Approval and Promulgation of State Implementation Plans; Michigan

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

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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.

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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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