[Federal Register Volume 72, Number 110 (Friday, June 8, 2007)]
[Proposed Rules]
[Pages 31778-31781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2848]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0571; FRL-8324-1]
Approval and Promulgation of Implementation Plans for Arizona;
Maricopa County PM-10 Nonattainment Area; Serious Area Plan for
Attainment of the 24-Hour and Annual PM-10 Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On July 25, 2002, EPA approved under the Clean Air Act (CAA)
the serious area particulate matter (PM-10) plan for the Maricopa
County portion of the metropolitan Phoenix (Arizona) nonattainment area
(Maricopa County area). Among other things, EPA approved the best
available control measure (BACM) and most stringent measure (MSM)
demonstrations in the plan and granted the State's request for an
attainment date extension for the area. EPA's approval was challenged
in the U.S. Court of Appeals for the Ninth Circuit. In response to the
Court's remand, EPA reassessed the BACM and MSM demonstrations for the
significant source categories of on-road motor vehicles and nonroad
engines and equipment exhaust, specifically regarding whether
California Air Resources Board (CARB) diesel is a BACM and/or MSM. As a
result of this reassessment, EPA again approved the BACM and MSM
demonstrations in the plan and granted the State's request to extend
the attainment deadline from 2001 to 2006. In light of its recent
finding that the Maricopa County area failed to attain the 24-hour PM-
10 National Ambient Air Quality Standard (NAAQS) by December 31, 2006,
EPA is again reassessing the BACM and MSM demonstrations in the plan
and is again proposing to approve these demonstrations.
DATES: Any comments must arrive by July 9, 2007.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0571, by one of the folling methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions.
2. E-mail: [email protected].
3. Mail or deliver: Marty Robin, Office of Air Planning (AIR-2),
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Instructions: All comments 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 Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through the
eRulemaking portal or e-mail. The eRulemaking portal is an anonymous
access system, and EPA will not know your identity or contact
information unless you provide it in the body of your comment. 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.
Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region 9, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
apointment during normal business hours with the contact listed
directly below.
FOR FURTHER INFORMATION CONTACT: Carol Weisner, U.S. EPA Region 9,
(415) 947-4107, [email protected] or http://www.epa.gov/region09/air/actions.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Background
A. EPA's 2002 Approval
On July 25, 2002, EPA approved multiple documents submitted to EPA
by Arizona for the Maricopa County area as meeting the CAA requirements
[[Page 31779]]
for serious PM-10 nonattainment areas for the 24-hour and annual PM-10
national ambient air quality standards.\1\ Among these documents is the
``Revised MAG 1999 Serious Area Particulate Plan for PM-10 for the
Maricopa County Nonattainment Area,'' February 2000 (MAG plan) that
includes the BACM demonstrations for all significant source categories
(except agriculture) for both the 24-hour and annual PM-10 standards
and the State's request and supporting documentation, including the
most stringent measure analysis (except for agriculture) for an
attainment date extension for both standards. EPA's July 25, 2002 final
action included approval of these elements of the MAG plan.\2\
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\1\ Effective December 18, 2006, EPA revoked the annual PM-10
standard. 71 FR 61144 (October 17, 2006). References to the annual
standard in this proposed rule for historical purposes only. EPA is
not taking any regulatory action with regard to this former
standard.
\2\ For a detailed discussion of the MAG plan and the serious
area PM-10 requirements, please see EPA's proposed and final
approval actions at 65 FR 19964 (April 13, 2000), 66 FR 50252
(October 2, 2001) and 67 FR 48718 (July 25, 2002).
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Under CAA section 189(b)(2), serious area PM-10 plans must provide
assurances that BACM will be implemented no later than four years after
a moderate PM-10 nonattainment area is reclassified as serious. For the
Maricopa County area, the BACM implementation deadline was June 10,
2000. In short, a BACM demonstration starts with the identification of
all source categories contributing significantly to nonattainment of
the PM-10 NAAQS. Once the significant categories are identified, all
potential BACM for these categories must be identified and a reasoned
justification must be provided for any BACM that are not implemented.
All BACM that are economically and technologically feasible must be
implemented.\3\
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\3\ For a detailed discussion of EPA's preliminary
interpretation of the CAA's BACM requirements, see ``State
Implementation Plans for Serious PM-10 Nonattainment Areas, and
Attainment Date Waivers for PM-10 Nonattainment Areas Generally;
Addendum to the General Preamble for the Implementation of Title I
of the Clean Air Act Amendments of 1990,'' 59 FR 41998, 42008-42014
(August 16, 1994).
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In the case of the Maricopa County area, the MAG plan identified
eight significant PM-10 source categories, including on-road motor
vehicle and nonroad engines and equipment exhaust.4 5 In our
2002 approval of the MAG plan, we stated that Arizona had one of the
most comprehensive programs for addressing on-road motor vehicle
emissions and that the additional measures in the MAG plan would
strengthen and go beyond that program. For nonroad engines, EPA stated
that Arizona had committed to adopt measures that would strengthen the
overall nonroad engine program making it go beyond the existing federal
program. 65 FR at 19972-19974; 66 FR at 50258-50260. Strengthening and
expanding existing programs are key criteria for demonstrating the
implementation of BACM. 59 FR at 42013. EPA noted that CARB diesel was
rejected in the MAG plan as a BACM due to high costs, but believed the
cost analysis was too uncertain to judge. 65 FR at 19973; 67 FR at
48725. EPA concluded that, overall, the on-road and nonroad measures in
the MAG plan constituted BACM for the Maricopa County area without the
implementation of CARB diesel. 67 FR at 48725.
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\4\ ``Nonroad vehicles'' and ``nonroad engines'' are used
interchangeably in EPA's proposed and final approval actions on the
MAG plan. In addition, CARB and other state air agencies typically
refer to these sources as ``off-road.'' ``Nonroad engines and
equipment,'' ``nonroad vehicles,'' ``nonroad engines,'' ``nonroad''
and ``off-road'' are used interchangeably in today's proposed rule.
\5\ A list of all potential BACM was compiled for each of the
significant source categories and a detailed analysis of whether the
potential BACM were technically and economically feasible was
provided by the MAG plan and evaluated by EPA. 65 FR at 19964, 66 FR
at 50252.
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As a serious PM-10 nonattainment area, the Maricopa County area was
required to attain the annual and 24-hour PM-10 standards by no later
than December 31, 2001. CAA section 188(c)(2). However, CAA section
188(e) allows us to extend the attainment date for a serious PM-10
nonattainment area for up to five years if attainment by 2001 is
impracticable and certain specified additional conditions are met.
Among these conditions is that the State must demonstrate to our
satisfaction that its serious area plan includes the most stringent
measures that are included in the implementation plan of any state and/
or are achieved in practice in any state and are feasible for the area.
EPA determined that CARB diesel was not required as a MSM because it
did not advance the attainment date. Therefore EPA granted an
attainment date extension for the Maricopa County area without it. Id.
at 48739.
B. Vigil v. Leavitt
The Arizona Center for Law in the Public Interest (ACLPI), on
behalf of Phoenix area residents, subsequently filed in the U.S. Court
of Appeals for the Ninth Circuit a petition for review of EPA's
approval of several elements in the MAG plan. As relevant to this
proposed rule, ACLPI asserted that EPA's approval was arbitrary and
capricious because the plan did not mandate the use of CARB diesel and
thus did not satisfy the CAA requirements for BACM and MSM for mobile
sources. ACLPI further asserted that we granted an extension of the
statutory deadline for attainment to December 31, 2006 based on an
inadequate MSM demonstration.
On May 10, 2004, the Court issued its opinion which upheld EPA's
final approval in part but remanded to EPA the question of whether CARB
diesel must be included in the serious area plan as a BACM and a MSM.
Specifically, with respect to whether CARB diesel was appropriately
rejected as BACM, the Court stated that ``* * * Arizona has offered one
explanation, which EPA has declined to ratify, and EPA has not
proffered an adequate explanation of its own.'' The Court further
stated that ``[i]n light of our disposition with respect to CARB diesel
as a BACM, we remand to EPA for further consideration of whether CARB
diesel satisfies MSM as well.'' Finally, the Court remanded the
question of Maricopa County area's eligibility for an extension of the
attainment date to 2006, but only insofar as that question depends on
EPA's determination regarding CARB diesel as a MSM. Vigil v. Leavitt,
366 F.3d 1025, amended at 381 F. 3d 826 (9th Cir. 2004).
C. EPA's 2006 Approval
In response to the Vigil Court's remand, on August 3, 2006, EPA
again approved the BACM and MSM demonstrations in the MAG plan for the
significant source categories of on-road motor vehicles and nonroad
engines and equipment exhaust without CARB diesel and granted the
State's request to extend the attainment deadline from 2001 to 2006. 71
FR 43979. In this final action, EPA concluded that CARB diesel is not
feasible for on-road motor vehicles because Arizona would not be able
to obtain a CAA section 211(c)(4)(C)(i) waiver for purposes of PM-10
attainment. In reaching this conclusion, EPA reasoned that Arizona
would not be able to provide a demonstration that CARB diesel is
``necessary'' to achieve the PM-10 NAAQS, as required by that section,
because EPA had already approved the State's demonstration of
attainment of the PM-10 NAAQS without relying on CARB diesel. Id. at
43983. Also in this final action, EPA noted that in August 2005, CAA
section 211(c)(4)(C) was amended by the Energy Policy Act of 2005
(EPAct), 42 U.S.C. 15801 et seq., which placed additional restrictions
on EPA's authority under that provision. We did not, however, address
the effect of the new restrictions on our action
[[Page 31780]]
because of our conclusion that CARB diesel was not necessary to achieve
the NAAQS. Id. at 43980, footnotes 2 and 3.
With respect to nonroad engines and equipment, EPA concluded that
CARB diesel is not feasible because of the uncertainties with fuel
availability, storage and segregation and concerns about program
effectiveness due to owners and operators fueling outside the Maricopa
County area. Id.
II. Proposed Action
On March 23, 2007, EPA proposed to find that the Maricopa County
area \6\ failed to attain the 24-hour PM-10 NAAQS by the December 31,
2006 deadline mandated by the CAA. 72 FR 13723. On May 24, 2007, the
Regional Administrator signed a final rule finding that the Maricopa
County area failed to attain.\7\ As a result, the Agency can no longer
rely on its August 3, 2006 conclusion that the State would not be able
to obtain a section 211(c)(4)(C)(i) waiver for CARB diesel because it
is not necessary for attainment of the PM-10 NAAQS. Thus EPA has
reassessed the BACM demonstration for the onroad motor vehicle exhaust
source category in light of the new EPAct provisions that it did not
previously consider. As discussed further in section III.A. below, EPA
has concluded it could not approve a CAA section 211(c)(4)(C)(i) waiver
for Arizona for CARB diesel because the effect of such an approval
would unlawfully increase the total number of fuels approved into SIPs
under section 211(c)(4)(C) as of September 1, 2004. Therefore, EPA is
again proposing to approve the BACM demonstration in the MAG plan
without CARB diesel.
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\6\ In its proposed and final nonattainment finding actions, EPA
refers to the Maricopa County area as the Phoenix nonattainment
area. These terms are interchangeable.
\7\ The final rule will be published shortly in the Federal
Register.
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Because our August 2006 approval of the BACM demonstration for
nonroad engines and equipment exhaust relied to some extent on our
conclusion with respect to onroad motor vehicle exhaust, we are also
proposing again to find that CARB diesel is not required as a BACM for
the nonroad category because of the uncertainties with fuel
availability, storage and segregation and program effectiveness due to
owners and operators fueling outside the Maricopa County area.
Finally, since EPA granted the State's request for an attainment
date extension in August 2006, the December 31, 2006 attainment
deadline has passed. Therefore the extension request is now moot.
However, if CARB diesel had been required as a MSM in order for EPA to
grant the extension request, the State would now be required to
continue to implement it absent the requisite showing under CAA section
110(1). Therefore EPA is again proposing to approve the MSM
demonstration in the MAG plan without CARB diesel. We are also
confirming that we appropriately granted Arizona's request for an
attainment date extension in our 2002 and 2006 actions.
III. Reassessment of the BACM Demonstration for the Maricopa County
Area
A. On-Road Motor Vehicle Exhaust
Section 211(c)(4)(A) of the CAA generally preempts states from
prescribing or attempting to enforce controls respecting motor vehicle
fuel characteristics or components that EPA has controlled under
section 211(c)(1),\8\ unless the state control is identical to the
Federal control. EPA currently has nationwide regulations prescribing
limits on various characteristics and components of motor vehicle
diesel fuel (e.g., sulfur content limits, minimum cetane index and
limits on aromatic content). 55 FR 34120 (August 21, 1990). Thus
Arizona would need to obtain a CAA section 211(c)(4)(C) waiver in order
to implement a different requirement governing these characteristics
and components of on-road diesel fuel, i.e., CARB diesel, in the
Maricopa County area.
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\8\ This prohibition applies to all states except California, as
explained in section 211(c)(4)(B).
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Under section 211(c)(4)(C)(i), EPA may waive preemption by
approving a non-identical state fuel control as a SIP provision, if the
state demonstrates that the measure is necessary to achieve the NAAQS.
We may approve a state fuel requirement as ``necessary'' if no other
measures would bring about timely attainment, or if other measures
exist and are technically possible to implement but are unreasonable or
impracticable.
Section 211(c)(4)(C)(v)(I), added by the EPAct, further restricts
EPA's authority to waive preemption by providing that the Agency cannot
approve, under section 211(c)(4)(C)(i), any state fuel if the effect of
such approval increases the total number of fuels approved into SIPs
under section 211(c)(4)(C) as of September 1, 2004. The EPAct required
EPA to determine the total number of fuels approved into SIPs under
section 211(c)(4)(C) as of September 1, 2004, and to publish the list
for public review and comment.
On June 6, 2006, EPA's notice of its draft list was published in
the Federal Register. 71 FR 32532. On December 28, 2006, EPA's notice
of its final list, known as the Boutique Fuels List, was published in
the Federal Register. 71 FR 78192. The final list includes eight types
of fuels approved into SIPs under section 211(c)(4)(C) as of September
1, 2004. CARB fuels are approved into California's SIP, but because the
approval is not under CAA section 211(c)(4)(C)(i), we did not place
CARB fuels on the list of fuel types. 71 FR 78196. Thus, CARB diesel is
not one of these eight fuel types. As a result, EPA has no authority to
approve, under section 211(c)(4)(C)(i), CARB diesel for on-road motor
vehicles in the Maricopa County area because the effect of such
approval would be to increase the total number of fuels approved into
SIPs under section 211(c)(4)(C) as of September 1, 2004.\9\ Thus, the
State would not be able to obtain a section 211(c)(4)(C)(i) waiver
necessary to implement CARB diesel for on-road motor vehicles.
Consequently EPA is again proposing to approve the BACM demonstration
for the on-road category in the MAG plan without CARB diesel.
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\9\ Note that under the EPAct, 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 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. CAA section 211(c)(4)(C)(v)(IV). In addition, we
may not approve a state fuel unless that fuel is already approved in
at least one SIP in the applicable Petroleum Administration for
Defense District (PADD). CAA section 211(c)(4)(C)(v)(V). Because we
believe that approval of CARB diesel is not allowed as it would
increase the total number of fuels on the Boutique Fuels list above
the number of fuels as of September 1, 2004, we do not address these
additional restrictions on our approval authority under CAA section
211(c)(4)(c)(i).
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B. Nonroad Engines and Equipment Exhaust
EPA is not changing its assessment in its August 3, 2006 final rule
that requiring CARB diesel for the control of nonroad engines and
equipment exhaust is not currently feasible and is therefore not
required as BACM in the Maricopa County area. Therefore, except as
specifically modified below, EPA is relying for this proposed rule on
its discussion of Nonroad Engines and Equipment Exhaust in Section
II.B(2) of the Agency's July 1, 2005 proposed rule. 70 FR at 38066-
38067. We are also relying on our responses to public comments on this
issue in Section II.B. of our August 3, 2006 final rule. 71 FR at
43981-43983.
We note one update to the information in footnote 7 of the August
2006 final rule. There are currently six, rather than four, approval
letters on the
[[Page 31781]]
Texas Low Emission Diesel fuel program web site providing for the use
of alternative diesel fuel formulations. The second sentence in
footnote 7 should now read as follows: ``Although Section 114.312(f)
provides that alternative diesel fuel formulations must provide
comparable or better reductions of NOX and PM, three of the
six alternative diesel fuel formulation approval letters to date have
cited NOX reductions alone, or (in one case) reductions of
NOX and hydrocarbons, but not PM, as the basis for
approval.''
IV. MSM Demonstration and Extension of Attainment Date
In our August 3, 2006 final action, we determined that CARB diesel
was not required as a MSM because it did not advance the attainment
date. Today's proposed approval of the BACM demonstration in the MAG
plan for the on-road and nonroad vehicle exhaust source categories for
the Maricopa County area without CARB diesel does not affect that
determination. Therefore, we are again proposing to approve the MSM
demonstration in the MAG plan. If we again take final action to approve
the MSM demonstration, the attainment date extension granted to the
Maricopa County area in our August 3, 2006 final action would not be
affected.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, 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). 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.). 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 (Public Law 104-4).
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). 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. 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 approves a state rule implementing a
Federal standard.
In reviewing SIP submission, 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. 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.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 31, 2007.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 07-2848 Filed 6-7-07; 8:45 am]
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