

[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
