[Federal Register: January 31, 2007 (Volume 72, Number 20)]
[Rules and Regulations]
[Page 4432-4435]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja07-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2006-0547; FRL-8274-4]
Approval and Promulgation of Air Quality Implementation Plans;
Michigan; Control of Gasoline Volatility
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 State of Michigan on May 26, 2006, and July 14, 2006,
establishing a lower Reid Vapor Pressure (RVP) fuel requirement for
gasoline distributed in the Southeast Michigan area which includes
Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and
Wayne Counties. Michigan has developed these fuel requirements to
reduce emissions of volatile organic compounds (VOC) in accordance with
the requirements of the Clean Air Act (CAA). EPA is approving
Michigan's fuel requirements into the Michigan SIP because EPA has
found that the requirements are necessary for Southeast Michigan to
achieve the 8-hour ozone National Ambient Air Quality Standard (NAAQS).
On August 15, 2006, the EPA published a Notice of Proposed Rulemaking
(NPRM) proposing to approve the SIP revision. During the comment period
EPA received adverse comments from one commenter.
This document summarizes the comments received, EPA's responses,
and finalizes the approval of Michigan's SIP revision to establish a
RVP limit of 7.0 pounds per square inch (psi) for gasoline sold in
Southeast Michigan.
DATES: This final rule is effective on March 2, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2006-0547. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, i.e., 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 either
electronically through http://www.regulations.gov or in hard copy at the
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone Francisco J. Acevedo,
Environmental
[[Page 4433]]
Protection Specialist, at (312) 886-6061 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental
Protection Specialist, Criteria Pollutant Section, Air Programs Branch
(AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-6061,
acevedo.francisco@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What is the background for this action?
II. What is our response to comments received on the notice of
proposed rulemaking?
III. Is this action consistent with provisions of the Energy Policy
Act (EPAct)?
IV. What action is EPA taking today?
V. Statutory and Executive Order Reviews.
I. What is the background for this action?
On June 15, 2004, the EPA designated eight counties in Southeast
Michigan as nonattainment for the 8-hour ozone standard (Detroit-Ann
Arbor CMSA--Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties). These counties were initially
classified under the CAA as Moderate, but EPA later reclassified them
as Marginal on September 22, 2004. See 69 FR 56697 (September 22, 2004)
for further details. As part of this reclassification, the Michigan
Department of Environmental Quality (MDEQ) and the Southeast Michigan
Council of Governments (SEMCOG) committed to a schedule to identify and
implement controls that will help the area attain by the Marginal
attainment date of June 15, 2007.
To bring this area into attainment, the State is adopting and
implementing a broad range of ozone control measures including control
of emissions from cement manufacturing, control of emissions from the
use of consumer/commercial products, and the implementation of a 7.0
psi low-RVP fuels program.
The State of Michigan submitted a SIP revision on May 26, 2006, and
July 14, 2006, which included legislation establishing a lower RVP fuel
requirement for gasoline distributed in the 8-hour ozone nonattainment
area portions of Southeast Michigan. In addition, Michigan submitted
additional technical support for the SIP revision, including materials
supporting the State's request to waive the CAA preemption of State
fuel controls pursuant to section 211(c)(4) of the CAA. On August 15,
2006, EPA proposed approval of the State's SIP revision to establish a
7.0 psi low-RVP fuel program in the Southeast Michigan area which
includes Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties. (See 71 FR 46879.) As detailed in the
proposed approval, EPA found the State's demonstration sufficient to
satisfy the necessity requirement of Section 211(c)(4)(C) of the CAA.
In addition, EPA also proposed approval of the State's SIP revision as
consistent with the provisions of the Energy Policy Act (EPAct), based
on our interpretation of the EPAct provisions discussed at 71 FR 32532
(June 6, 2006).
II. What is our response to comments received on the notice of proposed
rulemaking?
During the comment period we received two comment letters on the
August 15, 2006, proposal. The first, from the Grand Rapids Area
Chamber of Commerce, supported the proposed SIP approval and
recommended that it be implemented as quickly as possible. The second,
from the National Petrochemical and Refiners Association (NPRA), raised
concerns regarding whether the August 15, 2006, proposal addressed all
the pertinent requirements under EPAct needed to approve Michigan's
fuel waiver request. NPRA's comments are addressed below.
Comment: The NPRA expressed support for EPA's fuel controls
preemption review process, but commented that EPA could not approve
Michigan's request for a waiver from preemption of state fuel controls,
prior to finding, after public review and comment, that the proposed
new fuel would not cause either supply or distribution disruptions or
have an adverse impact on fuel producibility in the affected or
contiguous areas. The NPRA also stated that EPA should consult with the
Secretary of Energy and publish findings in the Federal Register that
the proposed new fuel will not cause supply or distribution disruptions
and will not have an adverse impact on fuel producibility in the
affected area or in contiguous areas.
Response: In our proposed approval of Michigan's waiver of
preemption to adopt a 7.0 psi RVP fuel program, we explained that the
EPAct amended CAA section 211(c)(4)(C) by requiring EPA, in
consultation with the Department of Energy (DOE), to determine the
total number of fuels approved into all SIPs as of September 1, 2004,
under section 211(c)(4)(C), and publish for public review and comment a
list of such fuels, including the state and Petroleum Administration
for Defense District (PADD) in which they are used. We explained that
the EPAct also placed three additional restrictions on our authority to
waive preemption by approving a state fuel into the SIP. Under one
restriction, where our approval of a new fuel would not increase the
total number of fuels approved into SIPs as of September 1, 2004,
because the total number of fuels at that point is below the number of
fuels approved into SIPs as of September 1, 2004, we make a finding,
after consultation with the DOE, that the new fuel will not cause
supply or distribution interruptions or have a significant adverse
impact on fuel producibility in the affected or contiguous areas.
We further explained that, on June 6, 2006, we had discussed an
interpretation of the EPAct that required EPA to identify and publish a
list of the total number of fuels approved into all SIPs as of
September 1, 2004, and imposed three restrictions on our ability to
approve future state fuel programs into SIPs.
We also explained that, based on our June 6, 2006, interpretation
of the EPAct amendments, Michigan's 7.0 psi RVP requirement for
Southeast Michigan would not increase the total number of fuels
approved into all SIPs, as of September 1, 2004, and was not a ``new
fuel type,'' because 7.0 psi RVP is on the published draft list of
fuels. We further explained that we did not need to make a finding,
after consultation with DOE, on the effect of a 7.0 psi RVP fuel
requirement in Southeast Michigan on fuel supply and distribution in
either Southeast Michigan or the contiguous areas because the fuel was
not a new fuel, and the total number of fuels approved into SIPs as of
our consideration of Michigan's 7.0 psi RVP fuel was not below the
number of fuels approved into SIPs as of September 1, 2004, or, in
other words, below the total number of fuels on the published draft
list. 71 FR 46879, 46882-46883 (August 15, 2006).
At proposal, we also referenced that an April 2005 American
Petroleum Institute study titled ``Potential Effects of the 8-Hour
Ozone Standard on Gasoline Supply, Demand and Production Costs,'' which
had concluded that the petroleum industry was capable of supplying 7.0
psi RVP fuel without any fuel supply or distribution disruptions. 71 FR
46879, 46882-46883.
We have now finalized the interpretation of the EPAct amendments,
and published our final list of fuels, subject to a few revisions. See
the final Federal Register notice
[[Page 4434]]
entitled ``Boutique Fuels List'' under Section 1541(b) of the Energy
Policy Act.'' 71 FR 78192 (December 28, 2006). Under this final
interpretation, because the 7.0 psi RVP is not a new fuel; and the
total number of fuels approved into all SIPs at this time is not below
the number of fuels on the final list of fuels, we are not required to
make a finding, after consultation with DOE, on the effect of
Michigan's 7.0 psi RVP fuel requirement in Southeast Michigan on fuel
supply and distribution in either Southeast Michigan or the contiguous
areas.
Comment: The commenter emphasized that the fuel supply analysis and
public comment duties outlined in the EPAct apply to this approval
process because currently there are no other summer maximum 7.0 psi RVP
conventional gasoline areas within hundreds of miles of Detroit and Ann
Arbor.
Response: As earlier explained, under the fuel type interpretation
that we have adopted, where there is a new fuel type and there is
``room'' on the fuels list, we may approve a state fuel program, after
consultation with the DOE, and a finding that the state fuel will not
cause either supply or distribution interruptions; or have a
significant adverse impact on fuel producibility in either the affected
or contiguous areas. This fuel is not a new fuel and the total number
of fuels approved into all SIPs at this time is not below the number of
fuels on the final list of fuels (See 71 FR 78192), therefore we do not
believe that we are required to make a finding on the effect of a 7.0
psi RVP fuel requirement in Southeast Michigan on fuel supply and
distribution in either Southeast Michigan or the contiguous areas. In
addition, EPA consulted with DOE and they have concurred with our
determination that the 7.0 psi Michigan fuel does not constitute a new
boutique fuel and hence a supply study is not required.
III. Is this action consistent with provisions of the Energy Policy Act
(EPAct)?
In a Federal Register notice published on June 6, 2006 (71 FR
32532), we discussed an interpretation of the EPAct provisions which
was based on a fuel type interpretation. We also identified and
published a draft list of the total number of fuels approved into all
SIPs as of September 1, 2004, pursuant to section 211(c)(4)(C)(i). On
August 15, 2006, we proposed approval of Michigan's SIP revision as
consistent with our June 6, 2006, interpretation of the EPAct
provisions. On December 21, 2006, EPA Administrator Stephen L. Johnson
signed a Federal Register notice containing EPA's final interpretation
of the EPAct provisions. The final notice was published in the Federal
Register on December 28, 2006. (See 71 FR 78192.) Our approval of
Michigan's 7.0 psi RVP program is consistent with EPA's final
promulgated interpretation of the EPAct.
IV. What action is EPA taking today?
EPA is approving a SIP revision submitted by the State of Michigan
on May 26, 2006, and July 14, 2006, establishing a 7.0 psi RVP fuel
requirement for gasoline distributed in Southeast Michigan which
includes Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties. EPA is approving Michigan's fuel
requirements into the SIP because EPA has found that the requirements
are necessary for Southeast Michigan to achieve the 8-hour NAAQS for
ozone. EPA's approval is consistent with the boutique fuel provisions
of section 211(c)(4)(C) enacted in EPAct.
V. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant regulatory action,'' this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001).
Regulatory Flexibility Act
This action merely approves state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
Unfunded Mandates Reform Act
Because this rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely approves a state rule implementing a
Federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
[[Page 4435]]
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement 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 rule 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).
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 April 2, 2007. 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, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: January 18, 2007.
Mary A. Gade,
Regional Administrator, Region 5.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart X--Michigan
0
2. The table in Sec. 52.1170(c) entitled, ``EPA Approved Michigan
Regulations'' is amended by adding a new entry in the ``State
Statutes'' section after ``House Bill 5016'' titled ``House Bill 5508''
to read as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(c) * * *
EPA--Approved Michigan Regulations
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State
Michigan citation Title effective EPA approval Comments
date date
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* * * * * * *
State Statutes
* * * * * * *
House Bill 5508.............. Amendment to 4/06/06 3/2/07, [Insert .................................
Motor Fuels page number
Quality Act, where the
Act 44 of 1984. document
begins].
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[FR Doc. E7-1421 Filed 1-30-07; 8:45 am]
BILLING CODE 6560-50-P