[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Rules and Regulations]
[Page 47542-47546]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au08-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2006-0571; FRL-8703-3]
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: Final rule.
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SUMMARY: EPA is taking final action under the Clean Air Act (CAA) to
approve the Best Available Control Measure (BACM) and the Most
Stringent Measure (MSM) demonstrations in the serious area particulate
matter (PM-10) plan for the Maricopa County portion of the metropolitan
Phoenix (Arizona) nonattainment area (Maricopa County area). EPA is
also confirming that it appropriately granted Arizona's request to
extend the attainment deadline from 2001 to 2006. EPA originally
approved these demonstrations and granted the extension request on July
25, 2002. Thereafter EPA's action was challenged in the U.S. Court of
Appeals for the Ninth Circuit. In response to the Court's remand, EPA
reassessed the BACM demonstration for the significant source categories
of on-road motor vehicles and nonroad engines and equipment exhaust,
specifically regarding whether or not California Air Resources Board
(CARB) diesel is a BACM and/or MSM. As a result of this reassessment,
EPA in 2006 again approved the BACM and MSM demonstrations in the plan
and granted the request for an attainment date extension. In light of
its 2007 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 has again reassessed the BACM and MSM demonstrations and
is again approving these demonstrations.
DATES: Effective Date: This rule is effective on September 15, 2008.
ADDRESSES: EPA has established docket number EPA-R09-OAR-0091 for this
action. The index to the docket 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., confidential
business information. To inspect the hard copy materials, please
schedule an appointment during normal business hours with the contact
listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Carol Weisner, EPA Region IX, (415)
947-4107, weisner.carol@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
I. Summary of Proposed Action
On June 8, 2007, EPA proposed to re-approve the BACM and MSM
demonstrations in Arizona's serious area PM-10 plan for the Maricopa
County area. EPA also proposed to confirm that it appropriately granted
Arizona's request for an extension of the area's attainment deadline
from December 31, 2001 to December 31, 2006. 72 FR 31778. EPA
originally approved the BACM and MSM demonstrations and granted the
attainment date extension in 2002.\1\ EPA's 2002 action was
subsequently challenged in the U.S. Court of Appeals for the Ninth
Circuit. On May 10, 2004, the Court issued its opinion which upheld
EPA's final approval in part but remanded to EPA the issue of whether
CARB diesel must be included in the serious area plan as a BACM and a
MSM. See Vigil v. Leavitt, 366 F.3d 1025, amended at 381 F.3d 826 (9th
Cir. 2004).
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\1\ On July 25, 2002, EPA approved multiple documents submitted
to EPA by Arizona for the Maricopa County area as meeting the CAA
requirements for serious PM-10 nonattainment areas for the 24-hour
and annual PM-10 national ambient air quality standards (NAAQS).
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.
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).
Note that, effective December 18, 2006, EPA revoked the annual
PM-10 standard. 71 FR 61144 (October 17, 2006). References to the
annual standard in this final rule are for historical purposes only.
EPA is not taking any regulatory action with regard to this former
standard.
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In response to the Ninth Circuit's remand, EPA re-examined the
feasibility of CARB diesel for both the on-road motor vehicle exhaust
and nonroad engines and equipment exhaust significant source
categories. On August 3, 2006, EPA again approved the BACM and MSM
demonstrations in the MAG plan for these significant source categories
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 implementation of CARB diesel was not
feasible for (1) on-road motor vehicle exhaust because Arizona would
not be able to make a ``necessity'' showing for CARB diesel and thus,
would not be able to obtain a waiver of federal preemption under CAA
section 211(c)(4)(C)(i) in light of EPA's prior approval of the PM-10
attainment demonstration that did not rely on reductions associated
with the use of CARB diesel, and (2) nonroad engines and equipment
exhaust because of the uncertainties with fuel availability, storage
and segregation and
[[Page 47543]]
concerns about program effectiveness due to owners and operators
fueling outside the Maricopa County area.
On June 6, 2007, EPA issued a finding that the Maricopa area failed
to attain the 24-hour PM-10 NAAQS by December 31, 2006. 72 FR 31183. As
a result, EPA can no longer rely on its August 3, 2006 conclusion that
CARB diesel is not necessary for the attainment of the PM-10 NAAQS.
Thus, EPA reassessed the BACM demonstration for the on-road motor
vehicle exhaust source category in light of the new provisions in the
Energy Policy Act of 2005 (EPAct) which we had mentioned but not
addressed in the August 3, 2006 approval because, as noted earlier, we
had concluded that we could not approve CARB diesel into the Arizona
State implementation plan (SIP) under CAA section 211(c)(4)(C)(i). EPA
concluded that 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
under section 211(c)(4)(C) as of September 1, 2004. Therefore, EPA
again proposed to approve the BACM demonstration for the on-road motor
vehicle exhaust source category in the MAG plan without CARB diesel.
Because our August 3, 2006 approval of the BACM demonstration for
nonroad engines and equipment exhaust relied to some extent on our
conclusion with respect to on-road motor vehicle exhaust, we also
proposed 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 concerns about program
effectiveness due to owners and operators fueling outside the Maricopa
County area.
Finally, because the December 31, 2006 attainment deadline has
passed since EPA granted the State's request for an attainment date
extension in its August 3, 2006 action, the extension request is 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
implement it absent the requisite showing under CAA section 110(l).
Therefore EPA again proposed to approve the MSM demonstration in the
MAG plan without CARB diesel. We also proposed to confirm that we had
appropriately granted the State's request for an attainment date
extension in our 2002 and 2006 actions.
II. Public Comments and EPA Responses
EPA received one comment letter, from Joy E. Herr-Cardillo, Senior
Staff Attorney, Arizona Center for Law in the Public Interest (ACLPI),
on behalf of Phoenix area residents Robin Silver, Sandra L. Bahr and
David Matusow. EPA appreciates the time and effort expended by the
commenter in reviewing the proposed rule and providing comments. We
have summarized the comments and provided our responses below.
A. On-Road Motor Vehicle Exhaust
Comment 1: ACLPI asserts that EPA inappropriately relies upon an
amendment to CAA section 211(c) by EPAct when re-evaluating a prior EPA
approval on remand from the Court of Appeals. ACLPI notes that at the
time Arizona submitted its BACM demonstration for approval, the section
211(c) waiver restrictions now relied upon did not exist and could not
have served as a ``reasoned justification'' for rejecting CARB diesel.
Response: As authority for its conclusion that EPA's reliance on an
amendment to section 211(c) by EPAct is inappropriate, ACLPI cites
without elaboration only Disimone v. EPA, 121 F.3d 1262 (9th Cir.
1997). This case is inapt. The Disimone case involved a unique set of
circumstances. Prior to Disimone, in 1990, the Ninth Circuit had
ordered EPA to disapprove the Arizona SIP and to promulgate in its
place a Federal implementation plan (FIP). Delaney v. EPA, 898 F.2d 687
(9th Cir. 1990), cert. denied 498 U.S. 998 (1990). Later in 1990
Congress amended the CAA and EPA requested that the Ninth Circuit
recall its mandate in Delaney so that the Agency could take into
account the 1990 Amendments in its action on remand. The Ninth Circuit
denied EPA's request. EPA subsequently disapproved the Arizona SIP and
promulgated a FIP as mandated by the Delaney court. EPA thereafter
approved a SIP revision and rescinded its FIP. The Disimone court held
that in so doing EPA acted contrary to a prior direct mandate of the
Ninth Circuit and its action thus violated the law of the case. In
addition the court held that EPA was collaterally estopped from
claiming its action was required by the Act's statutory scheme, as
amended in 1990, because the Delaney court had denied its motion to
amend the judgment to conform to those amendments.
In contrast to Disimone, here there has been no prior judicial
action with respect to the effect of the 2005 amendment that would have
precluded EPA from proceeding with this regulatory action. Therefore
the doctrines on which that court relied do not apply. We must comply
with EPAct, the applicable current law, even though it did not exist at
the time of EPA's original approval action.
Comment 2: ACLPI asserts that, regardless of the intervening EPAct
restrictions, it does not agree that these restrictions prevent EPA
from approving a waiver of preemption in order to allow CARB diesel
fuel or other low emission diesel fuel as BACM. ACLPI argues that
although CARB diesel fuel is not included on the Boutique Fuels List by
virtue of its inclusion in the California SIP, the list does include
``low emission diesel,'' a fuel approved in the Texas SIP, and this
fuel includes CARB diesel fuel as an approved low emission diesel fuel.
ACLPI further states that because CARB diesel is already approved in
California, it is also approved in the applicable Petroleum
Administration for Defense District (PADD).
Response: As noted in our June 8, 2007 proposal, at 72 FR 31780,
EPAct amended 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
PADD in which they are used. CAA section 211(c)(4)(C)(v)(II). It also
placed 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 a list of the total number of
fuels approved into all SIPs, under
[[Page 47544]]
section 211(c)(4)(C), as of September 1, 2004 , in the Federal
Register. 71 FR 78192. The final list (known as the Boutique Fuels
List) includes eight types of fuels approved into SIPs under section
211(c)(4)(C) as of September 1, 2004, but does not include CARB diesel
fuel because it is not approved into California's SIP under section
211(c)(4)(C).\2\
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\2\ Pursuant to section 211(c)(4)(B), California is not subject
to the restriction in section 211(c)(4)(A) which triggers
applicability of section 211(c)(4)(C).
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ACLPI is correct that Texas Low Emission Diesel fuel (also known as
Texas LED fuel) is one of the eight types of fuels on the Boutique
Fuels List. ACLPI is not correct, however, in asserting that because
CARB diesel fuel is included as an approved low emission diesel fuel
under the Texas LED rules, CARB diesel fuel is therefore already
included among the fuels on the Boutique Fuels List. Texas LED fuel
requirements allow CARB diesel fuel as a compliance option in lieu of
meeting the regulatory standard for aromatic hydrocarbons and cetane
number, but they also allow other compliance options that would not
meet CARB diesel fuel requirements.\3\
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\3\ See Summary Comparison of CA and TX Diesel Fuel Programs in
the docket for this rulemaking for a table describing major features
of both programs. See also description of the Texas LED fuel program
in EPA rulemaking actions at 66 FR 57196 (November 14, 2001), 70 FR
17321 (April 6, 2005), 70 FR 58325 (October 6, 2005), and 73 FR 8026
(February 12, 2008).
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Specifically, Texas LED fuel requirements allow four compliance
options in lieu of meeting the 10% (volume) maximum aromatic
hydrocarbon limit and the minimum cetane number of 48: (1) Fuel meeting
CARB diesel requirements (except those for small refiners) as of
January 18, 2005, including the designated equivalent limits; (2) fuel
meeting the requirements of a CARB certified alternative diesel
formulation (except those for small refiners) approved before January
18, 2005 to meet CARB diesel regulations in effect as of October 1,
2003; (3) fuel meeting the Texas LED requirements for alternative
diesel fuel formulations; and (4) fuel meeting the requirements of an
alternative emission reduction plan approved as a substitute fuel
strategy that will achieve equivalent oxides of nitrogen
(NOX) emission reductions. Based on quarterly reports
submitted to the Texas Commission on Environmental Quality for 2007,
more than half the volume of Texas LED fuel in 2007 consists of fuel
meeting compliance options (3) and (4) noted above.\4\ Compliance
options (3) and (4) do not exist in CARB diesel fuel.
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\4\ See July 29, 2008 Memorandum, ``Summary of total TxLED
production volumes reported for 2007'' in the docket for this
rulemaking. This summary indicates that 41% of TxLED fuel volume
consists of fuel meeting the Alternative Emission Reduction Plan
compliance option, and 11% of TxLED fuel volume consists of fuel
meeting the TxLED requirements for alternative diesel fuel
formulations. Forty-seven percent of TxLED fuel volume for 2007
consists of fuel meeting either the California diesel fuel standards
(except those for small refiners) or the California certified
alternative fuel formulations (except those for small refiners).
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The Texas LED fuel program was modeled on the CARB diesel fuel
program, but Texas has adapted the program to meet needs specific to
the Texas ozone nonattainment areas, especially the Houston-Galveston
ozone nonattainment area, for which the Texas LED fuel program is
approved into the SIP. As a result, the two diesel fuel programs are
similar but not equivalent, as we noted in our August 3, 2006 final
rule, in response to ACLPI's comment that we had failed to account for
availability of similar diesel fuel in Texas in assessing the
feasibility of using CARB diesel for nonroad engines. See 71 FR at
43981-82.\5\
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\5\ We described two significant differences between the two
types of fuel: First, Texas LED rules allow the use of substitutes
for LED fuel that achieve equivalent NOX reductions but
not necessarily equivalent PM reductions, and second, Texas LED
rules have been amended to remove the ultra low sulfur requirement,
which directly affects PM emissions, from diesel fuel, while as of
September 1, 2006, there is now a 15 ppm sulfur content requirement
at the retail level for CARB diesel fuel. See 71 FR at 43981-82.
Compliance option (4) mentioned above corresponds to the first
difference noted here.
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ACLPI also asserts that, because CARB diesel is already approved in
California, it is also approved in the applicable PADD. This is a
reference to the PADD restriction, which is mentioned above and can be
found in section 211(c)(4)(C)(v)(V). Under the PADD restriction, we are
allowed to approve a fuel if it is ``approved in at least one [SIP] in
the applicable [PADD].'' Arizona is in PADD 5, the same PADD as
California, and Texas is in PADD 3. Our approval would, however, be
subject to the other restrictions listed and discussed above. Thus, our
approval must not cause an increase in the number of fuel types above
those approved as of September 1, 2004, i.e., there must be ``room'' on
the Boutique Fuels List, and we must consult with DOE on the effect of
such a fuel on fuel supply and distribution in the affected or
contiguous areas. As earlier mentioned, CARB diesel is approved into
the California SIP. We would therefore, not be prohibited from
approving CARB fuels for states within PADD 5, if there were room on
the Boutique Fuels List. At this time, however, there is no room on the
list, and therefore, we are prohibited from approving CARB diesel into
Arizona's SIP since it would be a different fuel type that is not
already on the list. Because CARB diesel fuel and Texas LED fuel are
not equivalent, as noted above, the two are not interchangeable on the
Boutique Fuels List, and thus the only type of low emission diesel fuel
on the Boutique Fuels List is the Texas LED fuel program. This program
is approved into a SIP in PADD 3, but is not approved into a SIP in the
applicable PADD, which is PADD 5. Thus, EPA is further prohibited from
approving a low emission diesel fuel program into the Arizona SIP
because of the PADD restriction.
B. Nonroad Engines and Equipment Exhaust
Comment 3: Since EPA relies upon its previous assessment in the
August 3, 2006 final rule, ACLPI reasserts the objections raised in its
comments submitted in response to that rulemaking in its letter dated
August 1, 2005.
Response: As noted in the June 8, 2007 proposed rule, EPA is not
changing its assessment in the August 3, 2006 final rule that requiring
CARB diesel fuel for the control of nonroad engines and equipment
exhaust is not currently feasible and is therefore not required as a
BACM in the Maricopa County area. Except as specifically modified
below, EPA is relying for this final 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 further update to the information in footnote 7 of the
August 3, 2006 final rule. There are currently thirteen, rather than
six, approval letters on the Texas LED fuel program Web site \6\
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,
four of the thirteen alternative diesel fuel formulation approval
letters to date have cited NOX reductions alone, or (in one
case) reductions of NOX and
[[Page 47545]]
hydrocarbons, but not PM, as the basis of approval.''
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\6\ As noted in footnote 7 of the August 3, 2006 final rule, the
Web site location is: http://www.tceq.state.tx.us/implementation/
air/sip/cleandiesel.html.
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Comment 4: ACLPI further asserts that, with respect to EPA's
concerns that nonroad diesel fuel users will refuel outside the
nonattainment area to avoid paying the higher cost of CARB diesel, the
Texas LED rule provides guidance for Arizona since it applies to 102
counties even though only 8 of those counties are in the Houston
nonattainment area. Citing EPA's November 14, 2001 final rule approving
the Texas LED rule into the SIP, ACLPI asserts that the principal
reason for extending the scope of the rule to so many counties was to
prevent refueling outside the nonattainment area. 66 FR 57196, 57216.
ACLPI states there is no reason that a similar approach could not be
adopted in Arizona.
Response: In addition to the Texas LED fuel program, EPA has
approved two other state fuel programs under CAA Section 211(c)(4)(C)
in which the covered area included attainment areas outside the
nonattainment area for which SIP approval was sought. See 66 FR 20927
(April 26, 2001) for the Gasoline Volatility Program in Eastern and
Central Texas, and 67 FR 8200 (February 22, 2002) for the Gasoline
Sulfur and Volatility Program in Atlanta, Georgia. In each of these
three cases, EPA's approval of the state fuel program in attainment
areas was based on the State's demonstration that emission reductions
attributable to the state fuel program in the attainment areas was
necessary to help achieve attainment in the nonattainment area for
which SIP approval was sought.
Specifically, in the case of the Texas LED fuel program, EPA noted
three reasons for Texas' conclusion that requiring LED fuel in the 110-
county covered area benefits the 8-county Houston ozone nonattainment
area. First, it will help ensure that LED fuel is used by intrastate
and long-haul trucks that travel through the nonattainment area but
purchase fuel in Texas outside the nonattainment area and within the
covered area. Second, it will help reduce possible transport of ozone
from the surrounding covered areas to the nonattainment area. Third, it
will reduce the transport of NOX from the surrounding
covered areas to the nonattainment area. See 66 FR at 57214 and 66 FR
36542, 36545.
ACLPI's reference to EPA's statement at 66 FR 57216 is misquoted;
in this part of the November 14, 2001 final rule approving the Texas
LED rule into the SIP, EPA stated that ``a principal purpose of
extending the coverage of the LED rule to the 102 counties outside the
8-county Houston nonattainment area is to ensure that intrastate and
long-haul trucks traveling through the Houston area but re-fueling
outside the Houston area are re-fueling with LED fuel.'' (Emphasis
added.) Thus preventing re-fueling with non-LED fuel outside the
Houston area was one of three reasons for the expanded scope of the
covered area, as described above, but it was not ``the'' principal
reason, as ACLPI mistakenly asserts.
With respect to the potential use of CARB diesel fuel for nonroad
engines and equipment, the preemption of state fuel controls in CAA
section 211(c)(4)(A) does not extend to fuels used solely in nonroad
engines and equipment and not for use in motor vehicles. See 70 FR
38064, 38066 (July 1, 2005), 69 FR 38958, 39072-73 (June 29, 2004). The
choice of covered areas for a state diesel fuel program for nonroad
engines and equipment might very well be affected, however, by the same
kinds of reasons that would influence the design of the program if it
were to include diesel fuel for on-road motor vehicles. We agree that
the possible enlargement of the covered area beyond the nonattainment
area is a factor Arizona could consider in evaluating the feasibility
of a diesel fuel program for nonroad engines and equipment, but it is
not the only factor Arizona would need to consider.
Such an enlarged program might help avoid the problem of re-fueling
outside the Maricopa County area, but it would still face the same
obstacles we have evaluated in our prior notices, i.e., the uncertainty
of fuel availability and the problem of fuel segregation and storage.
Additionally, we note that the geographic considerations in assessing
potential re-fueling avoidance are different in Arizona and Texas.
Population in the Houston-Galveston ozone nonattainment area is about
22% of the statewide population but represents only 3% of the State's
land area. By expanding the covered area to include the Dallas-Fort
Worth and Beaumont-Port Arthur ozone nonattainment areas as well as 95
nearby counties, the Texas LED fuel program covers about 79% of
statewide population and 35% of the State's land area. By contrast,
population in the Phoenix nonattainment area is about 60% of statewide
population but only 8% of the State's land area. If a fuel program were
expanded to include Pima County, which includes the next largest
metropolitan area in Arizona, the population in the covered area would
be about 76% of statewide population but only 16% of the State's land
area. (Statistics are based on 2000 Census Bureau data).\7\
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\7\ See July 30, 2008 Memorandum, ``Statistical Data for Arizona
and Texas Based on 2000 Census'' in docket for this rulemaking.
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C. MSM Demonstration and Extension of Attainment Date
Comment 5: ACLPI states that, because EPA did not undertake a new
analysis of CARB diesel as a MSM for purposes of the attainment date
extension, ACLPI incorporates by reference comments it submitted ``in
response to previous rulemakings, as well as the arguments and analysis
set forth in the Opening and Reply briefs filed in Vigil * * *
(specifically Opening Brief, pp. 21-27; \8\ Reply Brief, pp. 9-18.)''
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\8\ EPA notes that the discussion of MSM begins on p. 24 of
ACLPI's Opening Brief.
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Response: The Vigil Court's remand of EPA's approval of the
attainment date extension is limited. The Court concluded that ``[w]e
also remand the question of Arizona's eligibility for the extension,
insofar as that question depends on EPA's determination regarding
MSM.'' (Emphasis added.) 381 F.3d at 487. Therefore to the extent that
ACLPI intends to incorporate by reference its comments and arguments on
aspects of the extension other than MSM, it is precluded from raising
them in this rulemaking.
While ACLPI does not specify, we assume that by ``previous
rulemakings'' it is referring to EPA's proposed approvals of the
serious area PM-10 plan for the Maricopa County area at 65 FR 19964
(April 13, 2000) and 66 FR 50252 (October 2, 2001). ACLPI commented on
these proposed actions in letters from Joy Herr-Cardillo to Frances
Wicher, EPA Region 9, dated July 20, 2000 and November 1, 2001. EPA has
previously addressed the arguments relating to MSM and the attainment
date extension as it relates to MSM raised by ACLPI in its briefs and
these letters. See 67 FR at 48722-48725 and EPA's Response Brief in
Vigil at 10-12 and 30-34. Discussions also relevant to these issues can
be found in EPA's proposed approvals of the serious area PM-10 plan for
the Maricopa County area at 65 FR 19964 and 66 FR 50252.
III. Final Action
EPA is again approving the BACM demonstration in the MAG plan for
the source categories of on-road and nonroad vehicle exhaust without
CARB diesel. EPA has concluded that it cannot 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
[[Page 47546]]
number of fuels approved into SIPs under section 211(c)(4)(C) as of
September 1, 2004. Therefore, EPA is again approving the BACM
demonstration in the MAG plan for the on-road source category without
CARB diesel. Because EPA has found that CARB diesel is not feasible for
nonroad engines and equipment 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, we are again approving BACM demonstration in the MAG plan
for the nonroad source category without CARB diesel. For the reasons
discussed above, EPA is also again approving the MSM demonstration in
the MAG plan and is confirming that we appropriately granted in 2002
and 2006 the State's request for an extension of the attainment
deadline for the area from December 31, 2001 to December 31, 2006.
These actions are codified at 40 CFR 52.123(j)(2), (4) and (7) and
remain in effect. See 67 FR at 48739.
IV. Statutory and Executive Order Reviews
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. 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 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.). 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 (Pub. L. 104-4).
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). 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 12898 (59 FR 7629, February 16, 1994)
establishes a Federal policy for incorporating environmental justice
into Federal agency actions by directing agencies to identify and
address, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority and low-income populations. Today's action will
not have disproportionately high and adverse effects on any communities
in the area, including minority and low-income communities.
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.
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 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.).
The Congressional Review Act, 5 U.S.C. section 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 October 14, 2008. 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, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
Dated: August 4, 2008.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E8-18626 Filed 8-13-08; 8:45 am]
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