[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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