[Federal Register Volume 64, Number 111 (Thursday, June 10, 1999)]
[Proposed Rules]
[Pages 31168-31170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14763]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI72-01-7280; FRL-6357-2]


Approval and Promulgation of State Implementation Plans; Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to disapprove a revision to Michigan's 
State Implementation Plan (SIP) which would change the State's 
definition of volatile organic compound (VOC). The Michigan Department 
of Environmental Quality (MDEQ) submitted this revision on August 20, 
1998 and supplemented it with a November 3, 1998, letter.

DATES: Comments on this proposed action must be received by July 12, 
1999.

ADDRESSES: You may send written comments to: Carlton T. Nash, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), United 
States Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
    Copies of the proposed SIP revision and EPA's analysis are 
available for inspection at the following location: United States 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone 
Kathleen D'Agostino at (312)886-1767 before visiting the Region 5 
Office.)

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Regulation Development Section (AR-18J), Air Programs Branch, 
Air and Radiation Division, United States Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
(312) 886-1767.

SUPPLEMENTARY INFORMATION:

A. Background Information
B. Contents of State Submittal and EPA's Evaluation
C. EPA's Proposed Action

A. Background

    On August 20, 1998, the MDEQ submitted to EPA a proposed revision 
to the Michigan SIP. MDEQ supplemented the proposed revision with a 
November 3, 1998, letter from Robert Irvine. The submittal included a 
revision to the State's definition of VOC, as well as other rule 
revisions and rescissions. In this document EPA is proposing action 
only on the revision to the definition of VOC, R 336.1122(f). We will 
address the remaining rule revisions and rescissions in separate 
rulemaking actions.

B. Contents of State Submittal and EPA's Evaluation

    The State's definition of the term ``volatile organic compound'' is 
``any compound of carbon, or mixture of compounds of carbon that 
participates in photochemical reactions, excluding the following 
materials, all of which do not contribute appreciably to the formation 
of ozone: * * * *'' The definition goes on to list the exempt 
compounds. The wording of the State definition is ambiguous, in that it 
could

[[Page 31169]]

imply that there are compounds, other than those listed, which arguably 
do not ``participate in photochemical reactions,'' and therefore may be 
excluded from the definition of VOC. Instead, the State should define 
the term VOC as all organic compounds except those that EPA has listed 
as negligibly photochemically reactive. (See 40 CFR 51.100(s).) As 
worded, the definition is unacceptable.
    The State has added the following substances as materials excluded 
from the State definition of VOC: acetone; cyclic, branched, or linear 
completely-methylated siloxanes; parachlorobenzotriflouride; 
trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); 
1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); 1,2-dichloro 1,1,2,2-
tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1-
dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-
142b); chlorodifluoromethane (HCFC-22); 1,1,1-trifluoro 2,2-
dichloroethane (HCFC-123); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-
124); trifluoromethane (HFC-23); pentafluoroethane (HFC-125); 1,1,2,2-
tetrafluoroethane (HFC-134); 1,1,1,2-tetrafluoroethane (HFC-134a); 
1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); and 
perfluorocarbon compounds which fall into these classes: cyclic, 
branched, or linear, completely fluorinated alkanes; cyclic, branched, 
or linear, completely fluorinated ethers with no unsaturations; cyclic, 
branched, or linear, completely fluorinated tertiary amines with no 
unsaturations; and sulfur containing perfluorocarbons with no 
unsaturations and with sulfur bonds only to carbon and fluorine. These 
compounds are on the list of compounds exempted from the Federal 
definition of VOC in 40 CFR 51.100(s), and their exclusion is 
acceptable.
    In addition to the compounds listed above, however, the State has 
included as an exempt compound, ``ingredient compounds in materials 
other than surface coatings that have a vapor pressure less than or 
equal to 0.1 millimeters of mercury at the temperature at which they 
are used.'' This is unacceptable because it contradicts established EPA 
policy and is inconsistent with the Federal definition of VOC found in 
40 CFR 51.100(s).
    In the past, MDEQ has cited EPA's similar treatment of certain VOCs 
in our Consumer Products rule to justify its proposed change. However, 
we noted in our proposed Consumer Products rule (61 FR 14531) that the 
we adopted the volatility threshold specifically for consumer products, 
to differentiate between products containing ingredients with higher 
volatility. Many consumer products would contain 100 percent VOC by 
definition, making all of them subject to rules designed to reduce VOCs 
from consumer products, unless we devised a means to distinguish them. 
To address this problem, we examined the possibility of targeting only 
those consumer products with relatively higher volatility. We also 
noted in the proposed rule for Consumer Products that it did not alter 
our overall VOC policy, which does not allow vapor pressure cutoffs, 
such as 0.1 mm Hg, to exempt compounds from the definition of VOC. 
Thus, the proposed Consumer Products rule did not redefine VOC, it 
proposed to adopt an applicability threshold based on pressure for that 
specific source category only.
    Michigan has proposed a change to the definition of VOC which would 
allow the State to use ``other methods and procedures acceptable to the 
department'' to determine compliance with emission limits if the 
methods listed in rules 336.2004 and 336.2040 do not result in accurate 
or reliable results. This represents unacceptable State discretion. The 
State must submit any change in test methods to EPA for our approval as 
a SIP revision.

C. EPA's Proposed Action

    To determine a rule's approvability, we must evaluate the rule for 
consistency with the requirements of the Clean Air Act, EPA regulations 
and the our interpretation of these requirements as expressed in EPA 
policy guidance documents. We have found Michigan's proposed SIP 
revision to be inconsistent with the Federal definition of VOC in 40 
CFR 51.100(s). The proposed revision is also inconsistent with EPA 
policy guidance documents, including: ``Issues Relating to VOC 
Regulation Cutpoints, Deficiencies and Deviations, Clarification to 
Appendix D of November 24, 1987 Federal Register Notice'' dated May 25, 
1988; EPA's policy memorandum dated June 8, 1989, from G. T. Helms, 
Chief, Ozone/Carbon Monoxide Programs Branch, entitled ``Definition of 
VOC: Rationale;'' EPA's policy memorandum dated April 17, 1987, from G. 
T. Helms, Chief, Control Programs Operations Branch, entitled 
``Definition of VOC;'' and EPA's policy memorandum dated April 17, 
1987, from G. T. Helms, Chief, Control Programs Operations Branch, 
entitled ``Definition of Volatile Organic Compounds (VOC's).'' 
Therefore, we are proposing to disapprove Michigan's SIP revision 
request.

II. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, E.O. 12875 requires EPA to develop an 
effective process permitting elective officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' This rule does not create a 
mandate on state, local or tribal governments. The rule does not impose 
any enforceable duties on these entities. Accordingly, the requirements 
of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is does not 
involve decisions intended to mitigate environmental health or safety 
risks.

[[Page 31170]]

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, E.O. 13084 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of tribal governments ``to provide meaningful and 
timely input in the development of regulatory policies on matters that 
significantly or uniquely affect their communities.'' This rule does 
not significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of E.O. 
13084 do not apply to this rule.

E. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. EPA's disapproval of the State request under Section 110 
and subchapter I, part D of the Clean Air Act does not affect any 
existing requirements applicable to small entities. Any pre-existing 
Federal requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state 
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    The EPA has determined that the disapproval action proposed does 
not include a Federal mandate that may result in estimated annual costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal disapproval 
action imposes no new requirements. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Ozone, and Volatile organic compounds.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: May 28, 1999.
Francis X. Lyons,
Regional Administrator, Region 5.
[FR Doc. 99-14763 Filed 6-9-99; 8:45 am]
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