[Federal Register Volume 82, Number 82 (Monday, May 1, 2017)]
[Rules and Regulations]
[Pages 20270-20273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08642]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0199; FRL-9961-31-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Revision of Regulations for Sulfur Content of 
Fuel Oil

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the District of Columbia (the District) 
state implementation plan (SIP). The revision pertains to the update of 
the District of Columbia Municipal Regulations (DCMR) to lower the 
sulfur content of fuel oil. This action is being taken under the Clean 
Air Act (CAA).

DATES: This final rule is effective on May 31, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0199. All documents in the docket are listed on 
the https://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814-2043, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 11, 2016 (81 FR 70064 and 81 FR 70020), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for the District. EPA received a comment on the 
rulemaking and attempted to withdraw the DFR prior to the effective 
date of December 12, 2016. However, EPA inadvertently did not withdraw 
the DFR prior to that date and the rule prematurely became effective on 
December 12, 2016, revising the District's SIP to include DCMR Chapters 
1, 5, and 8 of Title 20 on that date. In the NPR, EPA had proposed to 
approve the SIP revision, which would add the revised versions of DCMR 
Chapters 1, 5, and 8 of Title 20 to the District's SIP. These revisions 
to the DCMR reduce the allowable sulfur content of fuel oils that are 
combusted in oil-burning combustion units in the District. On January 
20, 2016, the District, through the District of Columbia Department of 
Energy and Environment, submitted the aforementioned regulations for 
inclusion into the District's SIP. The revisions to the DCMR reduce the 
sulfur content of fuel oil that can be combusted within the District 
and prohibit the combustion of certain higher sulfur content fuel oil 
regardless of where the fuel is refined. EPA is responding to the 
comment submitted on the proposed revision to the District's SIP, is 
approving the low sulfur fuel oil regulations for inclusion in the 
District's SIP, and is amending the effective date of the regulations' 
inclusion in the SIP to correct our

[[Page 20271]]

failure to withdraw the DFR (after EPA received adverse public 
comments) prior to the December 12, 2016 effective date of the DFR.

II. Summary of SIP Revision and EPA's Analysis

    The combustion of fuel oil containing sulfur leads to direct 
emissions of fine particulate matter (PM2.5) and also sulfur 
dioxide (SO2)--a pollutant which is a precursor to secondary 
formation of PM2.5 pollution. In addition, SO2 
emissions oxidize in the atmosphere to form sulfates, which are one of 
the largest contributors to the formation of regional haze, which 
impairs visibility in the atmosphere by the scattering and absorption 
of sunlight by fine particles. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. The District 
asserts its regulations limiting sulfur content in fuel oil used by 
certain fuel combustion sources and the prohibition of combustion of 
high sulfur content fuel oil within the District will decrease 
SO2 emissions and therefore strengthen the District's SIP. 
The reduction in SO2 emissions helps the District to 
maintain the national ambient air quality standards (NAAQS) for 
SO2 and PM2.5. Additional SO2 emission 
reductions and subsequent reductions in sulfates from District sources 
combusting lower sulfur fuel will assist the District in achieving 
further reasonable progress towards reducing regional haze. Under 
section 169A of the CAA, it is a national goal to remedy and prevent 
regional haze in any Class I areas.\1\ Section 169A requires states 
which contain Class I areas and states from which emissions may 
reasonably be anticipated to cause or contribute to visibility 
impairment in Class I areas to submit SIP revisions to make reasonable 
progress toward meeting the national goal (regional haze SIPs). The 
District's regional haze program to address visibility impairment 
requirements in Class I areas was fully approved into the District's 
SIP by EPA on February 2, 2012. See 77 FR 5191.\2\ The District has 
submitted revised regulations for SIP approval to implement its low 
sulfur fuel oil program.
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    \1\ Class I areas include national parks, wilderness areas, or 
other areas of national importance that have visibility protection 
requirements.
    \2\ The District's regional haze SIP addressing the planning 
period from 2008 to 2018 is consistent with EPA's requirements in 40 
CFR 51.308 and 51.309. The SIP addressed contribution to visibility 
impairment related to emissions of PM2.5 and its 
precursors, and included measures to address emissions that would 
interfere with reasonable progress goals of neighboring states set 
to protect Class I areas. During the development of the first round 
of regional haze SIPs, the regional planning organization for the 
Northeastern and Mid-Atlantic states, Mid-Atlantic/Northeast 
Visibility Union (MANE-VU), established a strategy for these states 
to meet the requirements of reasonable progress goals by 
implementing certain measures, including pursuing a low sulfur fuel 
oil strategy to reduce sulfur content in fuels by 2018.
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    These revisions to DCMR Chapters 1, 5, and 8 of Title 20 require 
that the sulfur content of Number 2 (No. 2) fuel oil be no greater than 
500 parts per million (ppm); the sulfur content of Number 4 (No. 4) 
fuel oil be no greater than 2,500 ppm; and prohibit the use of Number 5 
(No. 5) and heavier fuel oils in the District. Additionally, beginning 
July 1, 2018, the sulfur content of No. 2 fuel oil can be no greater 
than 15 ppm. Any fuel oil stored by the ultimate consumer in the 
District prior to the applicable compliance date may be used after the 
applicable compliance date. The revisions also include changes to 
reporting and recordkeeping requirements related to the use and storage 
of the aforementioned fuel oils. Definitions for terminology which 
relate to reporting and recordkeeping requirements were added.
    The updates to Chapter 1 include amendments to the definitions of 
``American Standards of Testing Materials (ASTM)'' and ``distillate 
oil.'' The revision to Chapter 5 includes updates to the sampling and 
testing practices for fuel oils. The amended Chapter 5 regulations 
require the use of various ASTM methods for the sampling of petroleum; 
an ASTM standard for the determination of fuel oil grade; and various 
ASTM methods for the determination of sulfur content in fuel oil. 
Chapter 8 includes the revised sulfur content for No. 2 and No. 4 fuel 
oils and prohibits combustion of No. 5 and heavier fuel oils in the 
District. Chapter 8 also includes the aforementioned compliance 
provision and definitions related to reporting and recordkeeping 
requirements.\3\
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    \3\ Chapter 8 also includes provisions allowing waiver of fuel 
oil limits when EPA has granted fuel waivers. Chapter 8 also 
addresses fuel oil sulfur limits when a person, owner, or operator 
of a stationary source employs equipment or a process to reduce 
sulfur emissions from burning fuel oil.
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    As discussed in the DFR and NPR, EPA finds the District's low 
sulfur fuel regulations will improve visibility while also helping the 
District to maintain the NAAQS for SO2 and PM2.5 
by reducing sulfur oxide emissions and PM2.5 emissions 
through reduction of sulfur in fuel oils combusted in the District. EPA 
finds that these regulations strengthen the District's SIP. EPA notes 
that existing provisions and the adoption of a low sulfur fuel oil 
program in the District will lead to SO2 emission reductions 
and provide additional SO2 and PM2.5 emission 
reductions from the District to achieve further reasonable progress 
towards reducing regional haze in nearby Class I areas, which may be 
impacted by emissions from the District.

III. Public Comments and EPA's Responses

    EPA received comments from the Export Inspection Council of India 
within the Ministry of Commerce and Industry, Government of India 
(hereinafter referred to as ``commenter'') on November 10, 2016.
    Comment Summary: The commenter noted that the District is of the 
view that the lower sulfur fuel oil regulation will decrease 
SO2 emissions from certain fuel combustion sources which 
results in the strengthening of the District's SIP and which will help 
the District maintain the SO2 NAAQS. The commenter asked 
whether this SIP revision is based on any scientific studies or 
justifications on the low sulfur content of fuel oil. The commenter 
also asked whether the rule implementing the lower sulfur content of 
fuel oil has any significance to meeting any ``multilateral 
obligation.'' Finally, the commenter inquired whether the proposed SIP 
revision applies to only domestically produced fuel oil or also applies 
to fuel oil exported to the United States.
    Response: In response to the commenter's inquiry whether this 
regulation applies to fuel oil imported into the District, as well as 
to fuel oil produced within the District, EPA notes that the District's 
regulation applies to all fuel oil to be combusted within the District 
and limits the sulfur content of fuel oil combusted within the District 
regardless of where the fuel oil is refined. Thus, EPA responds to the 
commenter that the District's regulation limits the sulfur content of 
all fuel oil combusted within the District, whether the fuel oil is 
domestically produced or imported from sources outside the District or 
outside the United States. See title 20 of DCMR chapter 8 section 801.
    As the commenter notes, the District's regulation lowering the 
sulfur content of fuel oil combusted within the District will reduce 
SO2 emissions within the District and aid the District in 
attaining and maintaining the SO2 NAAQS as EPA noted in the 
NPR. The District's regulation to reduce the sulfur content in fuel oil 
is also a response by the District to address regional needs to reduce 
SO2, the primary pollutant in the Mid-Atlantic and Northeast 
United States responsible for visibility impairment or regional haze. 
To address CAA requirements for regional haze, the Mid-Atlantic and 
Northeastern states

[[Page 20272]]

agreed to pursue common efforts to reduce SO2 and visibility 
impairment. One effort to which these states agreed was the reduction 
of sulfur content in fuel oil. A contribution assessment for these 
states was prepared for the first round of regional haze SIPs due in 
2007 entitled Contributions to Regional Haze in the Northeast and Mid-
Atlantic United States.\4\ The assessment provided an analysis of 
pollutant contributions to the formation of regional haze as well as 
pollutant apportionment among states in the Mid-Atlantic and Northeast 
regions of the United States. The assessment found that SO2 
accounts for 20 percent of the haziest days in the Mid-Atlantic and 
Northeast region. These states developed a coordinated course of action 
to address the SO2 emissions contributing to regional haze 
in the eastern United States and asked states in this area to adopt 
regulations to lower the sulfur content of fuel oil. To meet this 
coordinated course of action and to also reduce SO2 
emissions in general to aid in attaining and maintaining the 
SO2 NAAQS, the District adopted the low sulfur fuel oil 
regulations, which are the subject of this SIP revision. Other than 
this ``contribution assessment,'' which aided states in the Mid-
Atlantic and Northeast regions to address regional haze, EPA is not 
aware of any other scientific studies or justifications on low sulfur 
content of fuel oil on which the District's regulation for sulfur 
content in fuel oil is based.
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    \4\ This document can be found at: http://www.nescaum.org/documents/contributions-to-regional-haze-in-the-northeast-and-mid-atlantic--united-states/.
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    Finally, regarding whether the District's regulation has any 
significance to meeting any multilateral obligation, EPA is unaware to 
what the commenter refers by ``multilateral obligation'' as the 
commenter has not defined this phrase. Assuming arguendo that the 
commenter meant to ask whether this low sulfur fuel regulation from the 
District addresses any obligations of the District or of the United 
States to ``international communities'' via treaties or other 
international law obligations, EPA is not aware of any ``multilateral 
obligations'' to which this regulation is intended to apply. The 
District's January 20, 2016 submission only states that its submitted 
regulation which lowers the sulfur content of fuel combusted within the 
District was intended to reduce SO2 emissions within the 
District and aid the District in attaining and maintaining the 
SO2 NAAQS. The District's January 20, 2016 SIP revision 
submittal did not address whether the District's regulation addressed 
any multilateral obligation nor is EPA aware of any multilateral 
obligation which this regulation is intended to address.

IV. Final Action

    EPA is approving revisions to the DCMR Chapters 1, 5, and 8 of 
Title 20 for inclusion in the District's SIP because the revisions meet 
the requirements of the CAA in section 110 and strengthen the 
District's SIP. The revisions to the DCMR Chapters include limits on 
sulfur content in fuels to be combusted within the District and a 
prohibition on combustion of high sulfur content fuels which will 
reduce SO2 emissions in the District. EPA is also amending 
the effective date of the inclusion of these revisions to the 
District's SIP because the revisions were added to the SIP prematurely 
on December 12, 2016 when EPA failed to withdraw its DFR after 
receiving a comment on our approval of the District's low sulfur fuel 
regulations. This rule which responds to the comment received finalizes 
our approval and corrects the premature effective date for inclusion of 
the revised low sulfur fuel regulations in the District's SIP.

V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the DCMR 
Chapters 1, 5, and 8 of Title 20. Therefore, these materials have been 
approved by EPA for inclusion in the SIP, have been incorporated by 
reference by EPA into that plan, are fully Federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference by 
the Director of the Federal Register in the next update of the SIP 
compilation.\5\ EPA has made, and will continue to make, these 
materials generally available through https://www.regulations.gov and/
or at the EPA Region III Office (please contact the person identified 
in the For Further Information Contact section of this preamble for 
more information).
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    \5\ 62 FR 27968 (May 22, 1997).
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VI. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 20273]]

Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report, 
which includes a copy of the rule, to each House of the Congress and to 
the Comptroller General of the United States. EPA will submit a report 
containing this action and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the United States prior to publication of the rule in the Federal 
Register. A major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 30, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 approving the revisions to the District of Columbia's 
regulations to lower the sulfur content of fuel oil may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

    Dated: March 21, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (c) is amended by revising 
the entries for ``Section 199'', ``Sections 502.1 through 502.15'', 
``Section 801'', and ``Section 899'' to read as follows:


Sec.  52.470   Identification of plan.

* * * * *
    (c) * * *

                      EPA-Approved Regulations and Statutes in the District of Columbia SIP
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                                                             State
          State citation              Title/subject        effective     EPA approval date        Additional
                                                             date                                explanation
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                    District of Columbia Municipal Regulations (DCMR), Title 20--Environment
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                                                Chapter 1 General
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                                                  * * * * * * *
Section 199......................  Definitions and            08/16/15  05/01/17 [Insert     Added two new
                                    Abbreviations.                       Federal Register     definitions.
                                                                         citation].
 
                                                  * * * * * * *
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                                     Chapter 5 Source Monitoring and Testing
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                                                  * * * * * * *
Sections 502.1 through 502.15....  Sampling, Tests,           08/16/15  05/01/17 [Insert     Updates to sampling
                                    and Measurements.                    Federal Register     and testing
                                                                         citation].           practices for fuel
                                                                                              oils. Exceptions:
                                                                                              Paragraphs 502.11,
                                                                                              502.12 and 502.14
                                                                                              are not part of
                                                                                              the SIP.
 
                                                  * * * * * * *
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                                 Chapter 8 Asbestos, Sulfur and Nitrogen Oxides
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Section 801......................  Sulfur Content of          08/16/15  05/01/17 [Insert     Updates to the
                                    Fuel Oils.                           Federal Register     sulfur content of
                                                                         citation].           No. 2 and No.4
                                                                                              fuel oils and the
                                                                                              prohibition of the
                                                                                              use of No. 5 fuel
                                                                                              oil.
 
                                                  * * * * * * *
Section 899......................  Definitions and            08/16/15  05/01/17 [Insert     Addition of new
                                    Abbreviations.                       Federal Register     definitions that
                                                                         citation].           relate to the
                                                                                              handling and
                                                                                              storage of fuel
                                                                                              oil.
 
                                                  * * * * * * *
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[FR Doc. 2017-08642 Filed 4-28-17; 8:45 am]
 BILLING CODE 6560-50-P