[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Proposed Rules]
[Pages 61942-61948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30517]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-MA-002-CGB; FRL-5925-6]
Approval and Promulgation of State Implementation Plans;
Arizona--Maricopa County Ozone and PM10 Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
revision submitted by the State of Arizona on September 15, 1997,
establishing Cleaner Burning Gasoline (CBG) fuel requirements for
gasoline distributed in the Phoenix (Maricopa County) ozone
nonattainment area. Arizona has developed these fuel requirements to
reduce emissions of volatile organic compounds (VOC) and particulates
(PM10) in accordance with the requirements of the Clean Air
Act (CAA). EPA is proposing to approve Arizona's fuel requirements into
the Arizona SIP because either they are not preempted by federal fuels
requirements or to the extent that they are or may be preempted, since
EPA is proposing to find that the requirements are necessary for the
Maricopa area to attain the national ambient air quality standards
(NAAQS) for ozone and particulates.
DATES: Comments on this proposed rule must be received in writing by
December 22, 1997.
ADDRESSES: Written comments should be sent to the Region IX contact
listed below. Copies of the SIP revision are available in the docket
for this rulemaking, which is open for public inspection at the
addresses below. A copy of this notice is also available on EPA Region
IX's website at http://www.epa.gov/region09.
Air Planning Office (AIR-2), Air Division, Region IX, U.S.
Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA
94105
Arizona Department of Environmental Quality, Office of Outreach and
Information, First Floor, 3033 N. Central Avenue, Phoenix, Arizona
85012.
FOR FURTHER INFORMATION CONTACT: Karina O'Connor, Air Planning Office,
AIR-2, Air Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1247.
SUPPLEMENTARY INFORMATION:
I. Background
A. Arizona CBG
The State CBG fuel program for the Maricopa area establishes limits
on gasoline properties and gasoline emission standards which will
reduce emissions of volatile organic compounds (VOCs), oxides of
nitrogen (NOX), carbon monoxide (CO) and particulates (PM).
Under the program, a variety of different fuels will be able to meet
the fuel standards during different implementation periods (see Table
1). Starting June of 1998 through September 30, 1998, gasoline sold in
Maricopa County must meet standards similar to EPA's Phase I
reformulated gas (RFG) program or California's Phase II RFG program.
Under the EPA Phase I RFG standards, the Arizona Department of
Environmental Quality (ADEQ) estimates that VOC emissions will be
reduced by 8.7 tons per summer day (tpsd), NOX emissions by
0.2 tpsd, CO emissions by 118.6 tpsd and PM10 emissions by
0.27 tpsd. With California RFG, ADEQ estimates that VOC emissions will
be reduced by 14.1 tpsd, NOX emissions by 8.2 tpd, CO
emission by 198 tpsd and PM10 by 0.76 tpsd.
California Phase II RFG can be used to comply with the Arizona fuel
program during all implementation periods since, starting May 1, 1999,
gasoline must meet standards similar to EPA's Phase II RFG program or
California's RFG program. Under the CBG Type 1 standards, ADEQ
estimates that VOC emissions will be reduced by 12.5 tpsd,
NOX emissions by 2.0 tpsd, CO emissions by 143.3 tpsd and
PM10 by 0.4 tpsd.
Table 1.--Fuel Types Meeting Arizona CBG Fuel Standards
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Fuel type Fuel designation Implementation period
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CBG Type 1......................... EPA's Phase II RFG........ June 1999-Future.
CBG Type 2......................... California Phase II RFG... June 1998-Future.
CBG Type 3......................... EPA's Phase I RFG......... June-September 30, 1998.
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During both implementation periods, gasoline sold in the Maricopa
area can comply with either of the two sets of specified standards
included in the program. Therefore the actual emission reductions
benefits during either period
[[Page 61943]]
are difficult to estimate without specific knowledge of the market
penetration of each of the two acceptable fuels. However, emission
reductions should, at a minimum, reach the levels that would result
from the specific performance standards associated with CBG Types 1 and
3 during both periods because the corresponding CBG Type 2 standards
are, in all instances, more stringent. These emissions reductions will
help the Maricopa area attain the NAAQS for both ozone and
particulates.
B. Clean Air Act Requirements
In determining the approvability of a SIP revision, EPA must
evaluate the proposed revision for consistency with the requirements of
the CAA and EPA regulations, as found in section 110 and part D of the
CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and
Submittal of Implementation Plans).
For SIP revisions addressing certain fuel measures, an additional
statutory requirement applies. CAA section 211(c)(4)(A) prohibits state
regulation of a fuel characteristic or component for which EPA has
adopted a control or prohibition under section 211(c)(1), unless the
state control is identical to the federal control. Section 211(c)(4)(C)
provides an exception to this preemption if EPA approves the state
requirements in a SIP. Section 211(c)(4)(C) states that the
Administrator may approve preempted state fuel standards in a SIP:
* * * only if [s]he finds that the State control or prohibition
is necessary to achieve the national primary or secondary ambient
air quality standard which the plan implements. The Administrator
may find that a State control or prohibition is necessary to achieve
that standard if no other measures that would bring about timely
attainment exist, or if other measures exist and are technically
possible to implement, but are unreasonable or impracticable. The
Administrator may make a finding of necessity even if the plan for
the area does not contain an approved demonstration of timely
attainment.
EPA's August 1997 ``Guidance on Use of Opt-in to RFG and Low RVP
Requirements in Ozone SIPS'' gives further guidance on what EPA is
likely to consider in making a finding of necessity.
C. History of Related Actions
Under the Clean Air Act Amendments of 1990, the Phoenix area was
classified as a moderate nonattainment area for both ozone and
PM10. The moderate ozone attainment deadline was November
15, 1996; the moderate PM10 attainment deadline was December
31, 1994. In 1997, the Phoenix area was reclassified as serious for
ozone with an attainment deadline of no later than November 15, 1999.
In 1996, the Phoenix area was reclassified as serious for
PM10 with an attainment deadline of no later than December
31, 2001.1
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\1\ See 56 FR 56694 (November 6, 1991), CAA Sections 181(a)(1)
and 188(c)(1), 62 FR 60001 (November 6, 1997) and CAA Section
181(a)(1), 61 FR 21372 (May 10, 1996) and CAA Section 188(c)(2).
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The State, the Maricopa County air pollution control agency, and
the local jurisdictions in Maricopa County have adopted and implemented
a broad range of ozone control measures including a summertime low Reid
Vapor Pressure (RVP) limit of 7.0 psi for gasoline, an enhanced
inspection and maintenance (I/M) program, stage II vapor recovery, an
employer trip reduction program, many transportation control measures,
and numerous stationary and area source VOC controls. On November 12,
1993, in support of one of these measures, the Arizona legislature
passed section 13 of Arizona House Bill (HB) 2001 (1993 Special
Session), originally codified in Arizona Revised Statutes (ARS) at
section 41-2083(E).2 This provision limited the maximum
summer vapor pressure (or RVP) of gasoline fuel sold in the Maricopa
area to 7.0 psi beginning May 31, 1995 through September 30, 1995, and
applying from May 31 through September 30 of each year thereafter.
Gasoline distributed in the Maricopa area by refineries, importers,
carriers, retail stations and other end users who sell or dispense
gasoline must meet the 7.0 psi limit during those periods.
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\2\ This section is currently codified in the ARS as section 41-
2083(F).
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On January 17, 1997, Governor Symington applied to EPA to include
the Maricopa County ozone nonattainment area in the federal RFG program
and the State submitted section 13 of HB 2001 to EPA as a SIP revision
on April 29, 1997. Because this State fuel requirement established a
control on RVP of 7.0 psi, not identical to the federal fuel RVP
requirements applicable to the area (i.e., federal conventional
gasoline RVP limit of 7.8 psi, federal phase I RFG RVP limit of 7.2 psi
or federal phase II volatility limit of 7.8 psi), Arizona's fuel
requirement was preempted under section 211(c)(4)(A) of the CAA.
Pursuant to the Governor's letter and section 211(k)(6) of the CAA, EPA
approved Governor Symington's request to opt in to the federal RFG
program on June 3, 1997. 62 FR 30260. EPA also published a direct final
approval of Arizona's low RVP SIP revision on June 11, 1997. 62 FR
31734. In approving the RVP SIP revision, EPA found under section
211(c)(4)(C) that the State's fuel requirement is necessary for the
Maricopa area to attain the NAAQS for ozone.
The State also enacted HB 2307 which authorized the establishment
of a more stringent State reformulated gasoline program.3 HB
2307 was passed as an emergency measure, requiring ADEQ and the Arizona
Department of Weights and Measures (ADWM) to adopt interim rules
reflecting the fuel requirements included in the bill. The two agencies
implemented a facilitated rulemaking process over the next three months
which resulted in the publication of proposed rules on July 15, 1997
and a public hearing on August 15, 1997. ADEQ adopted these proposed
rules as the Arizona CBG Interim Rule on September 12, 1997 following a
public comment period.
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\3\ The State reformulated gasoline rules are codified in the
ARS as section 41-2124. Section 41-2123 of HB 2307 also contains
wintertime oxygenate requirements for fuels. The bill changed the
effective dates of the oxygenate requirements from October 15 to
November 15 through March 31 of each year.
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C. State Submittal
In a September 12, 1997 letter, Russell Rhoades, Director, ADEQ,
requested that EPA approve the CBG Interim Rule as a revision to the
Arizona SIP and a CAA section 211(c)(4)(C) waiver. See ``Arizona
Cleaner Burning Gasoline Interim Rule SIP Revision and Clean Air Act
211(c)(4)(C) Waiver Request,'' September 1997. The SIP revision package
includes: (1) Arizona laws providing the State authority for submittal
of SIP revisions; (2) a SIP completeness checklist; (3) the CBG Interim
Rule; (4) a request for a waiver from federal preemption pursuant to
CAA section 211(c)(4)(C); (5) a letter from the Arizona Attorney
General concerning the status of the States authority to enforce the
rule out-of-state; and (6) HB 2307.
As additional supporting technical documentation for the section
211(c)(4)(C) waiver request, the States CBG SIP submittal includes: (1)
An Assessment of Fuel Formulation Options for Maricopa (see Attachment
3, Exhibit 2, Appendix A); (2) Demonstration of CO impacts of the
proposed fuel formulations (see Attachment 3, Exhibit 2, Appendix G and
Appendix K); (3) Demonstrations of NOX/PM impacts of the
proposed fuel regulations (see Attachment 3, Exhibit 2, Appendix M);
and (4) the Urban Airshed Model (UAM) modeling demonstration from the
draft Voluntary Early Ozone Plan (VEOP)(see Attachment 3, Exhibit 6,
Appendix B).
[[Page 61944]]
The modeling used 1996 as the base year and evaluated the effects of
existing and future control measures. Arizona's CBG requirements are
built into the 1996 base year inventory and modeled out to the 1999,
and 2010 projected attainment years.
To allow the Arizona CBG program to substitute for the federal RFG
program, on September 15, 1997 the State also submitted a separate
letter to Administrator Browner, requesting to opt out of the federal
RFG program, effective June 1, 1998, contingent upon EPA approval of
the Arizona SIP revision and the associated waiver request. In
response, Dick Wilson, Acting Assistant Administrator for Air and
Radiation, EPA, sent a letter to Governor Hull on October 3, 1997,
which states that upon Region IX publication of a final approval of a
SIP revision incorporating the CBG Interim Rule, the Office of Mobile
Sources will notify the State and publish a notice in the Federal
Register approving Arizona's opt-out from the federal RFG program.
Arizona submitted a further addendum to the SIP revision on October
21, 1997, which contained additional technical materials supporting the
State's waiver request.
II. EPA Evaluation of SIP Submittal
A. General SIP Requirements
As discussed below, EPA has evaluated the SIP revision and has
determined that it is consistent with the requirements of the CAA and
EPA regulations. On November 13, 1997, EPA found that the September 12,
1997 SIP revision conformed to EPA's completeness criteria in 40 CFR
part 51, Appendix V.
Information regarding enforcement and compliance assurance for the
SIP revision can be found in the ARS (specifically in Article 6,
Chapter 15, Department of Weights and Measures, of Title 41) and the
Arizona Administrative Code (AAC). The Arizona Department of Weights
and Measures (ADWM) implements the CBG rule and has the necessary
authority under ARS 41-2124.C, ARS 41-2124.01.B, ARS 41-2065.A.4, .14,
and .16, and ARS 41-2065.D to obtain samples (AAC R20-2-721), test (AAC
R20-2-759), and complete surveys (AAC R20-2-760). Any person violating
the CBG rule is subject to prosecution pursuant to ARS 41-2113.B.4,
civil penalties pursuant to ARS 41-2115 and stop-use, stop-sale, hold
and removal orders pursuant to ARS 41-2066.A.2 (AAC R20-2-762). The SIP
submittal also contains a letter from the Arizona Attorney Generals
office regarding enforceability of the Arizona CBG rule outside of the
Arizona State boundaries and a letter from the ADWM regarding gasoline
sampling analysis timeframes. EPA has concluded that these provisions
confer on the State the requisite authority to enforce compliance with
the CBG Interim Rule.
B. Section 211(c)(4)
1. Federal Preemption
The CBG Interim Rule establishes state gasoline standards. As
discussed above, CAA section 211(c)(4)(A) preempts certain state fuel
regulations by prohibiting a state from prescribing or attempting to
enforce ``any control or prohibition respecting any characteristic or
component of a fuel or fuel additive'' for the purposes of motor
vehicle emission control, if the Administrator has prescribed under
section 211(c)(1), ``a control or prohibition applicable to such
characteristic or component of the fuel or fuel additive,'' unless the
state prohibition is identical to the prohibition or control prescribed
by the Administrator.
The CBG Interim Rule establishes three types of gasoline standards.
For 1998, the requirements for CBG Types 2 and 3 gasoline apply. In
addition, all Arizona CBG must meet specified fuel property limits for
that year.\4\ For 1999 and beyond, the requirements for CBG Types 1 and
2 gasoline would apply. In addition, all Arizona CBG would have to meet
the fuel property limits specified for that time period.\5\ These
proposed types of gasoline include performance standards as well as
requirements for specific fuel parameters. EPA's analysis of preemption
addresses the following standards in the CBG Interim Rule: performance
standards for NOX and VOC (under gasoline Types 1 and 3);
performance standards for NOX and HC (under Type 2); and
parameter specifications for oxygen, sulfur, olefins, aromatic HC, T50,
and T90 (under gasoline Type 2).
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\4\ AAC R20-2-751.01.A.
\5\ AAC R20-2-751.A.
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To determine whether a state fuel requirement is preempted by a
federal requirement, EPA compares the applicable federal fuel
requirements in the area with the proposed state fuel requirements. For
the purposes of this analysis, the federal fuel requirement in the
Phoenix ozone nonattainment area is federal conventional gasoline.
While Arizona has opted into the federal RFG program for the 1997
season, the State has requested to opt out of the program before the
State CBG requirements would apply.\6\ Once the State has opted out of
the federal RFG program, the applicable federal requirements would be
those for conventional gasoline. The federal requirements for
conventional gasoline include a NOX performance standard.
CBG Types 1 and 3 also contain a NOX performance standard,
so the CBG NOX performance standard is preempted. The CBG
Interim Rule would allow refiners to meet the requirements for Type 2
gasoline in lieu of the requirements for CBG Type 1 or 3 gasoline.
Whether the specifications for CBG Type 2 are preempted is less clear.
The CBG Type 2 specifications include performance standards for
NOX and HC and requirements for the fuel parameters sulfur,
olefins and aromatic HCs. The federal conventional gasoline standards
do not include requirements for these specific parameters. However,
refiners are required to use an emissions performance model that
determines NOX and HC performance based in part on these
fuel parameters.
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\6\ The opt-out is contingent on the CBG requirements becoming
effective upon EPA's approval of the regulations in the SIP.
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In this rulemaking, EPA does not need to determine whether these
types of State fuel requirements are preempted under section
211(c)(4)(A) prior to acting on the proposed revision to the Arizona
SIP. If the sulfur, olefins and aromatic HC requirements are not
preempted, there is no bar to EPA approving them as a SIP revision. If
they are preempted, EPA would be able to approve these requirements as
necessary under section 211(c)(4)(C) if EPA could approve the
NOX performance standard as a SIP revision. Sulfur, olefins
and aromatic HC requirements all reduce NOX emissions. Under
Type 1 or 3 CBG, refiners would obtain NOX reductions
through a NOX performance standard, and under Type 2 CBG,
refiners would obtain comparable NOX reductions through
sulfur, olefins and aromatic HC requirements. If EPA finds the
NOX reductions produced by the NOX performance
standard under CBG Types 1 and 3 to be necessary, then the comparable
reductions produced by the alternative of CBG Type 2 gasoline would
also be necessary. Thus, based on EPA's finding, discussed below, that
NOX reductions are necessary under section 211(c)(4)(C), EPA
is proposing to approve the sulfur, olefins and aromatic HC
requirements as well.
The CBG Interim Rule also requires refiners to meet a VOC
performance standard (under CBG Types 1 and 3 gasoline); or a HC
performance standard or oxygen, T50 and T90 requirements
[[Page 61945]]
(under CBG Type 2 gasoline). Federal conventional gasoline requirements
do not include a VOC performance standard or controls on these specific
parameters. However, refiners are required to meet summertime
volatility limits, and are required to use an emissions performance
model that determines NOX performance based in part on the
same fuel parameters as those used in the CBG Interim Rule. In this
rulemaking, EPA does not need to determine whether these types of state
fuel requirements are preempted under section 211(c)(4)(A) if EPA finds
that these fuel requirements are necessary for the Phoenix
nonattainment area to meet the ozone NAAQS. Of course, if these
requirements are not preempted, there is no bar to approving them as a
SIP revision.
Arizona has already demonstrated that its 7.0 psi RVP requirement
is necessary under section 211(c)(4)(C) to meet the ozone NAAQS in the
Phoenix area.7 Compliance with either the VOC performance
standard or the HC performance standard or the oxygen, T50 and T90
requirements would produce some additional VOC reductions beyond those
produced by the 7.0 psi RVP requirement. As with the NOX
performance standard and the alternative fuel parameter requirements
discussed above, refiners would obtain comparable VOC reductions
through either the VOC performance standard or the oxygen, T50 and T90
requirements. Thus, if EPA finds the VOC reductions produced by the
NOX performance standard under CBG Type 1 and 3 gasoline to
be necessary, then the comparable emissions reductions produced by the
alternative of CBG Type 2 gasoline would also be necessary. EPA is
proposing to approve the VOC performance standard and the oxygen, T50
and T90 requirements because either they are not preempted under
section 211(c)(4)(C) or to the extent that they are or may be
preempted, EPA is proposing, as discussed below, that they are
necessary and hence approvable under section 211(c)(4)(C).
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\7\ See 62 FR 31734 (June 11, 1997).
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2. Finding of Necessity
As discussed below, EPA is proposing to find that the CBG
NOX performance standards are necessary for the Phoenix
PM10 nonattainment area to meet the PM10 NAAQS,
and that the CBG VOC and HC performance standards, and the oxygen, T50
and T90 requirements are necessary for the Phoenix ozone nonattainment
area to meet the ozone NAAQS.
To make this determination, EPA must consider whether there are
other reasonable and practicable measures available that would produce
sufficient emissions reductions to attain the ozone and PM10
standards without implementation of the CBG requirements. In
considering other measures for the purpose of demonstrating necessity
under section 211(c)(4)(C), EPA agrees that Arizona need not submit an
evaluation of alternative fuels measures. As discussed above, the State
conducted an extensive public process to evaluate emissions control
options, including fuels options. Arizona not only considered other
fuels options, including opt-in to federal RFG, it has actually
implemented this measure for a limited time. However, Arizona did not
address retention of RFG or other fuels measures in its section
211(c)(4)(C) submission, and EPA concurs with this approach. EPA
interprets the reference to ``other measures'' that must be evaluated
as generally not encompassing other state fuels measures, including
state opt-in to federal RFG. The Agency believes that the Act does not
call for a comparison between state fuels measures to determine which
measures are unreasonable or impracticable, but rather section
211(c)(4) is intended to ensure that a state resorts to a fuel measure
only if there are no available practicable and reasonable nonfuels
measures. Thus, in demonstrating that measures other than requiring CBG
gasoline are unreasonable or impracticable, a state need not address
the reasonableness or practicability of other state fuel measures.
To determine whether the State gasoline VOC performance standards
are necessary to meet the ozone NAAQS, EPA must consider whether there
are other reasonable and practicable measures available to produce the
needed emission reductions for ozone control. As mentioned previously,
the State and local governments have adopted and implemented a broad
range of ozone control measures. In addition, the ADEQ has developed a
Voluntary Early Ozone Plan (VEOP) including air quality modeling and
additional control measures.
EPA examined Urban Airshed Modeling (UAM) completed for the VEOP,
which evaluated the effects of existing and future VOC control
measures, to support the necessity finding for this
rulemaking.8 The fifteen control measures that were
evaluated for 1999 9 are: (1) purge test in I/M (evaluated
for 2010); (2) final I/M cutpoints; (3) I/M testing of constant 4-by-4
vehicles; (4) federal RFG (both Phase I and Phase II RFG at 7.2 psi
RVP; (5) adoption of California standards for off-road mobile sources;
(6) voluntary catalyst replacement program; (7) voluntary vehicle
retirement program; (8) voluntary commercial lawn mower replacement;
(9) new standards for the use of industrial cleaning solvents; (10)
alternative fuels tax incentives; (11) Motor Vehicle Division
registration enforcement and mandatory insurance; (12) pollution
prevention; (13) temporary power at construction sites; (14)
alternative-fuelled buses; and (15) traffic light synchronization. (See
Appendix H, Exhibit 2, Attachment 3 of the SIP submittal.)
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\8\ The control measure analysis submitted for the VEOP should
be considered a preliminary draft analysis. The Phoenix
nonattainment area was originally classified as moderate but was
reclassified to serious after the VEOP was completed. Arizona is
currently developing a serious area plan. However, the plan has not
been completed in time for inclusion in this SIP revision and
therefore could not be examined to support the necessity finding.
\9\ 1999 was chosen as the modeling year because it is the next
ozone attainment date in the Clean Air Act after 1996. See CAA
181(a)(1).
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Results from the modeling demonstration showed that, using Arizona
CBG gasoline (modeled as federal RFG or California RFP with an RVP of
7.0 psi) plus all other measures identified, the Maricopa area would
still fail to attain the 0.12 ppm ozone NAAQS in 1999. The VEOP
indicates that ozone control measures need to show a 13 percent
reduction of ambient ozone to attain the standard in 1999. The percent
reduction from Federal Phase II RFG and California Phase II RFG is 3.9
percent and 2.6 percent respectively. The total percent reduction
available from the measures examined in the VEOP is less than 6
percent.
If the State's CBG VOC emissions performance standards were not
implemented, the projected shortfall in emissions reductions would be
larger. EPA recognizes that these estimates for reductions needed,
reductions produced by various measures, and the scope of the measures
available are all based on analysis that will be further refined and
updated as the State's serious area plan is developed. Nevertheless,
EPA is basing today's action on the information available to the Agency
at this time, which does not indicate that there are other reasonable
and practicable measures available to the State that would fill the
projected emissions reduction shortfall. Hence, EPA proposes to find
that the CBG VOC emissions performance standards are necessary for
attainment of the ozone
[[Page 61946]]
NAAQS, and EPA proposes to approve them as a revision to the Arizona
SIP for the Phoenix ozone nonattainment area.
The State, the Maricopa County air pollution control agency, and
the local jurisdictions in Maricopa County have adopted and implemented
a broad range of particulate control measures and are currently
considering additional controls in the course of developing the serious
area PM10 plan for the Maricopa County nonattainment area.
The State's submission in support of the necessity demonstration
includes both measures that are currently being implemented or for
which commitments are in place, and various additional measures being
considered for implementation in the serious area plan.
The air quality modeling submitted by ADEQ shows that
implementation of all of the PM10 control measures
identified by the State would still result in an emissions shortfall
and the area would need an additional 2.4 percent reduction in the
ambient concentrations of PM10 to demonstrate attainment of
the PM10 NAAQS. The State's analysis projects that two
additional measures, paving 100% of unpaved roads and controlling 100%
of shoulders and access points, would produce sufficient emissions
reductions to eliminate this shortfall. However, Arizona has
characterized these measures as unreasonable for purposes of section
211(c)(4)(C) and hence inappropriate to consider as available control
measures in the necessity demonstration.
EPA agrees that, for purposes of section 211(c)(4)(C), both paving
100% of unpaved roads and controlling 100% of shoulders and access
points would be unreasonable measures to implement in the Phoenix area
in comparison to the CBG NOX performance standard. In
determining whether a control measure is unreasonable or impracticable
for purposes of section 211(c)(4)(C), reasonableness and practicability
should be determined taking into account a comparison with the fuel
measure that the state is petitioning to adopt. EPA must assess whether
it would be reasonable and practicable to require the other control
measure in light of the potential availability of the preempted state
fuel control. Finding another measure unreasonable or impracticable
under this criterion does not necessarily imply that the measure would
be unreasonable or impracticable for other areas, for the same area
under different circumstances, or for the same area under an analysis
outside of the section 211(c)(4)(C) context.10 For further
discussion of this criterion see ``Guidance on Use of Opt-In to RFG and
Low RVP Requirements in Ozone SIPs,'' U.S. EPA, Office of Mobile
Sources, August 1997.
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\10\ For example, given the different criterion for EPA's
section 211(c)(4)(C) evaluation, today's proposed finding does not
in any way prejudge the question of whether these same measures
might be reasonable in the context of the requirements in section
189 (a) and (b) for reasonably available control (RACM) and best
available control measures (BACM) for PM10 control.
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Controlling PM10 through paving 100% of unpaved roads
and controlling 100% of shoulders and access points raises concerns
regarding costs, feasibility, timing, administrative burdens, and
burdens on individual citizens. ADEQ estimates the capital cost of
paving 100% of unpaved roads to be $59.4 million, which is $54 million
more than ADEQ's identified alternative of chemically controlling 100%
of unpaved roads and would only reduce emissions by an additional 1.9%.
To control 100% of shoulders and access points through installing curbs
on 100% of paved road shoulders and paving 100% of access points to
paved roads, ADEQ estimates a capital cost of $733.3 million, which is
$366.65 million more than the estimated cost of its identified
alternative measure which would be to control 50% of shoulders and
access points. In addition, ADEQ has serious concerns about the
feasibility of successfully paving all unpaved roads in the area with
greater than 120 Average Daily Travel (ADT) miles and controlling all
shoulders and access points before the attainment date of December 31,
2001. Besides the significant capital expenditure associated with these
measures, implementation of these measures would impose a substantial
administrative burden on local and state agencies and would require
significant coordination of local and state agencies. In addition,
motorists throughout the area would experience the inconveniences and
delays associated with extensive road construction projects.
In comparison to the measures discussed above, the infrastructure
for implementation of the fuel measure is already in place. This
significantly reduces the burden on the implementing refineries, and
would allow implementation of the measure to begin as early as the
summer of 1998. Most of the compliance burden associated with the
measures will be felt by a limited number of fuel suppliers. In
addition, most of the compliance and implementation burdens associated
with CBG have already been shown to be necessary for compliance with
the ozone NAAQS. Therefore any additional burden for compliance with
NOX performance standards will be minimal. Finally,
implementation of the measure would require only limited new
coordination efforts between ADEQ and ADWM. Thus, in comparison to the
CBG NOX performance standard, for the purposes of section
211(c)(4)(C), it would be unreasonable to require paving 100% of
unpaved roads and controlling 100% of shoulders and access points in
the Phoenix area in the timeframe considered here. 11
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\11\ See footnote 10 and related discussion above for
explanation of limited applicability of this proposed finding.
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Because the State is currently working on the underlying analysis
for the serious area PM10 plan for the Maricopa County
nonattainment area, due December 10, 1997, EPA notes that the
information relied on here is preliminary. The State may further refine
its estimates of the emissions reductions needed, the emissions
reductions produced by various control measures, and the scope of
control measures available. Nevertheless, the information submitted by
the State indicates that even with the implementation of all reasonable
and practicable control measures known to be available at this time,
including CBG, 12 additional emissions reductions will be
needed for timely attainment of the PM10 standard.
Therefore, EPA proposes to find that the NOX performance
standard in the CBG requirements is necessary for attainment of the
PM10 standard, and EPA proposes to approve this requirement
as a revision to the Arizona SIP for the Phoenix PM10
nonattainment area. 13
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\12\ Arizona CBG was included in the modeling analysis as
Federal RFG, Phase II at 100% market share.
\13\ In its September 12, 1997 letter, ADEQ submitted the CBG
Interim Rule as a revision to the Arizona ozone SIP. In order for
EPA to take final action approving the CBG rule into the Arizona
PM10 SIP, the State will need to formally submit the rule
as a revision to that SIP. ADEQ has informed EPA that it intends to
do so in the near future.
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C. Enforceability
The ADWM has developed requirements for every entity in the
gasoline distribution system to ensure that Maricopa County will
receive gasoline that meets the state CBG standards. 14 The
requirements, which include registration of gasoline suppliers, testing
and sampling, compliance surveys, and record keeping and reporting,
apply to (1) service stations, (2) fleet owners, (3) third party
terminals, (4) pipelines and fuel transporters, (4) oxygenate blenders,
and
[[Page 61947]]
(5) producers and importers of CBG. The requirements imposed by the CBG
rule apply to activity occurring both within and outside of the State
of Arizona. The State Attorney General's office has provided an
analysis concluding that the State has full authority to enforce the
rules and the associated requirements beyond the State borders.
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\14\ AAC R20-2-751. Area A Arizona CBG Requirements--1999 and
AAC R20-2-751.01 Area A Arizona CBG Requirements--1998.
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Before any CBG suppliers may produce or import CBG, it must
register with the ADWM.15 These suppliers include any
refiner, importer, oxygenate blender, pipeline or third party terminal
who will produce, supply or have custody of Arizona CBG after June 1,
1998. These registered suppliers must certify that each batch of gas
meets the CBG standards as described in the Interim Rule. They must
retain records of the sampling for five years; supply these records to
ADWM, if requested, within 20 days; and notify ADWM of transport
methods other than pipelines. They must also maintain a quality
assurance/quality control (QA/QC) program to verify the accuracy and
effectiveness of fuel testing or use an independent laboratory to
complete testing (unless computer-controlled in-line blending equipment
is in operation which is supplying audit reports to EPA and ADWM under
40 CFR 80.65(f)(4)).16
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\15\ AAC R20-2-750. Registration Pertaining to Arizona CBG or
AZRBOB.
\16\ AAC R20-2-752. General Requirements for Registered
Suppliers.
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Registered oxygenate blenders must follow the blending requirements
submitted by the registered supplier and comply with additional
blending requirements. For all terminal blending facilities, registered
blenders must determine the oxygen content and volume of final blends
before such blends leave the oxygen blending facility. Oxygenate
blenders completing operations in gasoline delivery trucks must
implement a quality assurance sampling and testing program. In-line
blending operators using computer controlled blending must sample the
fuel after the addition of oxygenate and prior to combining the batch
with other gasoline, and they must notify the pipeline and ADWM of any
batch which does not contain the specified type and amount of
oxygenate. Oxygenate blenders must keep records of sampling and
shipments for five years and make those records available within 20
days of a request.17
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\17\ AAC R20-2-755. Additional Requirements Pertaining to AZRBOB
and Downstrean Oxygenate Blending.
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Registered pipelines and third party terminals may not accept
Arizona CBG from a supplier that is not registered with ADWM and that
cannot submit written verification that the gasoline meets CBG
standards. These gasoline transporters must also complete sampling of
all CBG batches, report non-compliance of any batches with CBG
standards within 24-hours of sampling to ADWM, and develop a QA/QC
program to demonstrate the accuracy and effectiveness of the laboratory
testing. Pipelines must also submit a monthly report to ADWM
summarizing the results of laboratory testing of all Arizona CBG that
has entered a pipeline (including the present location of the fuel
sample).18
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\18\ AAC R20-2-753. General Requirements for Pipelines and Third
Party Terminals.
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Fleet owners and service stations do not have to sample gasoline.
However, they must retain on-site records for their most recent four
deliveries, which verify the quantity and identify of each grade of
motor fuel delivered. Service stations and fleet owners may maintain
these records for the remainder of the previous 12 months off-site if
the records are made available within two working days from the time of
a request. These records shall contain: the name and address of the
transferor and transferee; the volume, minimum octane rating, VOC and
NOX reduction percentage standards, and origination point of
the CBG; the date of transfer, proper identification of the gasoline as
Arizona CBG or AZRBOB;19 and the type and quantity of
oxygenate contained in the Arizona CBG or identification of the product
as AZRBOB, a statement that it does not comply with CBG standards
without the addition of oxygenate, and the oxygenate types and amount
needed to meet the properties claimed by the registered
supplier.20
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\19\ AZBOB, as defined in the CBG Interim Rule (AAC R20-2-701.3)
is ``a petroleum-derived liquid which is intended to be or is
represented as a product that will constitute Arizona CBG upon the
addition of a specified type and percentage (or range of
percentages) of oxygenate to the product after the product has been
supplied from the production or import facility at which it was
produced or imported.''
\20\ AAC R20-2-709. Records Retention Requirements for Service
Stations and Fleet Owners.
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To maintain compliance with Arizona CBG standards, in addition to
the ongoing registration, testing,21 quality assurance and
recordkeeping activities described above, ADWM will conduct compliance
surveys throughout the year.22 Each producer and importer of
CBG must contribute to the costs of two surveys of CBG quality in
Phoenix in the summer of 1998, followed by two surveys during the
summer and winter seasons 23 for each following year, based
on gasoline samples collected at retail outlets. Each compliance survey
will be conducted by an independent surveyor who will develop a survey
plan with committed funding for the season, to be submitted to ADWM by
April 1 of each year. These surveys will cover compliance with VOC and
NOX reduction levels and average levels of RVP, T50, T90,
aromatic hydrocarbons, olefins, sulfur and oxygen. The results of each
survey will be submitted to ADWM within thirty days following
completion of the survey. If the survey or other testing indicates that
the gasoline does not meet CBG VOC or NOX reduction
averaging 24 percentage standards, the registered supplier
must pay penalties and comply with more stringent applicable flat per
gallon standards during a probationary period. For example, on each
occasion that a sample fails a VOC emission reductions survey on or
after May 1, 1999, the VOC emissions performance reduction and the
minimum per gallon percentage reduction shall be increased by an
absolute 1.0%, not to exceed the VOC percent emission reduction per
gallon standard. 25
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\21\ AAC R20-2-759. Testing Methodologies.
\22\ AAC R20-2-760. Compliance Surveys.
\23\ The summer season will last from May 1 through September 15
and the winter season will last from November 1 through March 15 of
each year.
\24\ Under the CBG rule, if they submit to compliance surveys,
registered suppliers can initially elect to comply with an average
VOC reduction standards of 29 percent with a minium per gallon
reduction of 25 percent instead of a flat per gallon percent
reduction standard of 27.5 percent. See AAC R20-2-751.01.
\25\ AAC R20-2-751.01(F) Area A Arizona CGB Requirements--1999
and Later, Consequences of failure to comply with averages.
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D. Proposed Action
EPA has evaluated the submitted SIP revision and has determined
that it is consistent with the CAA and EPA regulations. EPA has also
found that the various CBG requirements are either not preempted by
federal fuel requirements or are necessary for the Phoenix
nonattainment area to attain the ozone and PM10 NAAQS,
pursuant to CAA. Therefore, EPA is proposing to approve the Arizona CBG
Interim Rule into the Arizona SIP for the Phoenix ozone and
PM10 nonattainment areas under section 110(k)(3) of the CAA
as meeting the requirements of section 110(a) and part D.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic,
[[Page 61948]]
and environmental factors and in relation to relevant statutory and
regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This proposed rule
would not have a significant impact on a substantial number of small
entities because this federal action authorizes and approves
requirements previously adopted by the State, and imposes no new
requirements. Therefore, because this proposed action does not impose
any new requirements, the Administrator certifies that it does not have
a significant impact on any small entities affected. Moreover, due to
the nature of the Federal-State relationship under the CAA, preparation
of a flexibility analysis would constitute Federal inquiry into the
economic reasonableness of state action. The Clean Air Act forbids EPA
to base its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must
prepare a budgetary impact statement to accompany any proposed or final
rule that includes a Federal mandate that may result in expenditures to
State, local, and tribal governments in the aggregate, or to the
private sector, of $100 million or more in any one year. Under section
205, EPA must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this proposed approval action does not
include a Federal mandate that may result in expenditures of $100
million or more to either State, local, and tribal governments in the
aggregate, or to the private sector in any one year. This proposed
Federal action authorizes and approves requirements previously adopted
by the State, and imposes no new requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, will result from this proposed action.
Dated: November 14, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-30517 Filed 11-19-97; 8:45 am]
BILLING CODE 6560-50-P
