5531636 Environment, District Department of the -Notice of Second Proposed Rulemaking and Public Hearing - Second Proposal to Revise the Sulfur Content Requirements for Fuel Oil and to Submit the Rulemaking to EPA as a SIP Revision

DISTRICT DEPARTMENT OF THE ENVIRONMENT

 

NOTICE OF SECOND PROPOSED RULEMAKING AND PUBLIC HEARING

 

Second Proposal to Revise the Sulfur Content Requirements for Fuel Oil

and to Submit the Rulemaking to EPA as a SIP Revision

 

The Director of the District Department of the Environment (DDOE or Department), pursuant to the authority set forth in Sections 5 and 6 of the District of Columbia Air Pollution Control Act of 1984, effective March 15, 1985, as amended (D.C. Law 5-165; D.C. Official Code §§ 8-101.05 and 8-101.06 (2013 Repl.)); Sections 107(4) and 110 of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.07(4) and 8-151.10 (2013 Repl.)); and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of the intent to adopt the following amendments to Chapters 1 (Air Quality-General Rules), 5 (Air Quality-Monitoring and Testing), and 8 (Air Quality-Asbestos, Sulfur, Nitrogen Oxides, and Lead) of Title 20 (Environment) of the District of Columbia Municipal Regulations (DCMR), in not less than thirty (30) days from the date of publication of this notice in the D.C. Register. 

 

The primary purpose of this rulemaking is to amend 20 DCMR § 801 to reduce the permissible sulfur content of commercially available “home heating” fuel oils used in oil-burning combustion units in the District, and to specify record-keeping and reporting requirements for numbers two (No. 2), four (No. 4), five (No. 5), and heavier residual oils, which  are used in industrial, commercial, and institutional (ICI) boilers; No. 2 is also used, along with lighter fuel oils (distillates), in residential, commercial, and municipal heating units. This rulemaking proposes to ban the use of No. 5 and heavier fuel oils, as there are no known users of these higher-polluting fuels in the District at this time. Finally, the District proposes to add one definition and amend another in 20 DCMR § 199, and to amend 20 DCMR § 502.6, related to fuel oil testing requirements; the Department is particularly interested in feedback or suggestions from stakeholders about the proposed testing methods.

 

The proposed regulations were published in the D.C. Register on June 20, 2014 at 61 DCR 006214 (Notice ID 4959336), and then notice of a public hearing was posted in the D.C. Register on June 27, 2014 at 61 DCR 006384 (Notice ID 4968066).  Three comments were received during the public comment period, in addition to comments from the U.S. Environmental Protection Agency (EPA).  One public commenter was supportive of the rule.  Two commenters from industry did not object to the proposed 500 parts per million (ppm) limit for sulfur in No. 2 commercial fuel or the July 1, 2016 implementation date, but both encouraged coordination with neighboring jurisdictions before imposing a 15 parts per million (ppm) limit by 2018.  One of the industry comments also requested a transition period following changes in sulfur content requirements.

 

The District notes that there was an extensive negotiation process with industry through the Mid-Atlantic/Northeast Visibility Union (MANE-VU), which was formed by the Mid-Atlantic and Northeastern states, tribes, and federal agencies to coordinate regional haze planning activities for the region.  The MANE-VU issued a statement in 2007 entitled “Statement of the [MANE-VU] Concerning a Course of Action within MANE-VU toward Assuring Reasonable Progress,” which outlined the commitments of all participating members to reduce regional haze by lowering the permissible limits on sulfur in home heating oil. Although neighboring jurisdictions have not adopted a 15 ppm sulfur limit to date, lack of regional coordination regarding this measure should not prevent industry from complying with the District’s sulfur content requirements for home heating oil by 2018 given the ample lead time. 

 

The rulemaking is being re-proposed to address EPA’s concerns about (1) potential confusion between number two (No. 2) diesel fuel, which EPA regulates for use by motor vehicles, and number two (No. 2) home heating oil, which the District is proposing to regulate; and (2) the proposed requirement for written concurrence of the EPA Administrator before waiving fuel requirements in the District. 

 

The revised rulemaking also clarifies that general fuel specifications for fuel oil grade may be acceptable if certain conditions are met.  Additional fuel oil test methods were added to § 502.6, including one for identifying fuel oil grade, as identified by the EPA at 40 C.F.R. § 60.17.

 

Summary of the Proposed Amendments

 

Beginning on July 1, 2016, it will be unlawful to purchase, sell, offer for sale, store, transport, or use number two (No. 2) commercial fuel oil containing more than five hundred parts per million (500 ppm), or five one-hundredths percent (0.05%) by weight of sulfur; and number four (No. 4) commercial fuel oil containing more than two thousand five hundred parts per million (2,500 ppm) or twenty-five one-hundredths percent (0.25%) by weight of sulfur.  Also, in July 2016, the use of residual fuel oil number five (No. 5) and heavier will be prohibited in the District.  Beginning on July 1, 2018, it will be unlawful to purchase, sell, offer for sale, store, transport, or use number two (No. 2) commercial fuel oil containing more than fifteen parts per million (15 ppm) or fifteen ten-thousandths percent (0.0015%) by weight of sulfur.  Fuel oils stored before the applicable compliance dates may be used after the applicable compliance date. This rulemaking includes third-party sampling and testing requirements as well as record-keeping and reporting requirements.

 

Background

 

Commercial fuel oils are processed to meet various legal and regulatory requirements at refineries in places such as the Gulf of Mexico. Processed oil is barged or moved via underground steel pipes from refineries to terminals, where it is stored and blended.  Nearby terminals in Maryland and Virginia are connected to pipelines owned by Colonial Pipeline or Plantation Pipe Line Company.  Fuel oils are ultimately distributed to customers in the District by truck.

 

Distillate fuel oil is essentially the same refinery-produced liquid as diesel fuel.  The only difference is that fuel oil is dyed red because it is not subject to the same taxes as diesel fuel used in vehicles.  See 26 C.F.R. § 48.4082-1 (2013).  Since 2006, there has been a Federal limit of fifteen parts per million (15 ppm) on the sulfur content of highway diesel fuels.  See 66 Fed. Reg. 5001 (January 18, 2001).

 

Fuel oils are combusted primarily to heat buildings during winter months. The combustion of fossil fuels containing sulfur results in emissions of pollutants such as fine particulate matter.  Fine particulate matter can cause serious health effects and premature mortality in humans, and contribute to environmental effects such as acid deposition and eutrophication. See 64 Fed. Reg. 35714 (July 1, 1999).  These rules will reduce emissions of fine particulate matter.  The District is a maintenance area under the 1997 annual national ambient air quality standard (NAAQS) for fine particulate matter. 

 

The combustion of fossil fuels containing sulfur also results in emissions of sulfur dioxide.  Sulfur dioxide emissions oxidize in the atmosphere to form sulfate particles and are the most significant pollutant involved in the formation of regional haze. Regional haze is a visibility impairment caused when fine particles from manmade or natural sources scatter and absorb sunlight.  See 64 Fed. Reg. 35714 (July 1, 1999).  Regional haze from manmade air pollution has reduced the visibility range in the eastern United States substantially, from an average of ninety miles to an average of between fifteen and twenty-five miles. See

http://www.epa.gov/visibility/what.html.  Sulfate particles account for the largest percentage of the total fine particle mass on the twenty percent (20%) haziest days in the mid-Atlantic and northeast regions, according to the 2006 "Contribution Assessment" prepared by the MANE-VU. See Contributions to Regional Haze in the Northeast and Mid-Atlantic United States, MANE-VU Contribution Assessment, August 2006, p. 2-1.  These rules will allow the District to meet its commitment to MANE-VU to implement reasonable measures that are part of a coordinated course of action designed to assure reasonable further progress towards reducing regional haze. 

 

In 1977, Congress amended the Federal Clean Air Act (CAA) by adding Section 169A (relating to visibility protection for Federal class I areas), which “declares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.” See 42 USCA § 7491(a)(1). The EPA promulgated its Regional Haze Rule in 1999 (64 Fed. Reg. 35714, July 1, 1999) and amended it in 2005 (70 Fed. Reg. 39104, July 6, 2005). EPA’s regulations require all states, even those that do not contain a Federal Class I area, to submit a State Implementation Plan (SIP) revision containing emission reduction strategies to improve visibility in Class I areas that their emissions affect.  The EPA regulations require states to demonstrate reasonable progress toward meeting the national goal of a return to natural visibility conditions by 2064. The regulations also encourage states to address haze through regional planning organizations.  See 64 Fed. Reg. 35714, 35720 (July 1, 1999).

 

The District intends to accomplish this objective through participation in MANE-VU.  As previously noted, MANE-VU was formed by the Mid-Atlantic and Northeastern states, tribes, and federal agencies to coordinate regional haze planning activities for the region. The organization includes portions of Pennsylvania, Delaware, New Jersey, and New York, as inner zone states, as well as Connecticut, Maine, Maryland, Massachusetts, New Hampshire, Rhode Island, Vermont, and the District, as outer zone states.  On June 20, 2007, MANE-VU adopted a tiered strategy to meet the requirement to make reasonable further progress toward reducing regional haze. 

 

Once finalized, this regulation will be submitted to EPA as a SIP revision.

 

Public Hearing

 

Notice is hereby given that a public hearing on these regulations will be held on August 3, 2015, at 5:00 p.m. in Room 555 at 1200 First Street, N.E., 5^th Floor, in Washington, D.C.  This public outreach meeting will afford interested parties an additional opportunity to comment on the proposed regulations.

 

Chapter 1, GENERAL RULES, of Title 20 DCMR, ENVIRONMENT, is amended as follows:

 

Section 199, DEFINITIONS AND ABBREVIATIONS, is amended as follows:

 

Section 199 is amended to add the following definition:

 

ASTM – ASTM International, formally known as the American Society for Testing and Materials, develops international voluntary consensus standards that can be purchased at: http://www.astm.org/

 

The definition in Section 199 is amended to read as follows:

 

Distillate oil – any oil that meets the specifications of the American Society for Testing and Materials (ASTM) for number one (No. 1) and number two (No. 2) grades of fuel oil found in ASTM D 396, “Standard Specifications for Fuel Oil.”

 

Chapter 5, SOURCE MONITORING AND TESTING, of Title 20 DCMR, ENVIRONMENT, is amended as follows:

 

Section 502, SAMPLING, TESTS, AND MEASUREMENTS, is amended as follows:

 

Subsection 502.6 is amended to read as follows:

 

502.6               Testing of fuel oil shall be undertaken in accordance with the most current version of the following methods, as appropriate for the application:

 

(a)                To obtain fuel samples:

 

(1)               ASTM D 270, “Standard Method of Sampling Petroleum and Petroleum Products;”

 

(2)               ASTM D 4057, “Practice for Manual Sampling of Petroleum and Petroleum Products;” or

 

(3)               ASTM D 4177, “Standard Practice for Automatic Sampling of Petroleum and Petroleum Products;”

 

(b)         To determine the fuel oil grade: ASTM D 396, “Standard Specification for

Fuel Oils;”

 

(c)          To determine the sulfur concentration of fuels:

 

(1)               ASTM D 129, “Standard Test Method for Sulfur in Petroleum Products (General Bomb Method);”

 

(2)               ASTM D 1266, “Standard Test Method for Sulfur in Petroleum Products (Lamp Method);”

 

(3)               ASTM D 1552, “Standard Test Method for Sulfur in Petroleum Products (High-Temperature Method”;

 

(4)               ASTM D 2622, “Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry;”

 

(5)               ASTM D 4294, “Test Method for Sulfur in Petroleum and Petroleum Products by Energy Dispersive X-ray Fluorescence Spectrometry;” or

 

(6)               ASTM D 5453, “Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Spark Ignition Engine Fuel, Diesel Engine Fuel, and Engine Oil by Ultraviolet Fluorescence;” and

 

(d)               Other methods developed or approved by the Department or the Administrator of the United States Environmental Protection Agency (EPA).

 

Chapter 8, ASBESTOS, SULFUR, NITROGEN OXIDES, AND LEAD, of Title 20 DCMR, ENVIRONMENT, is amended as follows:

 

Section 801, SULFUR CONTENT OF FUEL OILS, is amended as follows:

 

801                  SULFUR CONTENT OF FUEL OILS

 

801.1               The purchase, sale, offer for sale, storage, transport, or use of fuel oil that contains more than one percent (1%) sulfur by weight in the District is prohibited, if the fuel oil is to be burned in the District.

 

801.2               On and after July 1, 2016, commercial fuel oil that is purchased, sold, offered, stored, transported, or used in the District shall meet the following requirements, unless otherwise specified in § 801.5:

 

            (a)        Number two (No. 2) commercial fuel oil shall not contain sulfur in excess of five hundred parts per million (500 ppm) by weight, or five one-hundredths percent (0.05%) by weight;

 

            (b)        Number four (No. 4) commercial fuel oil shall not contain sulfur in excess of two thousand five hundred parts per million (2,500 ppm) by weight, or twenty-five one-hundredths percent (0.25%) by weight; and

 

            (c)        Number five (No. 5) and heavier fuel oils are prohibited.

 

801.3               On and after July 1, 2018, the purchase, sale, offer for sale, storage, transport, or use of number two (No. 2) commercial fuel oil is prohibited if it contains more than fifteen parts per million (15 ppm) or fifteen ten-thousandths percent (0.0015%) by weight of sulfur, unless otherwise specified in § 801.5.

 

801.4               Fuel oil that was stored in the District by the ultimate consumer prior to the applicable compliance date in §§ 801.2 or 801.3, which met the applicable maximum sulfur content at the time it was stored, may be used in the District after the applicable compliance date.

 

801.5               When the United States Environmental Protection Agency (EPA) temporarily suspends or increases the applicable limit or percentage by weight of sulfur content of fuel required or regulated by EPA by granting a waiver in accordance with Clean Air Act § 211(c)(4)(C) provisions, the federal waiver shall apply to corresponding limits for fuel oil in the District as set forth in §§ 801.2 or 801.3.

 

801.6               If a temporary increase in the applicable limit of sulfur content is granted under § 801.5:

 

                        (a)        The suspension or increase in the applicable limit will be granted for the duration determined by EPA; and

 

            (b)     The sulfur content for number two (No. 2) and lighter fuel oils may not exceed five hundred parts per million (500 ppm) by weight.

 

801.7               Unless precluded by the Clean Air Act or the regulations thereunder, subsections 801.2 and 801.3 shall not apply to:

 

                        (a)        A person who uses equipment or a process to reduce the sulfur emissions from the burning of a fuel oil, provided that the emissions may not exceed those that would result from the use of commercial fuel oil that meets the applicable limit or percentage by weight specified in §§ 801.2 or 801.3;

 

                        (b)        The owner or operator of a stationary source where equipment or a process is used to reduce the sulfur emissions from the burning of a fuel oil, provided that the emissions may not exceed those that would result from the use of commercial fuel oil that meets the applicable limit or percentage by weight specified in §§ 801.2 or 801.3; and

 

                        (c)        Commercial fuel oil that is transported through the District but is not intended for purchase, sale, offering, storage, or use in the District.

 

801.8               For the purpose of determining compliance with the requirements of this section, the sulfur content of fuel oil shall be determined in accordance with the sample collection, test methods, and procedures specified under § 502.6 (relating to sulfur in fuel oil).

 

801.9               The following recordkeeping and reporting requirements shall apply to any purchase, sale, offering for sale, storage, transportation, or use of commercial fuel oil in the District:

 

                        (a)        On or after the applicable compliance dates specified in §§ 801.2 and 801.3, at the time of delivery, the transferor of commercial fuel oil shall provide to the transferee an electronic or paper record of the fuel data described as follows, which must legibly and conspicuously contain the following information:

 

                        (1)        The date of delivery; 

 

                        (2)     The name, address, and telephone number of the transferor;

 

                        (3)     The name and address of the transferee;

 

                        (4)     The volume of fuel oil being sold or transferred;

 

                        (5)     The sulfur content of the fuel oil as determined using the sampling  and testing methods specified in § 801.8;

 

                        (6)     The date and time the tested sample was taken;

 

                        (7)        The location of the fuel oil during testing;

 

                        (8)        The type of test or test method performed; and

 

                        (9)        The fuel oil grade.

 

(b)     All applicable records required under paragraph (a) shall be maintained in electronic or paper format for not less than three (3) years;

 

(c)        An electronic or paper copy of the applicable records required under paragraph (a) shall be provided to the Department upon request;

 

(d)       The ultimate consumer shall maintain the applicable records required under (a) in electronic or paper format for not less than three (3) years, unless the transfer or use of the fuel oil occurs at a private residence; and

 

            (e)        General fuel specifications are not acceptable for the datum in paragraphs (a)(1) through (a)(8).

 

            (f)        General fuel specifications may be used for the datum in paragraph (a)(9) if:

 

                        (1)        The fuel supplier provides written certification that the fuel oil grade purchased from the terminal was the material delivered to the facility;

 

                        (2)        The fuel specifications include references to appropriate ASTM methods used to determine the fuel oil grade (as referenced in § 502.6); and

 

                        (3)        The Department may opt to require occasional supplemental sampling and testing of the fuel oil to confirm the certifications.

 

 

Section 899, DEFINITIONS AND ABBREVIATIONS, is amended as follows:

 

Section 899 is amended to add the following definitions:

 

Carrier – A distributor who does not take title to or otherwise have ownership of the commercial fuel oil or gasoline, and does not alter either the quality or quantity of the commercial fuel oil or gasoline.

 

Commercial fuel oil – A fuel oil specifically produced, manufactured for sale, and intended for use in fuel burning equipment. A mixture of commercial fuel oil with noncommercial fuel where greater than fifty percent (50%) of the heat content is derived from the commercial fuel oil portion is considered a commercial fuel oil.

 

Distributor – A person who transports, stores or causes the transportation or storage of commercial fuel oil or gasoline at any point between a refinery, a blending facility or terminal and a retail outlet, wholesale purchaser-consumer's facility or ultimate consumer. The term includes a refinery, a blending facility, or a terminal.

 

Noncommercial fuel – A gaseous or liquid fuel generated as a byproduct or waste product that is not specifically produced and manufactured for sale. A mixture of a noncommercial fuel and a commercial fuel oil when at least fifty percent (50%) of the heat content is derived from the noncommercial fuel portion is considered a noncommercial fuel.

 

Retail outlet – An establishment where commercial fuel oil or gasoline is sold or offered for sale to the ultimate consumer for use in a combustion unit or motor vehicle, respectively.

 

Terminal – A facility that is capable of receiving commercial fuel oil or gasoline in bulk, that is, by pipeline, barge, ship or other transport, and where commercial fuel oil or gasoline is sold or transferred into trucks for transportation to retail outlets, wholesale purchaser-consumer’s facilities, or ultimate consumers. The term includes bulk gasoline terminals and bulk gasoline plants.

 

Transferee – A person who is the recipient of a sale or transfer. The term includes the following: 

(a)        Terminal owner or operator; 

(b)        Carrier; 

(c)        Distributor; 

(d)    Retail outlet owner or operator; and 

(e)        Ultimate consumer. 

 

Transferor – A person who initiates a sale or transfer. The term includes the following: 

(a)                Refinery owner or operator; 

(b)               Terminal owner or operator; 

(c)                Carrier;

(d)               Distributor; and  

(e)     Retail outlet owner or operator. 

 

Ultimate consumer – With respect to a commercial fuel oil transfer or purchase, the last person, facility owner or operator or entity who in good faith receives the commercial fuel oil for the purpose of using it in a combustion unit or for purposes other than resale.

 

Public Participation

 

Comments on these proposed rule must be submitted, in writing, no later than thirty (30) days after the date of publication of this notice in the D.C. Register to Ms. Jessica Daniels, District Department of the Environment, Air Quality Division, 1200 First Street, NE, 5th Floor, Washington, D.C. 20002 or sent electronically to [e-mail]. Copies of the proposed rule and ASTM methods adopted by reference may be obtained between the hours of 9:00 a.m. and 5:00 p.m. at the address listed above for a small fee to cover the cost of reproduction or on-line at http://ddoe.dc.gov.

 

All comments will be treated as public documents and may be made available for public viewing on the Department’s website. When the Department identifies a comment containing copyrighted material, the Department will provide a reference to that material on the website. The Department will look for the commenter’s name and address on the comment. If a comment is sent by electronic mail (“email”), the email address will be automatically captured and included as part of the comment that is placed in the public record to be made available on the Department’s website. If the Department cannot read a comment due to technical difficulties, and the email address contains an error, the Department may not be able to contact the commenter for clarification and may not be able to consider the comment. Including the commenter’s name and contact information in the comment will avoid this difficulty.