Approval and Promulgation of Air Quality Implementation Plans; District of Columbia; Oxygenated Gasoline Program Publication: Federal Register Agency: Environmental Protection Agency Byline: Peter H. Kostmayer Date: 26 January 1995 Subject: American Government • The Environment • Petroleum

[Federal Register Volume 60, Number 17 (Thursday, January 26, 1995)]
[Rules and Regulations]
[Pages 5134-5136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1933]



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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