[Federal Register Volume 73, Number 158 (Thursday, August 14, 2008)]
[Rules and Regulations]
[Pages 47542-47546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18626]


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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, [email protected].

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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