPA is
publishing this action without prior proposal because the Agency views
this as a noncontroversial amendment and anticipates no adverse
comments. This action will be effective March 21, 1994, unless, by
February 22, 1994, notice is received that adverse or critical comments
will be submitted.
If such notice is received, this action will be withdrawn before
the effective date by publishing two subsequent notices. One notice
will withdraw the final action and another will begin a new rulemaking
by announcing a proposal of the action and establishing a comment
period. If no such comments are received, the public is advised that
this action will be effective March 21, 1994.
III. Conclusion
EPA, in this action, is approving this revision to the Washington
SIP for an oxygenated gasoline program.
IV. Administrative Review
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
(54 FR 2222) from the requirements of section 3 of Executive Order
12291 for a period of two years. EPA has submitted a request for a
permanent waiver for Table 2 and Table 3 SIP revisions. OMB has agreed
to continue the waiver until such time as it rules on EPA's request.
This request continues under Executive Order 12866 which superseded
Executive Order 12291 on September 30, 1993.
Under 5 U.S.C. 605(b), I certify that this revision will not have a
significant economic impact on a substantial number of small entities
(see 46 FR 8709).
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.SE.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
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 any SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
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 March 21, 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 such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See 42 U.S.C. 7607(b)(2))
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Ozone, Volatile organic
compounds.
Note: Incorporation by reference of the Implementation Plan for
the State of Washington was approved by the Director of the Office
of Federal Register on July 1, 1982.
Dated: December 27, 1993.
Gerald A. Emison,
Acting 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 WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(42) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(42) On January 22, 1993, the State of Washington Department of
Ecology submitted revisions to the State Implementation Plan for the
State of Washington addressing the attainment and maintenance of the
National Ambient Air Quality Standards for carbon monoxide in the King,
Pierce, Snohomish, Clark and Spokane Counties.
(i) Incorporation by reference.
(A) January 22, 1993, letters from the State of Washington
Department of Ecology to EPA Region 10 submitting amendments to the
Washington State Implementation Plan for Carbon Monoxide in the King,
Pierce, Snohomish, Clark, and Spokane Counties.
(B) Supplements to the State Implementation Plan for Washington
State--a plan for attaining and maintaining National Ambient Air
Quality Standards (NAAQS) for the Spokane Carbon Monoxide Nonattainment
Area, Vancouver Air Quality Maintenance Area, and Puget Sound Carbon
Monoxide Nonattainment Area, adopted on January 22, 1993.
(C) State Regulations Appendix B-Part 2, ``Motor Fuel
Specifications for Oxygenated Gasoline, Chapter 173-492 WAC,'' of the
Washington State SIP appendices, adopted October 6, 1992.
(D) State Policies and Guidelines Appendix D, ``Oxygenated Gasoline
Program, Implementation Guidelines, Washington State Department of
Ecology, September 1992.''
[FR Doc. 94-1272 Filed 1-19-94; 8:45 am]
BILLING CODE 6560-50-F