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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC 11-1-6741; FRL-5137-2]

Approval and Promulgation of Air Quality Implementation Plans;

District of Columbia; Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the District of Columbia. This revision establishes and

requires the implementation of an oxygenated gasoline program in the

District of Columbia. The intended effect of this action is to approve,

in a limited fashion, those subsections of the District of Columbia

Municipal Regulations (DCMR) which pertain to oxygenated gasoline. It

is also the effect of this action to disapprove, in a limited fashion,

those subsections of the DCMR which pertain to oxygenated gasoline.

This action is being taken under section 110 of the Clean Air Act

(CAA).

EFFECTIVE DATE: This final rule will become effective on February 27,

1995.

ADDRESSES: 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; the Air and Radiation Docket and Information Center, U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460; and District of Columbia Department of Consumer and Regulatory

Affairs, 2100 Martin Luther King Ave, SE., Washington, DC 20020.

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

SUPPLEMENTARY INFORMATION: On July 5, 1994 (59 FR 34401), EPA published

a notice of proposed rulemaking (NPR) for the District of Columbia. The

NPR proposed limited approval/limited disapproval of the District of

Columbia's oxygenated gasoline regulation. The formal SIP revision was

submitted by the District of Columbia's Department of Consumer and

Regulatory Affairs on October 27, 1993.

The District of Columbia had submitted an oxygenated gasoline SIP

on January 7, 1993. However, on July 6, 1993 EPA deemed the SIP

incomplete due to the fact that the regulations were emergency and had

an expiration of April 6, 1993 and because the SIP was submitted to EPA

by an unauthorized authority. This incompleteness determination started

the 18 month sanctions clock and the 24 month Federal implementation

plan (FIP) clock. The October 27, 1993 oxygenated gasoline SIP

submittal, which is the subject of this rulemaking action, stopped the

18 month sanctions clock but did not stop the 24 month FIP clock.

Other specific requirements of the District of Columbia's

oxygenated gasoline regulation and the rationale for EPA's proposed

action are explained in the NPR and will not be restated here. No

public comments were received on the NPR.

Final Action

EPA is approving those subsections of 20 DCMR which pertain to

oxygenated gasoline as a revision to the District of Columbia SIP.

Those subsections of 20 DCMR include 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, wholesale purchaser-consumer; chapter 5, section 500,

subsections 500.4 and 500.5; shapter 5, section 502, subsection 502.18;

chapter 9, section 904, subsections 904.1 and 904.2. EPA is also

disapproving those subsections of 20 DCMR which pertain to oxygenated

gasoline for the limited purpose of allowing the District of Columbia

the opportunity to correct the deficiencies previously identified by

EPA in the NPR. The deficiencies [[Page 5135]] identified in the NPR

are the lack of: (1) A definition for the term ``carriers''; (2) a

sampling procedure; and (3) procedures for the calculation of oxygen

content in the gasoline sampled; the absence of which compromise the

enforceability of the regulation and are deficiencies under section

110(a)(2) of the Clean Air Act. This final limited disapproval begins a

new 18 month sanctions clock. The 24 month FIP clock continues to run.

Because of the previously identified deficiencies, EPA cannot grant

full approval of this rule under section 110(k)(3) and part D. Also,

because the submitted rule is not composed of separable parts which

meet all the applicable requirements of the CAA, 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, EPA is approving the oxygenated

gasoline regulations found in 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, 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,

which were submitted by the District of Columbia under sections

110(k)(3) and 301(a) of the CAA, for the limited purpose of

strengthening the District of Columbia SIP.

SIP approvals under section 110 and subchapter I, part D of the

Clean Air 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, the

Administrator 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 CAA, 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).

At the same time, EPA is also disapproving the District of Columbia

oxygenated gasoline rule because it contains deficiencies that have not

been corrected as required by section 110(a)(2) of the CAA, and, as

such, the rule does not fully meet the requirements of part D of the

CAA. 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. The 18 month

sanctions clock for the District of Columbia oxygenated gasoline

regulation begins on January 26, 1995. Moreover, the 24 month clock for

the FIP requirement under section 110(c) continues to run.

EPA's disapproval of the State request under section 110 and

subchapter I, part D of the CAA 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.

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.

This action makes final the action proposed at 59 FR 34401. As

noted elsewhere in this document, EPA received no public comment on the

proposed action. As a direct result, the Regional Administrator has

reclassified this action from a Table 2 to a Table 3 under the

processing procedures established at 54 FR 2214, January 19, 1989, as

revised by an October 4, 1993 memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air and Radiation. A future document

will inform the general public of these tables.

The OMB has exempted this regulatory action from E.O. 12866 review.

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action, pertaining to the District of

Columbia's oxygenated gasoline regulation, must be filed in the United

States Court of Appeals for the appropriate circuit by March 27, 1995.

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 section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Reporting and

recordkeeping requirements.

Dated: December 29, 1994.

Peter H. Kostmayer,

Regional Administrator, Region III.

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 J--District of Columbia

2. Section 52.470 is amended by adding paragraphs (c)(28) to read

as follows:

Sec. 52.470 Identification of plan.

* * * * *

(c) * * *

(28) Revisions to 20 District of Columbia Municipal Regulations

(DCMR) pertaining to oxygenated gasoline submitted on October 22, 1993

by the District of Columbia's Department of Consumer and Regulatory

Affairs.

(i) Incorporation by reference.

(A) Letter of October 22, 1993 from the District of Columbia's

Department of Consumer and Regulatory Affairs transmitting the

oxygenated gasoline regulations. [[Page 5136]]

(B) District of Columbia Register dated July 30, 1993 containing 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, 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, effective September 30, 1993.

(ii) Additional material.

(A) Remainder of October 22, 1993 District of Columbia submittal.

3. Section 52.472 is amended by adding paragraph (e) to read as

follows:

Sec. 52.472 Approval status.

* * * * *

(e) Limited approval/limited disapproval of revisions to 20

District of Columbia Municipal Regulations 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, 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

submitted on October 22, 1993 by the District of Columbia's Department

of Consumer and Regulatory Affairs. The District of Columbia oxygenated

gasoline regulation is deficient in that it lacks the following: A

definition for the term ``carriers''; a sampling procedure; and

procedures for the calculation of oxygen content in the gasoline

sampled; the absence of which compromise the enforceability of the

regulation and are deficiencies under section 110(a)(2) of the Clean

Air Act.

[FR Doc. 95-1933 Filed 1-25-95; 8:45 am]

BILLING CODE 6560-50-F