[Federal Register Volume 59, Number 127 (Tuesday, July 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16218]


[[Page Unknown]]

[Federal Register: July 5, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[SIPTRAX NO. DC11-1-6222; FRL-5006-9]

 

Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a limited approval/limited disapproval of a 
State Implementation Plan (SIP) revision submitted by the District of 
Columbia. This revision implements an oxygenated gasoline program in 
the District of Columbia. The intended effect of this action is to 
propose approval of those subsections of the District of Columbia 
Municipal Regulations (DCMR) which pertain to oxygenated gasoline for 
the limited purpose of strengthening the District of Columbia SIP which 
currently has no requirements for an oxygenated gasoline program. In 
addition, this action is intended to propose disapproval of those 
subsections of the DCMR which pertain to oxygenated gasoline for the 
limited purpose of allowing the District of Columbia the opportunity to 
correct the deficiencies in the regulation which result in its failure 
to meet all requirements of the Clean Air Act. This action is being 
taken under Section 110 of the Clean Air Act.

DATES: Comments must be received on or before August 4, 1994.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107 and the 
District of Columbia Department of Consumer and Regulatory Affairs, 
2100 Martin Luther King Ave, S.E., Washington, DC 20020.

FOR FURTHER INFORMATION CONTACT: Mrs. Kelly L. Bunker, (215) 597-4554.

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 Clean Air Act, 42 U.S.C. 7401 et seq. (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 in length unless a state can demonstrate that, because of 
meteorological conditions, a reduced control period will assure that 
there will be no carbon monoxide exceedances outside of such reduced 
period. EPA announced guidance on the establishment of control periods 
by area in the Federal Register on October 20, 1992.1
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    \1\See ``Guidelines for Oxygenated Gasoline Credit Programs and 
Guidelines on Establishment of Control Periods under Section 211(m) 
of the Clean Air Act as Amended--Notice of Availability,'' 57 FR 
47853 (October 20, 1992).
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    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.\2\ Under a credit program, marketable oxygen credits may be 
generated from the sale of gasoline with a higher oxygen content than 
is required (i.e. an oxygen content greater than 2.7 percent by 
weight). These oxygen credits may be used to offset the sale of 
gasoline with a lower oxygen content than is required. Where a credit 
program has been adopted, EPA's guidelines provide that no gallon of 
gasoline should contain less than 2.0% oxygen by weight.
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    \2\See note 1. EPA was issued guidelines for credit programs 
under section 211(m)(5) of the Act.
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    EPA issued labeling regulations under section 211(m)(4) of the Act. 
These labeling regulations were published in the Federal Register on 
October 20, 1992.\3\
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    \3\See ``Notice of Final Oxygenated Fuels Labeling Regulations 
under Section 211(m) of the Clean Air Act as Amended--Notice of 
Final Rulemaking,'' 57 FR 47769. The labeling regulations may be 
found at 40 C.F.R. Part 80, section 80.35.
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II. Background for this Action

    EPA has determined that the 1988 and 1989 data for the Washington, 
DC area is invalid because of poor data quality and therefore 
inadequate to properly characterize the ambient concentrations of 
carbon monoxide (CO). Therefore, EPA used data from 1987 and 1988 to 
designate the Washington, DC area as a CO nonattainment area with a 
design value of 11.4 ppm.\4\ Under section 211(m) of the Act, the 
District of Columbia 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 entire District of Columbia by November 15, 
1992.\5\
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    \4\See ``Designation of Areas for Air Quality Planning 
Purposes,'' 56 FR 56694 (November 6, 1991).
    \5\See credit program guidelines at 3, wherein the November 15, 
1992 SIP revision due date was specified.
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    On October 27, 1993, the District of Columbia Department of 
Consumer and Regulatory Affairs submitted a revision to its SIP for an 
oxygenated gasoline program. The revision included additions or 
amendments to 20 District of Columbia Municipal Regulations (DCMR) 
Chapter 1, Section 199; Chapter 5, Section 500, Subsections 500.4 and 
500.5; Chapter 5, Section 502, Subsection 502.18; Chapter 9, Section 
904, Subsections 904.1 and 904.2. These regulatory revisions were 
adopted by the District of Columbia on July 16, 1993 and became 
effective on September 30, 1993. EPA summarizes its analysis of the 
state submittal below. A more detailed analysis of the state submittal 
is contained in a Technical Support Document (TSD) dated February 23, 
1994, which is available from the Region III office, listed in the 
ADDRESSES section.

III. EPA's Analysis of the District of Columbia's Oxygenated Gasoline 
Program

    As discussed above, section 211(m)(2) of the Act requires that 
gasoline sold or dispensed for use in the specified control areas 
contain not less than 2.7 percent oxygen by weight. Under section 
211(m)(5), the EPA Administrator issued guidelines for credit programs 
allowing the use of marketable oxygen credits. The District of Columbia 
has elected to adopt a regulation requiring 2.7% oxygen content for 
each gallon of gasoline sold in a control area. The following sections 
of this notice address some specific elements of the state's submittal. 
Parties desiring more specific information should consult the TSD.

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. The District of Columbia has established the 
control period as November 1 to the last day of February control period 
which is consistent with the EPA guidance. The District of Columbia 
oxygenated gasoline regulations require oxygenated gasoline to be sold 
in the entire District of Columbia, consistent with the requirements of 
section 211(m)(2) of the Act. 20 DCMR Section 500, Subsection 500.4 
requires all parties in the gasoline distribution network, including 
``carriers'', to generate and maintain records detailing compliance. 
However, the definition of ``carriers'' is not found in Section 199, 
entitled Definitions and Abbreviations, or any other section of 20 
DCMR. The lack of a definition for ``carriers'' compromises the 
enforceability of the regulation and is a deficiency under Section 
110(a)(2) of the Act.

Transfer Documents

    The District of Columbia 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. EPA recommends that states will visit at least 
20% of regulated parties during a given control period. Inspections 
should consist of product sampling and record review. In addition, each 
state should devise a comprehensive penalty schedule. Penalties should 
reflect the severity of a party's violation, the compliance history of 
the party, as well as the potential environmental harm associated with 
the violation.
    The District of Columbia's enforcement strategies and penalty 
provisions are found in 20 DCMR Chapter 1, Sections 100, 101, 102, 104 
and 105. 20 DCMR Chapter 1, Sections 101 and 102 give the authority to 
inspect and issue notice of violations to the alleged violator. 20 DCMR 
Chapter 1, Section 104 provides the alleged violator the opportunity 
for a hearing. 20 DCMR Chapter 1, Section 105 provides penalties which 
include a fine of up to $5,000 per violation or imprisonment not to 
exceed 90 days, or both. The District of Columbia's enforcement and 
penalty provisions are acceptable.

Test Methods and Laboratory Review

    EPA's sampling procedures are detailed in Appendix D of 40 C.F.R. 
Part 80. EPA has recommended that states adopt these sampling 
procedures. The District of Columbia has not adopted EPA sampling 
procedures or any other sampling procedure which would be acceptable to 
EPA. In addition, the District of Columbia has failed to include in 
its' regulation procedures for the calculation of oxygen content in the 
gasoline sampled. Both the lack of sampling procedures and oxygen 
content calculations compromise the enforceability of the regulation 
and are a deficiency under Section 110(a)(2) of the Clean Air Act.
    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. The District of 
Columbia has elected to use the ASTM-D4815-89 method which is 
consistent with EPA guidelines.

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,\6\ required the following 
statement be posted for a per-gallon program or credit program with 
minimum oxygen content requirement:
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    \6\See note 3.
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    ``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. The District of 
Columbia has adopted labeling regulations consistent with the federal 
regulation.

EPA Analysis

    EPA is proposing a limited approval of the additions or amendments 
to 20 DCMR Chapter 1, Section 199, definitions for the terms ``blending 
plant'', ``distributor'', ``non-oxygenated gasoline'', ``oxygenate'', 
``oxygenated gasoline'', ``oxygenated gasoline control period'', 
``oxygenated gasoline control area'', ``refiner'', ``refinery'', 
``retailer'', ``retail outlet'', ``terminal'', and ``wholesale 
purchaser consumer''; Chapter 5, Section 500, Subsections 500.4 and 
500.5; Chapter 5, Section 502, Subsection 502.18; Chapter 9, Section 
904, Subsections 904.1 and 904.2 into the District of Columbia SIP, 
which was submitted on October 27, 1993. EPA is also proposing to 
disapprove the additions or amendments to 20 DCMR Chapter 1, Section 
199, definitions for the terms ``blending plant'', ``distributor'', 
``non-oxygenated gasoline'', ``oxygenate'', ``oxygenated gasoline'', 
``oxygenated gasoline control period'', ``oxygenated gasoline control 
area'', ``refiner'', ``refinery'', ``retailer'', ``retail outlet'', 
``terminal'', and ``wholesale purchaser-consumer''; Chapter 5, Section 
500, Subsections 500.4 and 500.5; Chapter 5, Section 502, Subsection 
502.18; Chapter 9, Section 904, Subsections 904.1 and 904.2 for the 
limited purpose of allowing the District of Columbia the opportunity to 
correct certain deficiencies. These deficiencies are located in Section 
199 (lack of definition for the term ``carrier'') and Section 502 (lack 
of sampling procedure and lack of a procedure to calculate the oxygen 
content of the gasoline sampled). EPA is soliciting public comments on 
the issues discussed in this notice or on other relevant matters. These 
comments will be considered before taking final action.
    Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional office 
listed in the Addresses section of this notice.
    20 DCMR Section 500, Subsection 500.4 requires all parties in the 
gasoline distribution network, including ``carriers'', to generate and 
maintain records detailing compliance. However, the definition of 
``carriers'' is not found in 20 DCMR Section 199, entitled Definitions 
and Abbreviations, or any other section of 20 DCMR. Therefore, EPA is 
proposing to disapprove both Section 199, because it lacks a definition 
for the term ``carriers'', and Subsection 500.4, because the term 
``carriers'' which is used in this section is not defined in the 
subsection or any other section of 20 DCMR. The lack of a definition of 
``carriers'' compromises the enforceability of the regulation and is a 
deficiency under Section 110(a)(2) of the Clean Air Act.
    EPA's sampling procedures are detailed in Appendix D of 40 CFR Part 
80. EPA has recommended that states adopt these sampling procedures. 
The District of Columbia has not adopted EPA sampling procedures or any 
other sampling procedure which would be acceptable to EPA. In addition, 
the District of Columbia has failed to include in its' regulation 
procedures for the calculation of oxygen content in the gasoline 
sampled. Both the lack of a sampling procedure and oxygen content 
calculation procedure compromise the enforceability of the regulation 
and are a deficiency under Section 110(a)(2) of the Clean Air Act. 
Therefore, EPA is proposing to disapprove 20 DCMR Section 502, 
Subsection 502.18 because it lacks both a sampling procedure and a 
procedure for calculating the oxygen content in the gasoline sampled.
    Because of the above deficiencies, EPA cannot grant full approval 
of this rule under section 100(k)(3) and Part D. Also, because the 
submitted rule is not composed of separable parts which meet all the 
applicable requirements of the Act, EPA cannot grant partial approval 
of the rule under section 110(k)(3). However, EPA may grant a limited 
approval of the submitted rule under section 110(k)(3) in light of 
EPA's authority pursuant to section 301(a) to adopt regulations 
necessary to further air quality by strengthening the SIP. The approval 
is limited because EPA's action also contains a simultaneous limited 
disapproval, due to the fact that the rule does not meet the section 
110(a)(2) requirement because of the noted enforcement deficiencies. 
Thus, in order to strengthen the SIP, EPA is proposing a limited 
approval of the District of Columbia's submitted additions or 
amendments to 20 DCMR Chapter 1, Section 199; Chapter 5, Section 500, 
Subsections 500.4 and 500.5; Chapter 5, Section 502, Subsection 502.18; 
Chapter 9, Section 904, Subsections 904.1 and 904.2 under section 
110(k)(3) and 301(a) of the Act.
    At the same time, EPA is also proposing a limited disapproval of 
this rule because it contains deficiencies under section 110(a)(2) of 
the Act, and, as such, the rule does not fully meet the requirements of 
the Act. Under section 179(a)(2), if the Administrator disapproves a 
submission under section 110(k) for an area designated nonattainment, 
based on the submission's failure to meet one or more of the elements 
required by the Act, the Administrator must apply one of the sanctions 
set forth in section 179(b) unless the deficiency has been corrected 
within 18 months of such disapproval. Section 179(b) provides two 
sanctions available to the Administrator: highway funding and offsets. 
The 18 month period referred to in section 179(a) will begin at the 
time EPA publishes final notice of this disapproval. Moreover, the 
final disapproval triggers the federal implementation plan (FIP) 
requirement under section 110(c).

III. Proposed Action

    For the above stated reasons, EPA is proposing a limited approval/
limited disapproval of the District of Columbia's SIP for an oxygenated 
gasoline program. In order to correct the deficiencies in 20 DCMR 
Chapter 1, Section 199; Chapter 5, Section 500, Subsections 500.4 and 
500.5; Chapter 5, Section 502, Subsection 502.18; Chapter 9, Section 
904, Subsections 904.1 and 904.2 which EPA is proposing as a limited 
disapproval, the District of Columbia must include a definition for the 
term ``carrier'', include a sampling procedure, and include procedures 
for the calculation of oxygen content in the gasoline sampled. If the 
District of Columbia submits a SIP revision which is deemed 
administratively and technically complete and corrects the deficiencies 
listed above prior to the time that EPA finalizes this action, EPA will 
propose full approval of the October 27, 1993 submittal and the 
subsequent submittal which corrects the deficiencies.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    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 sections 110 and 301, and subchapter I, Part D 
of the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, EPA 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the Act does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.
    This action has been classified as a Table 2 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 
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. OMB has exempted this regulatory 
action from E.O. 12866 review.
    The Administrator's decision to approve or disapprove the District 
of Columbia's oxygenated gasoline SIP revision will be based on whether 
it meets the requirements of section 110(a)(2)(A)-(K) and of the Clean 
Air Act, as amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: April 28, 1994.
Stanley L. Laskowski,
Acting, Regional Administrator, Region III.
[FR Doc. 94-16218 Filed 7-1-94; 8:45 am]
BILLING CODE 6560-50-P