Approval and Promulgation of Air Quality Implementation Plans; Washington

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.

-----------------------------------------------------------------------

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