Air quality implementation plans; approval and promulgation; various States: Arizona,
[Federal Register: March 4, 2004 (Volume 69, Number 43)]
[Rules and Regulations]
[Page 10161-10165]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr04-8]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AZ-082-0072; FRL-7626-1]
Approval and Promulgation of Implementation Plans; Arizona-- Maricopa County Ozone, PM-10 and CO Nonattainment Areas; Approval of Revisions to Maricopa County Area Cleaner Burning Gasoline Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: We are approving revisions to the Arizona Cleaner Burning Gasoline
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(CBG) program currently approved in the State implementation plan (SIP). Specifically, we are approving revisions that, among other changes, replace Arizona's interim CBG program with a permanent program, amend the wintertime CBG program to limit the types of gasoline that may be supplied, and remove the minimum oxygen content requirement for summertime gasoline.
EFFECTIVE DATE: April 5, 2004.
ADDRESSES: Copies of the documents relevant to this action are available for public inspection during normal business hours at EPA Region 9's Air Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901. Due to increased security, please call 24 hours ahead of your visit so that we can arrange to have someone meet you.
Electronic Availability
This document and the Technical Support Document (TSD) for this rulemaking are also available as electronic files on EPA's Region 9 Web page at http://www.epa.gov/region09/air/phoenixcbg/.
FOR FURTHER INFORMATION CONTACT: Wienke Tax, Office of Air Planning, (AIR-2), EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105- 3901. Phone: (520) 622-1622; e-mail: tax.wienke@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'' and ``our'' refer to U.S. EPA.
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Background
On September 29, 2003 (68 FR 55920), EPA published a notice of proposed rulemaking for the State of Arizona. The notice proposed approval of revisions to the SIP for Arizona's CBG program. These revisions to the Arizona CBG program have been adopted by the Arizona Department of Environmental Quality (ADEQ) and the State legislature since EPA approval of the interim CBG program in 1998.
ADEQ submitted the changes to its CBG program to EPA for approval into the SIP in five separate SIP submittals: SIP Revision, Arizona Cleaner Burning Gasoline Permanent Rules--Maricopa County Ozone Nonattainment Area, February 1999 (``CBG Permanent Rules''), State Implementation Plan Revision for the Cleaner Burning Gasoline Program in the Maricopa County Ozone Nonattainment Area, March 2001 (``Summertime Minimum Oxygen Content Removal''), Arizona Cleaner Burning Gasoline Rule to Revise the State Implementation Plan for the Maricopa County Carbon Monoxide, Ozone, and PM10 Nonattainment Areas, August 2001 (``CBG Wintertime Rules''), Supplement to Cleaner Burning Gasoline Program State Implementation Plan Revision, September 2001 (``Technical Supplement'') and Supplement to Cleaner Burning Gasoline Program State Implementation Plan Revision, January 2004 (``Statutory Supplement'').\1\ The key changes from the interim CBG program approved into the SIP in 1998 are described below.
\1\ In accordance with section 110(k)(1)(B), these SIP submittals were deemed complete by operation of law six months after submittal.
Since 1997, ADEQ has adopted several amendments to its CBG rule in order to make it a permanent rule and to reflect changes made by the State legislature to the fuel provisions of the Arizona Revised Statutes (ARS). Most of these changes involve the removal of SIP- approved requirements and options. The ``CBG Permanent Rules'' include the following key changes from the interim rules currently approved in the SIP:
[sbull] The standards for Type 3 gasoline (modeled after Federal Phase 1 reformulated gasoline [RFG]), which was only available as an option in 1998, have been removed along with references to this fuel option.\2\
\2\ This change was included in ADEQ's February 1999 ``CBG Permanent Rules'' submittal and reflects changes to the Arizona Revised Statutes by HB 2307.
[sbull] Summertime minimum oxygen content standards for Type 1 gasoline (modeled after Federal Phase 2 RFG) have been removed by specifying a 0.0% minimum oxygen content for April 1 through November 1 in Table 1 of the rule.\3\
\3\ For additional information, see ADEQ's March 2001 ``Summertime Minimum Oxygen Content Removal'' submittal. These changes reflect amendments to the Arizona Revised Statutes by SB 1504.
[sbull] The option of supplying Type 1 fuel during the winter fuel season (November 2 through March 31) has been removed by including wintertime fuel specifications that limit suppliers to Type 2 gasoline (modeled after California Air Resources Board (CARB) Phase 2) beginning in 2000. With this change, requirements for wintertime NOX surveys have also been removed because Type 2 gasoline does not include a NOXperformance standard.
[sbull] The option to provide non-ethanol oxygenated fuel during the winter has been removed by amending the wintertime oxygen content provisions to require fuel containing 10% ethanol, unless the use of a non-ethanol oxygenate is approved by the Director of ADEQ.\4\
\4\ This change was also included in ADEQ's August 2001 ``CBG Wintertime Rules'' submittal implementing changes to the Arizona Revised Statutes by HB 2347.
[sbull] NOXperformance standards for Type 1 gasoline and summer survey requirements have been amended to conform with changes made by EPA to the Federal RFG regulations in December 1997 (62 FR 68196).\5\
\5\ See ADEQ's August 2001 ``CBG Wintertime Rules'' submittal.
[sbull] The area subject to the program has been redefined to include all of Maricopa County as well as some western portions of Pinal County and a small part of southern Yavapai County.\6\
\6\ The definition of the covered area has been changed in several statutory and regulatory revisions. The final definition submitted for EPA approval is described in ADEQ's August 2001 ``CBG Wintertime Rules'' submittal and reflects statutory changes made by HB 2189.
A more complete description of Arizona's submittals and the rationale for our approval are presented in the notice of proposed rulemaking (68 FR 55920, Sept. 29, 2003), and associated Technical Support Document (available at http://www.epa.gov/region09/air/phoenixcbg/).
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Public Comments on the Proposed Action
We received two comment letters on the September 29, 2003, proposal. The first, from the Western States Petroleum Association (WSPA), strongly supported the proposed SIP approval. The second, from the Arizona Center for Law in the Public Interest (ACLPI), raised concerns regarding the impact on ambient ozone concentrations. ACLPI's comments are addressed below.
In addition to these comments, we received e-mails submitted prior to publication of the proposal in the Federal Register, apparently reacting to news stories about the CBG program and MTBE. While these e- mails do not appear to address our proposed action and therefore do not appear to be intended as comments, we discuss them below to address potential confusion over the nature of today's action.
ACLPI Comments
Comment: ACLPI suggests EPA's finding under CAA section 110(l)-- that the CBG program revisions will not interfere with attainment and reasonable further progress--is not sufficiently definitive. Specifically, ACLPI notes that, ``EPA acknowledges that this removal
[of the summertime minimum oxygen content requirement] `could result in increases in VOC and CO emissions and a decrease in NOX emissions' all of which would have the effect of increasing ozone.'' ACLPI argues that the basis for EPA's finding is the unsupported assumption that
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oxygen content will not affect emissions from newer vehicles and therefore the projected emissions changes are ``relatively small'' and are more than offset by Phoenix's general downward trend in ambient ozone concentrations from 1996 to 2002.
Response: We concluded in our proposal that the removal of the two percent minimum oxygen requirement for summertime CBG is not a relaxation of the SIP because the SIP-approved regulations already allowed the use of non-oxygenated CBG (CBG Type 2 produced under the averaging option) during the summer control period. Thus, the fuel options allowed under the revised State rules will be no less stringent than those allowed under the current SIP. This side-by-side comparison of regulatory requirements is appropriate for purposes of satisfying CAA section 110(l) in areas meeting the NAAQS. See Hall v. EPA, 273 F.3d 1146, 1160 n. 11 (9th Cir. 2001) (noting ``no relaxation'' test would ``clearly be appropriate in areas that achieved attainment under preexisting rules'').
We nonetheless went further in working with ADEQ to assess the changes in emissions and ozone concentrations likely to occur as a result of this change to the CBG program. ACLPI notes our preliminary conclusion that small emissions increases might not be a concern given the declining ozone concentrations in the area. As noted above, this preliminary assessment was not the basis for our 110(l) determination. Nor was it the end of our analysis.
To confirm this preliminary conclusion we conducted detailed modeling to predict not only how emissions might change but what these emission changes would mean for ozone concentrations. First, we looked at how historical ozone concentrations would have been affected by the potential fuel changes. Our modeling showed that the new fuel, if used in place of the baseline fuel, would have resulted in a four percent decrease in the ozone design value from the 1999 baseline year. Second, to evaluate future ozone concentrations, we conducted a qualitative analysis to predict likely trends in emissions and concentrations. We explained that with newer vehicles, the effect of gasoline oxygen content on vehicle emissions is likely to diminish, and any small emissions changes will be overwhelmed by emission reductions achieved by new engine controls. Between these two findings, we concluded that the fuel provided to the area will be better for ozone concentrations than the fuel used in the area at the time of attainment and that emissions from vehicles will continue to decline into the future.
ACLPI does not acknowledge the analysis provided. Instead, ACLPI points to our note that there is not enough data to conclude that gasoline oxygen content will affect emissions from the newest generation of vehicles. ACLPI implies that we therefore do not know how fuel changes will affect emissions in the future.
While our models for estimating vehicle emissions do not yet include data for the newest generation of vehicles, we know how gasoline oxygen content affects older vehicles and we know that as the overall fleet of vehicles changes, the effect of oxygen content diminishes.\7\ In addition, we know that as the fleet changes to include more newer vehicles, engine technologies will result in significant emission reductions that overwhelm this diminishing effect from gasoline oxygen content. Thus, even though we cannot model the specific effect of oxygen content on newer vehicles, it is reasonable to conclude that emissions will continue to improve with changes to the fleet.
\7\ The benefit of adding oxygen to gasoline is to ``lean out'' chemically an engine that is running rich (i.e., too much fuel, not enough air (oxygen)), so that complete combustion occurs (i.e., the additional air/oxygen results in CO being converted to CO2). Newer vehicles, however, include sophisticated feedback controls, which enable these vehicles to maintain air/fuel ratios within tight parameters. These ratios are maintained with or without the addition of oxygen to gasoline. As a result, the benefits of gasoline oxygenates will decline as these feedback controls improve in newer vehicles.
Comment. ACLPI also claims that it is anticipated that Phoenix will violate the new 8-hour ozone standard and therefore objects to EPA's failure to analyze the potential impact on 8-hour ozone concentrations.
Response. While we did not conduct a separate analysis for 8-hour ozone concentrations, we did explain that the analysis described above should ensure that the revisions to the fuel program will not interfere with 8-hour ozone attainment. Modeling showed that the new fuels likely to be provided to the area will result in a decrease in peak ozone concentrations as compared to the fuel provided in 1999. In addition, motor vehicle emissions will continue to decline as improvements in engine technologies will overwhelm the diminishing effect of gasoline oxygen content on these emissions.
Related E-mails Submitted to EPA
We received four e-mails, all submitted before the September 29 publication of the proposed action--one on September 8, one on September 15 and two from the same person on September 23. The first two of these e-mails encouraged ADEQ to move away from using MTBE as an oxygenate. The final two raised questions about how emission reductions would be achieved if the area no longer had a CBG program with MTBE.
These e-mails suggest some confusion regarding the nature of the action being taken by ADEQ and EPA. We therefore felt it important to reiterate that our action does not ban MTBE from Arizona summertime gasoline. The revisions to the CBG program remove the minimum summertime oxygen content requirement, but do not ban the use of MTBE or any other oxygenate during the summer. Our approval of these revisions likewise, does not preclude the use of MTBE.
With this in mind, we evaluated the fuel formulations refiners are likely to supply the area. We concluded approval of these CBG program revisions may result in a mixture of MTBE-oxygenated CBG and non- oxygenated CBG (i.e., ethanol-oxygenated fuel appears unlikely). The cheapest fuel to produce will likely be non-oxygenated Type 1 CBG. We used these likely fuels to evaluate air quality impacts and concluded these changes will not adversely affect air quality in the area.
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Final Action
In today's action, we are finding that the Arizona CBG program implemented in the Maricopa County area meets CAA and EPA requirements for a state fuels program. In addition, under CAA section 110(l), we are finding that the SIP revisions submitted by ADEQ do not interfere with any applicable requirements for CO, ozone, and PM-10 attainment and reasonable further progress (RFP) or any other requirements of the CAA applicable to the Phoenix area. The basis for these findings is discussed in the proposal for today's action. See 68 FR 55920.
We have evaluated the submitted SIP revisions and have determined that they are consistent with the CAA and EPA regulations. Therefore, we are approving the Arizona CBG program into the Arizona SIP under section 110(k)(3) of the CAA as meeting the requirements of section 110(a) and part D to address ozone, CO and PM-10 nonattainment in the Maricopa County area.
Specifically, we are approving the following elements of the CBG program: Arizona Administrative Code (AAC) R20-2-701, R20-2-716, R20-2- 750 through 762, and title 20, chap. 2, art. 7, Tables 1 and 2 (March 31, 2001); and Arizona Revised Statutes (ARS) Sec. Sec. 49-541(1)(a), (b), and (c) (as codified on
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August 9, 2001), 41-2124 (as codified on April 28, 2000), 41-2123 (as codified on August 6, 1999), 41-2113(B)(4) (as codified on August 21, 1998), 41-2115 (as codified on July 18, 2000), and 41-2066(A)(2) (as codified on April 20, 2001).
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 a state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
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Statutory and Executive Order Review
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 (Public Law 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. 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.
In reviewing SIP submissions, 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 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. 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 May 3, 2004. 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 CAA section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental regulations, Ozone, Particulate matter, Reporting and recordkeeping requirements.
Dated: January 26, 2004. Wayne Nastri, Regional Administrator, Region 9.
0 Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
0 1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--Arizona
0 2. Section 52.120 is amended by adding paragraphs (c)(112) and (c)(113) to read as follows:
Sec. 52.120 Identification of plan.
* * * * *
(c) * * *
(112) Revised regulations were submitted on August 15, 2001, by the Governor's designee as part of the submittal entitled Arizona Cleaner Burning Gasoline Rule to Revise the State Implementation Plan for the Maricopa County Carbon Monoxide, Ozone, and PM10 Nonattainment Areas. The incorporated materials from this submittal supercede those included in the submittals entitled SIP Revision, Arizona Cleaner Burning Gasoline Permanent Rules--Maricopa County Ozone Nonattainment Area, submitted on February 24, 1999, and State Implementation Plan Revision for the Cleaner Burning Gasoline Program in the Maricopa County Ozone Nonattainment Area, submitted on March 29, 2001.
(i) Incorporation by reference.
(A) Arizona Administrative Code.
(1) AAC R20-2-701, R20-2-716, R20-2-750 through 762, and Title 20, Chap. 2, Art. 7, Tables 1 and 2 (March 31, 2001).
(113) Revised statutes were submitted on January 22, 2004, by the Governor's designee as part of the submittal entitled Supplement to Cleaner Burning Gasoline Program State Implementation Plan Revision. The incorporated materials from this submittal supercede those included in the submittals entitled SIP Revision, Arizona Cleaner Burning Gasoline Permanent Rules--Maricopa County Ozone Nonattainment Area, submitted on February 24, 1999, State Implementation Plan Revision for the
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Cleaner Burning Gasoline Program in the Maricopa County Ozone Nonattainment Area, submitted on March 29, 2001, and Arizona Cleaner Burning Gasoline Rule to Revise the State Implementation Plan for the Maricopa County Carbon Monoxide, Ozone, and PM10 Nonattainment Areas, submitted August 15, 2001.
(i) Incorporation by reference.
(A) Arizona Revised Statutes.
(1) ARS sections 49-541(1)(a), (b), and (c), 41-2124, 41-2123, 41- 2113(B)(4), 41-2115, and 41-2066(A)(2) (as codified on March 31, 2001).
[FR Doc. 04-4814 Filed 3-3-04; 8:45 am]
BILLING CODE 6560-50-P
