[Federal Register Volume 72, Number 60 (Thursday, March 29, 2007)]
[Proposed Rules]
[Pages 14729-14734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5809]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2006-0976; FRL-8292-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Control of Gasoline Volatility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Ohio on February 14, 2006 and 
October 6, 2006, establishing a lower Reid Vapor Pressure (RVP) fuel 
requirement for gasoline distributed in the Cincinnati and Dayton 8-
hour ozone nonattainment areas. Ohio 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 
proposing to approve Ohio's fuel requirements into the Ohio SIP because 
EPA has found that the requirements are necessary for the Cincinnati 
and Dayton areas to achieve the 8-hour ozone national ambient air 
quality standard (NAAQS). This action is being taken under section 110 
of the CAA.

DATES: Comments must be received on or before April 30, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0976, by one of the following methods:
     www.regulations.gov: Follow the online instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (312) 886-5824.
     Mail: John M. Mooney, Chief, Criteria Pollutant Section, 
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 a.m. excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0976. EPA's 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 whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA 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 EPA 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, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. 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 
whose 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 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 legal 
holidays. We recommend that you telephone Francisco J. Acevedo, 
Environmental 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, 
[email protected].

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 Should I Consider as I Prepare My Comments for EPA?
II. Description of the SIP Revision and EPA's Action.
    A. What Is the Background for This Action?
    B. What Is Reid Vapor Pressure?
    C. What Are the Relevant Clean Air Act Requirements?
    D. How Has the State Met the Test Under Section 211(c)(4)(C)?
    E. What Are the Relevant Energy Policy Act Requirements?
    F. How Has the State Met the Relevant Energy Policy Act 
Requirements?
    G. Why Is EPA Taking This Action?
    H. What Other Relevant Materials Has the State Submitted?
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through 
http://

[[Page 14730]]

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-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM 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 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.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Description of the SIP Revision and EPA's Action

A. What Is the Background for This Action?

    On April 15, 2004, the EPA designated 5 counties in Cincinnati, 
Ohio (Hamilton, Butler, Clinton, Warren and Clermont counties--
Cincinnati-Hamilton, OH-KY-IN) and 4 counties in Dayton, Ohio (Clark, 
Greene, Miami, and Montgomery counties--Dayton-Springfield, OH) as 
nonattainment for the 8-hour ozone standard. Both areas have been 
designated Basic nonattainment with respect to the 8-hour ozone 
standard and they are required to attain the standard as expeditiously 
as practicable, but no later than June 2009.
    As part of the State of Ohio's (Ohio) efforts to bring these areas 
into attainment, the State is adopting and implementing a broad range 
of ozone control measures including control of emissions from auto 
refinishing operations, the reduction of VOC emission from portable 
fuel containers, the adoption of industrial solvent degreasing rules, 
and the implementation of a 7.8 pound per square inch (psi) RVP fuel 
program.
    Ohio originally proposed to replace the State's vehicle inspection 
and maintenance (I/M) program in Cincinnati and Dayton, which was 
discontinued by the State on December 31, 2005, with the requirement to 
supply 7.8 psi RVP gasoline to these areas starting in 2006. However, 
the State has since modified its original request and has asked that 
EPA act on the state's fuel waiver request to allow the use of 7.8 psi 
RVP gasoline in both areas. On February 14, 2006, Ohio submitted the 
fuel waiver request as a SIP revision and the submittal included 
adopted amended rules under Ohio Administrative Code Chapter 3745-72 
``Low Reid Vapor Pressure Fuel Requirements'' to require the use of 7.8 
psi RVP gasoline in the Cincinnati and Dayton areas beginning on June 
1, 2006.
    Soon after the State's February 14, 2006 submittal, the American 
Petroleum Institute (API) appealed the State's 7.8 psi RVP rule on the 
basis that there was insufficient time to implement the rule and that 
EPA had not yet issued a waiver under section 211(c)(4)(C) of the CAA, 
as amended. EPA conducted an informal survey of gasoline suppliers and 
determined that there was not enough 7.8 psi RVP gasoline to supply the 
Cincinnati and Dayton nonattainment areas during the 2006 ozone season. 
As part of the State's settlement with API on its appeal, Ohio agreed 
to revise the rule to delay the effectiveness of the rule until twelve 
months following the approval of a fuel waiver by EPA in order to 
ensure that there is sufficient time for the regulated community to 
prepare for the change.
    On July 10, 2006, the Ohio Environmental Protection Agency (OEPA) 
adopted amended rules under the Ohio Administrative Code Chapter 3745-
72 ``Low Reid Vapor Pressure Fuel Requirements'' to modify the 
implementation date for the required use of 7.8 psi RVP gasoline in the 
Cincinnati and Dayton areas to be one year after the approval of a fuel 
waiver under CAA amendments section 211(c)(4)(C). Public hearings on 
the amended rules were held on June 2, 2006, in Columbus, Ohio and the 
rules became effective on July 17, 2006.
    The OEPA submitted these amended low-RVP rules to EPA as a revision 
to the SIP on October 6, 2006. As part of the October 6, 2006 
submittal, OEPA included additional technical support for the SIP 
revision, including documentation supporting the State's request to 
waive the CAA preemption of State fuel controls pursuant to section 
211(c)(4) of the CAA. The documentation demonstrates that a low-RVP 
fuel is critical to the Cincinnati and Dayton ozone nonattainment areas 
attainment of the 8-hour ozone standard.

B. What Is Reid Vapor Pressure?

    Reid Vapor Pressure, or RVP, is a measure of a gasoline's 
volatility at a certain temperature and is a measurement of the rate at 
which gasoline evaporates and emits VOCs; the lower the RVP, the lower 
the rate of evaporation. The RVP of gasoline can be lowered by reducing 
the amount of its more volatile components, such as butane. Lowering 
RVP in the summer months can offset the effect of high summer 
temperatures upon the volatility of gasoline, which, in turn, lowers 
emissions of VOC. Because VOC is a necessary component in the 
production of ground level ozone in hot summer months, reduction of RVP 
will help areas achieve the NAAQS for ozone and thereby produce 
benefits for human health and the environment.
    The primary emission reduction benefit from low-RVP gasoline used 
in motor vehicles comes from reductions in VOC evaporative emissions; 
exhaust emission reductions are much smaller. Because oxides of 
nitrogen (NOX) are a product of combustion from motor 
vehicles, they will not be found in evaporative emissions, and low-RVP 
gasoline will have little or no effect on NOX.

C. What Are the Relevant Clean Air Act Requirements?

    In determining the approvability of a SIP revision, EPA must 
evaluate the proposed revision for consistency with the requirements of 
the CAA and EPA regulations, as found in section 110 and part D of the 
CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans).
    For SIP revisions approving certain state fuel measures, an 
additional statutory requirement applies. CAA section 211(c)(4)(A) 
prohibits state regulations respecting a fuel characteristic or 
component for which EPA has adopted a control or prohibition under 
section 211(c)(1), unless the state control is identical to

[[Page 14731]]

the federal control. Section 211(c)(4)(C) provides an exception to this 
preemption if EPA approves the state requirements in a SIP. Section 
211(c)(4)(C) states that the Administrator may approve an otherwise 
preempted state fuel standard in a SIP:

    Only if he finds that the State control or prohibition is 
necessary to achieve the national primary or secondary ambient air 
quality standard which the plan implements. The Administrator may 
find that a State control or prohibition is necessary to achieve 
that standard if no other measures that would bring about timely 
attainment exist, or if other measures exist and are technically 
possible to implement, but are unreasonable or impracticable.

    EPA's August, 1997 ``Guidance on Use of Opt-in to RFG and Low RVP 
Requirements in Ozone SIPs'' gives further guidance on what EPA is 
likely to consider in making a finding of necessity. Specifically, the 
guidance recommends breaking down the necessity demonstration into four 
steps: (1) Identifying the quantity of reductions needed to reach 
attainment; (2) identifying other possible control measures and the 
quantity of reductions each measure would achieve; (3) explaining in 
detail which of those identified control measures are considered 
unreasonable or impracticable; and, (4) showing that, even with the 
implementation of all reasonable and practicable measures, the state 
would need additional emission reductions for timely attainment, and 
that the state fuel measure would supply some or all of such additional 
reductions.
    EPA has evaluated the submitted SIP revision and has determined 
that it is consistent with the requirements of the CAA, EPA 
regulations, and conforms to EPA's completeness criteria in 40 CFR part 
51, Appendix V. Further, EPA has looked at Ohio's demonstration that 
the low-RVP fuel control is necessary in accordance with Section 
211(c)(4)(C) of the CAA and agrees with the State's conclusion that a 
fuel measure is needed to achieve the 8-hour ozone NAAQS.
    The SIP submittal contains: (1) 7.8 low vapor pressure gasoline 
waiver request for Cincinnati and Dayton; (2) Amendments to Ohio 
Administrative Code, Chapter 3745-72 ``Low Reid Vapor Pressure Fuel 
Requirements'', effective January 16, 2006 and July 17, 2006; (3) 
Additional support for 7.8 Reid Vapor Pressure fuel waiver dated 
October 6, 2006; and, (4) the public hearing records dated December 7, 
2005 and June 2, 2006.

D. How Has the State Met the Test Under Section 211(c)(4)(C)?

    CAA section 211(c)(4)(A) preempts certain state fuel regulations by 
prohibiting a State from prescribing or attempting to enforce any 
control or prohibition respecting any characteristic or component of a 
fuel or fuel additive for the purposes of motor vehicle emission 
control if the Administrator has prescribed under section 211(c)(1) a 
control or prohibition applicable to such characteristic or component 
of the fuel or fuel additive, unless the state prohibition is identical 
to the prohibition or control prescribed by the Administrator.
    EPA has adopted federal RVP controls under CAA sections 211(c) and 
211(h). See 56 FR 64704 (December 12, 1991). These regulations are 
found in 40 CFR 80.27. The State of Ohio is currently required under 
the federal rule to meet a 9.0 psi RVP standard. See 40 CFR 
80.27(a)(2).
    As stated previously, a State may prescribe and enforce an 
otherwise preempted low-RVP requirement only if the EPA approves the 
control into the State's SIP. In order to approve a preempted state 
fuel control into a SIP, EPA must find that the state control is 
necessary to achieve a NAAQS because no other measures that would bring 
about timely attainment exist or that such measures exist but are 
either not reasonable or practicable. Thus, to determine whether Ohio's 
low-RVP rule is necessary to meet the ozone NAAQS, EPA must consider 
whether there are other reasonable and practicable measures available 
to produce the emission reductions needed to achieve the 8-hour ozone 
NAAQS.
    To estimate the emission reductions needed in the Cincinnati and 
Dayton areas to achieve attainment of the ozone NAAQS, EPA used 
modeling information developed by the Lake Michigan Air Directors 
Consortium (LADCO). This analysis used the CAMx (Comprehensive Air 
Quality Model with Extensions) photochemical dispersion model to 
simulate expected concentrations throughout much of the Eastern United 
States. Using procedures recommended by EPA, LADCO used modeling 
results for 2002 and 2009 to estimate the reduction in ozone 
concentrations expected to occur by 2009. These results project that 
the emission reductions expected to occur by 2009 in the Cincinnati and 
Dayton areas will bring the areas into attainment of the 8-hour ozone 
standard. This modeling reflects emission reductions as if the vehicle 
inspection and maintenance program were still operating but with no 
reductions from low RVP gasoline. LADCO also modeled conditions for 
2008 and then projected concentrations to continue to exceed the 
standard. Therefore, EPA finds the level of emission reductions 
achieved by 2009 to represent the reductions necessary to attain the 
standard.
    Interpretation of the quantity of emission reductions needed to 
attain the ozone standard is complicated by the fact that ozone results 
from chemical reactions involving both VOC and NOX. A given 
air quality improvement (e.g., attaining the standard) can result from 
a variety of combinations of reductions of the emissions of these two 
precursors. That is, the quantity of VOC emission reduction needed to 
attain the standard is in part a function of the quantity of 
NOX emission reduction expected to occur.
    While other combinations of VOC and NOX emission 
reduction would also be expected to provide for attainment, EPA is 
using the combination of VOC and NOX emissions modeled by 
LADCO to define the emission reductions needed to attain the standard 
in the Cincinnati and Dayton areas. By this means, EPA determined that 
the necessary emission reductions for VOC in the Cincinnati area is 47 
tons per day and in the Dayton area is 21 tons per day, for a total of 
68 tons per day. EPA considers these amounts as the necessary VOC 
emissions reductions based on an expectation that NOX 
emissions will simultaneously be reduced by 202 tons per day in the 
Cincinnati area and by 39 tons per day in the Dayton area, for a total 
of 241 tons per day.
    Some of these emission reductions will be achieved by programs that 
have already been adopted, most notably including the Federal Motor 
Vehicle Control Program. In order to assess the need for low RVP fuel, 
EPA sought to estimate the quantity of emission reduction needed for 
attainment by 2008 beyond the reductions provided by these programs. 
Because the modeling suggests attainment by 2009, one year after the 
date by which attainment must begin, the one year's emission reduction 
(from 2008 to 2009) is an approximation of the additional emission 
reduction needed for the area to begin attaining by 2008. EPA estimated 
this one year's emission reduction as \1/7\ of the emission reduction 
expected between 2002 and 2009. Thus, EPA estimated that the additional 
emission reduction needed will be approximately 7 tons per day in the 
Cincinnati area and approximately 3 tons per day in the Dayton area, 
for a total of approximately 10 tons per day in the Cincinnati/Dayton 
area.

[[Page 14732]]

    Some features of these estimates warrant note. First, the deadline 
for Cincinnati and Dayton to meet the air quality standard is 2009, 
which means that any VOC reductions contributing to attainment would 
need to occur during the 2008 ozone season. Thus, the emission 
inventory and modeling information from LADCO do not directly assess 
whether the set of measures assumed in the analysis will suffice to 
assure timely attainment. Second, the emission inventory includes 
emission reductions that would be expected were Ohio to restart a 
vehicle inspection and maintenance program and does not include the 
emission reductions that are expected from use of low RVP gasoline. 
Third, while EPA believes that the modeling is adequate for purposes 
here, EPA recognizes that Ohio and other states are continuing to 
refine their emission inventories and modeling analyses, and EPA is not 
attempting to evaluate here whether the analysis would constitute an 
adequate attainment demonstration as required under CAA section 
172(c)(1). Moreover, under CAA section 211(c)(4)(C)(i), EPA is allowed 
to make a finding of necessity even if the plan for an area does not 
contain an approved demonstration of timely attainment. Fourth, EPA 
recognizes the uncertainties inherent in modeling. For this reason, EPA 
guidance recommends that states supplement the modeling with additional 
analyses to be used as weight of evidence in assessing whether the 
modeling overstates or understates the air quality improvement that is 
expected. The above estimates of reductions needed to attain the 
standard in the Cincinnati and Dayton areas are taken directly from 
LADCO modeling results without considering any additional analyses that 
Ohio may submit along with its attainment demonstrations.
    The State evaluated an extensive list of non-fuel alternative 
controls to determine if reasonable and practicable controls could be 
adopted and used to attain the 8-hour ozone NAAQS by the required 
deadline.
    The State evaluated a wide range of control measures, considering 
the following factors: VOC emission reduction potential; ability to 
implement the control measure expeditiously; cost; and, ease of 
implementation. Ohio summarized the results of this evaluation in a 
document entitled ``RVP Rule Waiver Request Addendum.''
    After evaluating a wide range of other controls for their 
reasonableness and practicability, four measures did rise to the top: 
the reduction of VOC emission from auto refinishing operations, the 
reduction of VOC emissions from portable fuel containers, the adoption 
of rules for industrial solvent degreasing, and, the lowering of 
gasoline vapor pressure to 7.8 psi during the summer months. Ohio 
determined that the rest of the control measures would not achieve 
emission reductions early enough to bring about timely attainment, were 
technically impossible to implement, and, were either unreasonable or 
impracticable.
    In the case of auto refinishing operations, the State has adopted 
rules that require high volume, low pressure spray equipment and 
additional work practice requirements. The State's analysis indicates 
that the application of such controls could yield emission reductions 
comparable to those from other source categories in the range of 
approximately 0.7 tons per day (including 0.4 tons per day in the 
Cincinnati area and 0.3 tons per day in the Dayton area), in a time 
period compatible with the State's commitment to attain the 8-hour 
NAAQS as expeditiously as possible. Ohio's evaluation also showed that 
VOC reductions in the range of 4.3 tons per day (including 2.6 tons per 
day from the Cincinnati area and 1.7 tons per day in the Dayton area) 
could be achieved through the adoption of industrial solvent cleaning 
(degreasing) regulations. In addition, the implementation of statewide 
rules requiring the use of newly designed spill proof portable fuel 
containers would achieve a modest reduction of about 0.4 tons per day 
across the Cincinnati/Dayton area by 2008.
    The State's analysis identified that adoption of all measures 
determined to be reasonable and practicable would at most result in 
approximately 5.2 tons per day of emission reductions by 2008. Thus, 
even with implementation of all reasonable and practicable non-fuel 
control measures, additional VOC reductions are necessary.
    Ohio's 7.8 psi RVP fuel requirement, which includes a 1 psi 
exemption for ethanol blended fuels, is calculated to achieve 
approximately 4.6 tpd of VOC reductions in Cincinnati and 4.2 tpd of 
VOC reductions in Dayton beginning the summer of 2008. EPA believes 
these emission reductions are necessary to achieve the ozone NAAQS in 
both areas. EPA is basing today's action on the information available 
to us at this time, which indicates that adequate reasonable and 
practicable non-fuel measures that would achieve these needed emission 
reductions, and protect Ohio's air quality in a timely manner are not 
available to the State. Hence, EPA finds that the 7.8 psi RVP fuel 
program is necessary for attainment of the applicable ozone NAAQS, and 
is proposing to approve it as a revision to the Ohio SIP.

E. What Are the Relevant Energy Policy Act Requirements?

    The Energy Policy Act of 2005 (EPAct) amends the CAA by requiring 
EPA, in consultation with the Department of Energy (DOE), to determine 
the total number of fuels approved into all SIPs under section 
211(c)(4)(C), as of September 1, 2004, and to publish a list that 
identifies these fuels, the States and Petroleum Administration for 
Defense Districts (PADD) in which they are used. CAA section 
211(c)(4)(C)(v)(II). It also places three additional restrictions on 
EPA's authority to waive preemption by approving a State fuel program 
into the SIP.
    These restrictions are as follows:
     First, EPA may not approve a State fuel program into the 
SIP if it would cause an increase in the total number of fuel types 
approved into SIPs as of September 1, 2004.
     Second, in cases where EPA approval of a fuel would 
increase the total number of fuel types on the list but not above the 
number approved as of September 1, 2004, because the total number of 
fuel types in SIPs is below the number of fuel types as of September 1, 
2004, we are required to make a finding after consultation with 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.
     Third, with the exception of 7.0 psi RVP, EPA may not 
approve a state fuel into a SIP unless that fuel type is already 
approved in at least one SIP in the applicable PADD. CAA Section 
211(c)(4)(C)(v)(I), (IV) and (V).
    On December 28, 2006, EPA published the final notice containing the 
final interpretation, which was a fuel type interpretation, of the 
EPAct provisions (See 71 FR 78192). We also determined and published a 
list of the total number of fuels approved into all SIPs, under section 
211(c)(4)(C) as of September 1, 2004.

F. How Has the State Met the Relevant Energy Policy Act Requirements?

    Any approval of a 7.8 psi RVP program would be subject to the EPAct 
restrictions, described earlier above. More specifically, any approval 
of a 7.8 psi RVP program must not cause an increase in the total number 
of fuel types approved into all SIPs as of

[[Page 14733]]

September 1, 2004. Under our final interpretation, Ohio's 7.8 psi RVP 
requirement for the Cincinnati and Dayton areas is not a ``new fuel 
type.'' EPA's approval of Ohio's 7.8 psi RVP will not increase the 
total number of fuels approved into all SIPs, as of September 1, 2004, 
because 7.8 psi RVP is on the list of fuels types. Further, because 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, which we published on 
December 28, 2006 (71 FR 78192), we do not believe that we need to make 
a finding on the effect of a 7.8 psi RVP fuel requirement in Cincinnati 
and Dayton on fuel supply and distribution in either Cincinnati/Dayton 
or the contiguous areas. We note, however, that Ohio has delayed the 
effectiveness of the 7.8 psi RVP fuel requirements until twelve months 
following the EPA approval of its request for a fuel waiver in order to 
ensure that there is sufficient compliance time for the regulated 
community. Finally, because the 7.8 psi RVP fuel type is already 
approved in at least one SIP (Indiana (61 FR 4895, (February 9, 1996)) 
in the PADD where Ohio is located, EPA has determined that the Agency 
is not restricted from approving the 7.8 psi fuel program into the Ohio 
SIP.
    In today's action, we are proposing approval of Ohio's 7.8 psi RVP 
program as consistent with the provisions of EPAct.

G. Why Is EPA Taking This Action?

    EPA is proposing to approve a SIP revision at the request of the 
OEPA. To ensure that it secures the needed approval under section 
211(c)(4)(C) of the CAA, Ohio submitted this action for EPA approval to 
make it part of the SIP.

H. What Other Relevant Materials Has the State Submitted?

    On May 9, 2006, OEPA submitted several VOC rules for approval into 
the SIP and EPA published a proposed approval of these rules on 
December 6, 2006 (71 FR 70699). The rules include a provision requiring 
the use of lower emitting solvents in cold cleaner degreasers, the use 
of more efficient auto refinishing painting application techniques and 
a rule requiring the use of lower emitting portable fuel containers all 
which are discussed in this notice. In addition, EPA recently received 
a redesignation request from OEPA for the Dayton 8-hour ozone 
nonattainment area. EPA is currently reviewing the submittal and the 
implication of any of these additional materials on the approval of the 
fuel waiver request.

III. Proposed Action

    EPA is proposing to approve a SIP revision submitted by the State 
of Ohio on February 14, 2006 and October 6, 2006, establishing a 7.8 
psi RVP fuel requirement for gasoline distributed in the Cincinnati and 
Dayton 8-hour ozone nonattainment areas which include Montgomery, 
Miami, Greene, Clark, Hamilton, Butler, Warren and Clermont counties. 
EPA is proposing to approve Ohio's fuel requirements into the SIP 
because EPA has found that the requirements are necessary for the 
Cincinnati and Dayton areas to achieve the NAAQS for ozone.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This proposed 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.).

Regulatory Flexibility Act

    This proposed action merely proposes to approve state law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed 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 proposes to approve 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 (Pub. L. 104-4).

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 proposes to approve 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 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed 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 13045: Protection of Children From Environmental Health 
and Safety Risks

    This proposed 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 proposes approval of 
a state rule implementing a Federal Standard.

Executive Order 13211: Actions 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).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impractical. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program

[[Page 14734]]

submission that otherwise satisfies the provisions of the Clean Air 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

    Dated: March 22, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E7-5809 Filed 3-28-07; 8:45 am]
BILLING CODE 6560-50-P