Draft Boutique Fuels List Under Section 1541(b) of the Energy
Policy Act and Request for Public Comment
[Federal Register: June 6, 2006 (Volume 71, Number 108)]
[Notices]
[Page 32532-32536]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn06-51]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2006-0340; FRL-8180-3]
Draft Boutique Fuels List Under Section 1541(b) of the Energy
Policy Act and Request for Public Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Energy Policy Act of 2005 includes a number of provisions
addressing the issue of boutique fuels. Section 1541(b) of this Act
requires EPA, in consultation with the Department of Energy, to
determine the total number of fuels approved into all state
implementation plans (SIPs) as of September 1, 2004, under section
211(c)(4)(C) of the Clean Air Act (CAA). The EPAct also requires us to
publish a list of such fuels, including the states and Petroleum
Administration for Defense District (PADD) in which they are used for
public review and comment. Today we are publishing the draft list along
with an explanation of our rationale in developing it. The list
consists of seven different types of SIP boutique fuels.
DATES: Comments must be received on or before August 7, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0340, by one of the following methods:
? http://www.regulations.gov 
Follow the on-line
instructions for submitting comments.
? E-mail: a-and-r-docket@epa.gov.
? Fax: (202) 566-1741, Attention Docket ID No. EPA-HQ-OAR-
2006-0340.
? Mail: Air Docket, Attention Docket ID No. EPA-HQ-OAR-2006-
0340, Environmental Protection Agency, Mailcode: 6102T, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
? Hand Delivery: USEPA, Air Docket, 1301 Constitution Ave,
NW., Room B102, Washington, DC 20004, Attention Docket ID No. EPA-HQ-
OAR-2006-0340. Such deliveries are only accepted during the Docket's
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0340. Our policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov , including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information for which
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov
The http://www.regulations.gov . Web site
is an ``anonymous access'' system, which means we will not know your
identity or contact information unless you provide it in the body of your
comment. If you send an e-mail comment directly to us without going
through http://www.regulations.gov , your e-mail address
will be automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, we recommend that you include your name
and other contact information in the body of your comment and with any
disk or CD you submit. If we cannot read your comment due to technical
difficulties and cannot contact you for clarification, we may not be
able to consider your comment. Electronic files should avoid the use of
special characters, should not use any form of encryption, and should
be free of any defects or viruses. For additional information about our
public docket visit the EPA Docket Center homepage at
http://www.epa.gov/epahome/dockets.htm. For additional instructions on
submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index,
some information is not publicly available, e.g., CBI or other information
for which disclosure is restricted by statute. Certain other material,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Anne Pastorkovich, Environmental
Protection Agency, MC 6406J, 1200 Pennsylvania Ave., NW., Washington,
DC 20460; telephone number: 202-343-9623; fax number: 202-343-2801; e-
mail address: pastorkovich.anne-marie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit CBI to us through http://
www.regulations.gov or e-mail. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in a
disk or CD that you mail to EPA, mark the outside of the disk or CD as CBI
and then identify electronically within the disk or CD the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of
[[Page 32533]]
the comment that does not contain the information claimed as CBI must
be submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
? Identify the rule or notice by docket number and other
identifying information (subject heading, Federal Register date and
page number).
? Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
? Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
? Describe any assumptions and provide any technical
information and/or data that you used.
? If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
? Provide specific examples to illustrate your concerns, and
suggest alternatives.
? Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
? Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs. You may be charged a reasonable fee for
photocopying docket materials, as provided by 40 CFR part 2.
II. Publication of the Boutique Fuels List
A. Background
Under the Clean Air Act (CAA),\1\ state fuel programs respecting a
fuel characteristic or component that we have regulated under section
211(c)(1) are preempted. EPA may waive preemption through approval of
the fuel program into a State Implementation Plan (SIP). Approval into
the SIP requires a demonstration that the state fuel program is
necessary to achieve the National Ambient Air Quality Standards
(NAAQS)\2\ that the plan implements. ``Necessary'' means that no other
measures exist that would bring about timely attainment or that other
measures exist and are technically possible to implement, but are
unreasonable or impracticable.\3\ These state fuels programs are often
referred to as ``boutique'' fuels programs because they differ from the
Federal fuel required in the area, and have been adopted by the state
to address a specific local air quality issue. The issue presented by
boutique fuels is that when events (such as hurricanes or pipeline and
refinery breakdowns) lead to fuel supply shortages, varying fuel
standards can complicate the process of quickly solving the problem.
The Energy Policy Act of 2005 (EPAct) amends the CAA and places three
additional restrictions on our authority to waive preemption by
approving a state fuel into the SIP. These restrictions are:
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\1\ See CAA section 211(c)(1), 42 U.S.C. 7545(c)(1).
\2\ NAAQS are standards for ambient levels of certain air
pollutants (e.g. ground-level ozone) and are designed to protect
public health and welfare.
\3\ See CAA section 211(c)(4)(C)(i), 42 U.S.C. 7545(c)(4)(C)(i).
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? First, we may not approve a state fuel program into the
SIP if it would cause an increase in the ``total number of fuels''
approved into SIPs as of September 1, 2004.\4\ To implement this
provision, we are required to determine the total number of fuels
approved as of that date and to publish a list identifying the fuels,
including the states and PADD in which they are used. We may remove a
fuel from the list if it ceases to be included in the SIP, or if it is
identical to a Federal fuel control. This removal does not reduce the
total number of fuels authorized under the list, but in effect ``makes
room'' for potential approval of state fuel programs that were not on
the list as of September 1, 2004.\5\
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\4\ See CAA section 211(c)(4)(C)(v)(I), 42 U.S.C. 7545(c)(4)(C)(v)(I).
\5\ See CAA section 211(c)(4)(C)(v)(II)-(III), 42 U.S.C.
7545(c)(4)(C)(v)(II)-(III).
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? Second, in cases where our approval would not increase the
total number of fuels on the list because the total number of fuels in
SIPs at that point is below the number of fuels as of the September 1,
2004, then our approval requires a finding that the new fuel will not
cause supply or distribution problems or have significant adverse
impacts on fuel producibility in the affected or contiguous areas.\6\
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\6\ See CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C. 7545(c)(4)(C)(v)(IV).
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? Third, we may not approve a state fuel unless that fuel is
already approved in at least one SIP in the applicable PADD.\7\
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\7\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V). As discussed later in this notice, there is an
exception to the PADD restriction for a 7.0 psi RVP program.
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In this Federal Register notice, we provide our provisional
interpretation of the EPAct provisions and our determination of the
total number of fuels approved under CAA section 211(c)(4)(C) as of
September 1, 2004, based on this interpretation, and the resulting
draft list of these fuels. We invite comment on all of these matters
and after evaluating all comments we will issue a final list.
B. Fuel Type Versus State Specific Interpretation and Our Recommended
Approach
The first step in determining the total number of fuels approved
under section 211(c)(4)(C) is to interpret what is meant by the term
``total number of fuels.'' The EPAct does not define this term, and the
legislative history is relatively limited and does not resolve what
Congress meant. We believe that the central term ``total number of
fuels'' is ambiguous and could potentially be interpreted in one of two
basic ways:
? Fuel Type Interpretation--Each type or kind of fuel could
be considered a separate fuel, without respect to the number of
different state implementation plans that include such fuel. For
example, all state fuels with a Reid Vapor Pressure\8\ of 7.8 pounds
per square inch (psi) could be considered one fuel in determining the
total number of fuels approved as of September 1, 2004. While several
states had a 7.8 psi RVP program on that date, they would not be
treated as different fuels in determining the ``total number of
fuels,'' but as different states using a single fuel type. For ease of
reference this will be called ``the fuel type interpretation.'' This
would result in seven (7) different fuel types.
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\8\ Reid Vapor Pressure is the common measure of fuel
volatility. Volatility is the tendency of fuel to evaporate.
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? State Specific Interpretation--As an alternative to the
``fuel type interpretation,'' each individual state using a type or
kind of fuel in a SIP could be considered a separate fuel. For example,
each state having 7.8 psi RVP in its SIP could be treated as having a
separate fuel for purposes of determining the ``total number of
fuels.'' For ease of reference, this will be called ``the state
specific interpretation.'' The state specific interpretation would lead
to as many fuels as there are state fuel programs in the various PADDs
and would result in 15 different fuels.
The two interpretations would lead to different results when
considering approval of future state fuel programs. For example, under
the fuel type interpretation, a state RVP program of 7.8 or 7.2 psi
could generally be approved under the EPAct provisions, as long as that
same RVP program was already in a SIP within that PADD. Under the fuel
type interpretation, approval of that state RVP program would not
increase the total number of
[[Page 32534]]
approved fuels because that type of RVP program is already on the list.
It would expand the number of states using that fuel type, but would
not increase the number of fuel types. However, under the state
specific fuel interpretation, the same state RVP program could not be
approved unless some other state fuel program had been removed from the
list, in effect ``making room'' for the newer program.
EPA recognizes that a few states had a 9.0 psi RVP fuel program in
their SIP as of September 1, 2004. We do not believe that state RVP
programs that require 9.0 psi should be included in the boutique fuels
list required by EPAct. Beginning in 1989, we set RVP standards under
CAA section 211(c) for gasoline sold during the summertime, in two
phases (Phase I and II). Generally, under Phase I, which was effective
in the summer of 1989, we set the RVP level at 10.5 psi in the northern
states, and under Phase II, which was effective in the summer of 1992,
we set RVP levels at 9.0 psi in the northern states. Between 1989 and
1992, we also approved state 9.0 psi RVP fuel programs into the SIPs
for several northeastern states, under CAA section 211(c)(4)(C). These
fuel programs continue to be included in the state SIPs. As earlier
mentioned, the EPAct requires that we publish a list based on the total
number of fuels approved into SIPs under section 211(c)(4)(C) as of
September 1, 2004.\9\ We are also required to remove a fuel from the
published list if the fuel is ``identical to a Federal fuel formulation
implemented by the Administrator.''\10\ Because the current Federal RVP
requirement in all of these northeastern states is 9.0 psi RVP, reading
these provisions literally would require EPA to include 9.0 psi RVP on
the list but to remove it from the list at the same time. We believe,
however, that Congress would not have intended this somewhat illogical
approach, and we also do not believe that 9.0 psi RVP would be viewed
as contributing to the proliferation of ``fuel islands'' that Congress
was concerned about in enacting this new provision. We believe the
appropriate way to reconcile these apparently conflicting provisions
are not to include the current state 9.0 psi RVP programs on the list.
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\9\ See CAA section 211(c)(4)(C)(v)(II), 42 U.S.C. 7545(c)(4)(C)(v)(II).
\10\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
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In evaluating these two interpretations, we also looked to the
EPAct provisions related to the boutique fuels list. The EPAct requires
that we publish a list based on the total number of fuels approved into
SIPs as of September 2004, identifying usage by state and PADD.\11\
Under the state specific fuel interpretation, the requirement to
``includ[e] the states * * * in which they are used'' in the published
list of fuels would appear to be redundant, as under that
interpretation the identification of the fuel is by definition state
specific. Under the fuel type interpretation, the requirement to
provide usage by state and PADD is logically included for informational
purposes.
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\11\ See CAA section 211(c)(4)(C)(v)(II), 42 U.S.C.
7545(c)(4)(C)(v)(II).
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We must remove a fuel from the published list if the fuel is
removed from ``a [SIP]'' or if ``a fuel in a [SIP]'' is identical to a
federal fuel.\12\ Under the state specific interpretation, the use of
the word ``a'' would mean that modification of a single SIP program
would affect the list of fuels, regardless of fuel type. Under the fuel
type interpretation, ``a [SIP]''would have to be read to mean all SIPs.
A fuel type would be removed from the list only if it was removed from
all SIPs with that type of fuel program.
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\12\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
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The EPAct refers to a ``new fuel.'' \13\ Specifically, it provides
that before approving a ``new fuel'' into a SIP, where there is room on
the list for additional fuels, we must make a finding concerning impact
on fuel supply, distribution, and producibility. Under the state
specific fuel interpretation, a ``new fuel'' would be a new state
specific fuel that EPA has not already approved into a SIP. Under the
fuel type interpretation, the term ``new fuel'' is problematic. A new
fuel type would be a fuel type that is not already on the list.
However, the PADD restriction\14\ would already preclude the approval
of a new fuel type, because a new fuel type would not already be
approved into a SIP in a PADD. There is, however, an exception to the
PADD restriction, for a 7.0 psi RVP program, such that there are
limited circumstances that would give meaning to the term ``new fuel''
under the fuel type interpretation.
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\13\ See CAA section 211(c)(4)(C)(v)(IV), 42 U.S.C.
7545(c)(4)(C)(v)(IV).
\14\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C. 7545(c)(4)(C)(v)(V).
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The EPAct constrains our approval of ``any fuel unless that fuel''
was already approved into at least one SIP in the applicable PADD.\15\
Under the state specific fuel interpretation, a state fuel could not be
approved unless ``that fuel'' had already been approved into another
state's SIP. In that context, ``that fuel'' would have to refer to the
type of fuel, not the state specific fuel, as the state specific fuel
could not be already approved into another state's SIP. Under the fuel
type interpretation, this provision requires that at least one SIP in
the PADD already have a program for that fuel type.\16\
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\15\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C. 7545(c)(4)(C)(v)(V).
\16\ As noted above, Congress exempted 7.0 psi RVP programs from
this PADD restriction. While the other EPAct provisions on boutique
fuels do apply to 7.0 psi RVP programs, the specific limitation on
PADD usage in section 211(c)(4)(C)(v)(V) does not apply. This is the
case under either interpretation.
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We believe that the EPAct boutique fuels provisions are ambiguous
and are susceptible to two plausible interpretations. However, the fuel
type interpretation appropriately balances the concerns at the heart of
the EPAct provision by preserving some flexibility for states to adopt
state fuel programs that can be useful in attaining the NAAQS, while
limiting the potential for fuel supply and distribution concerns by
controlling the growth in state boutique fuel programs.\17\ We
recognize that the PADD restriction \18\ places a strong constraint on
future approval of state specific fuels under either interpretation
because it effectively limits state fuels to the types currently in
existence and to the PADDs in which they are currently found. For a
state fuel program to be approved into a SIP in the future, the fuel
type must have been approved into a SIP in that PADD as of September 1,
2004 (with the one exception for 7.0 psi RVP programs). Under the fuel
type interpretation, states could generally adopt fuels programs but
only in those limited cases where that fuel type is already found in
their PADD. This addresses the ``fuel islands'' concerns, while
preserving an important degree of state flexibility in developing a
state's air pollution control program. Under the state specific
interpretation there is little, if any, opportunity for a state to
adopt a fuel program in the future. This is because, in addition to the
PADD restriction, some other state's fuel program would have to be
removed from the list to make room for addition of the new state fuel
program.
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\17\ See 51 Cong. Rec. H6949-01, 6968-6969.
\18\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C. 7545(c)(4)(C)(v)(V).
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We believe the fuel type interpretation is the more appropriate of
the two interpretations from the standpoint of state flexibility in
establishing air pollution control programs. Our suggested
interpretation would also strictly limit the burden of new state fuel
programs upon regulated
[[Page 32535]]
industry, including small businesses. The fuel type interpretation,
combined with the PADD restriction, clearly limits the introduction of
new boutique fuels, avoiding future pressure on the production,
distribution and storage of fuels, including small entities involved in
those industries. We believe that issuing this list will reduce future
burdens on all parties in the fuel production and distribution system,
whether large entities or small entities. We believe that issuing this
list will have no adverse impact on any such parties.
For the reasons described above, we are issuing a draft list of
seven (7) fuel types, as described in the following section.
C. Draft Boutique Fuel List
A list of the seven (7) fuel types approved into SIPs under section
211(c)(4)(C) as of September 1, 2004, the states, and the PADD they are
used in is set forth in the following Table:
Total Number of Fuels Approved in State Implementation Plans (SIPs)
Under CAA Section 211(c)(4)(C) as of September 1, 2004
[Draft based upon fuel type interpretation]
------------------------------------------------------------------------
Type of fuel control PADD Region--state
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RVP of 7.8 psi..................... 1 1--ME (May 1-Sept. 15).
1 3--PA
2 5--IN
2 5--MI
3 6--TX (May 1-Oct. 1)
RVP of 7.2 psi..................... 2 5--IL
RVP of 7.0 psi..................... 2 7--KS
2 7--MO
3 4--AL
3 6--TX
5 9--AZ (June 1-Sept. 30).
RVP of 7.0 psi with sulfur 1 4--GA
provisions.
Low Emission Diesel................ 3 6--TX
Cleaner Burning Gasoline........... 5 9--AZ
Winter Gasoline (aromatics & 5 9--NV
sulfur).
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We would use this recommended list in implementing the three EPAct
criteria for approval of a state fuel into a SIP. Specifically:
? We could not approve a state fuel if it would cause an
increase in the total number of fuel types on the list.\19\
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\19\ See CAA section 211(c)(4)(C)(v)(I), 42 U.S.C.
7545(c)(4)(C)(v)(I).
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? We would remove a fuel from the list if that fuel type
either ceased to be included in any SIP or if it became identical to a
Federal fuel. Removal of a fuel type from the list, however, would not
change or impact the total number of fuel types authorized.\20\
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\20\ See CAA section 211(c)(4)(C)(v)(III), 42 U.S.C.
7545(c)(4)(C)(v)(III).
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Our authority to approve a state fuel is limited to fuel types that
are already in a SIP in that PADD.\21\ This restriction would not
extend to the 7.0 psi RVP fuel type. EPA's approval of a 7.0 psi RVP
program would, however, be subject to the other EPAct provisions.
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\21\ See CAA section 211(c)(4)(C)(v)(V), 42 U.S.C.
7545(c)(4)(C)(v)(V) and footnote 14.
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We are not recommending a state specific interpretation, as
explained above. However, we have generated the following table to
illustrate the list under that alternative:
Total Number of Fuels Approved in State Implementation Plans (SIPs)
Under CAA Section 211(c)(4)(c) As of September 1, 2004 Alternate
Approach
[Draft based upon state specific interpretation]
------------------------------------------------------------------------
Type of fuel control PADD Area/state
------------------------------------------------------------------------
RVP of 7.0 psi..................... 2 Kansas City, MO (3
counties).
RVP of 7.0 psi..................... 2 Kansas City, KS (2
counties).
RVP of 7.0 psi..................... 3 El Paso, TX (El Paso
County).
RVP of 7.0; extended summer season 5 Phoenix, AZ (Maricopa
from June 1 to September 30. County).
RVP** of 7.0 psi; includes a 1 Atlanta, GA (45 county
provision addressing sulfur area).
content.
RVP of 7.0 psi; sulfur content and 3 Birmingham, AL (2
crediting provision expired in counties).
2004, when overtaken by Federal
Tier 2 limit.
RVP of 7.2 psi..................... 2 E. St. Louis, IL (3
counties near St. Louis,
MO).
RVP of 7.8 psi..................... 1 Pittsburgh, PA (7 county
area).
RVP of 7.8 psi..................... 2 Clark & Floyd, IN (2
counties near Louisville,
KY).
RVP of 7.8 psi..................... 2 Detroit, MI (7 counties).
RVP of 7.8 psi; extended summer 1 Southern, ME (7 county
season from May 1 to September 15. area).
RVP of 7.8; extended summer season 3 Central & Eastern, TX (95
from May 1 to October 1. county area).
Low emission diesel fuel with 3 Houston & Dallas, TX.
maximum 10% volume aromatic
hydrocarbon content and minimum
cetane of 48 required. (Allows
substitute Plans w/equivalent NOX
reductions).
Cleaner Burning Gasoline; similar 5 Phoenix, AZ (Maricopa
to Federal RFG or California RFG County).
in summer; in winter similar only
to California RFG.
[[Page 32536]]
Winter gasoline controls on 5 Las Vegas, NV.
aromatic hydrocarbons and sulfur.
------------------------------------------------------------------------
We invite comment on all elements of this notice, especially with
regard to the recommended and alternate lists and our interpretation of
the relevant provisions of the EPAct. Interested parties should submit
comments according to the guidelines described at the beginning of this
notice. After fully considering comments received, we will generate and
publish a final list in the Federal Register.
Dated: May 31, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. E6-8726 Filed 6-5-06; 8:45 am]
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