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Citation: 56 Fed. Reg. 5458 1991

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-- The search text of this PDF is generated from uncorrected OCR text.5458 Federal Register / Vol. 56, No. 28 / Monday, February 11, 1991 / Rules and Regulations ENVIONMETAL ROTETIO

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part §2
[FRL-3901-31
Approval and Promulgation of Implementation Plans; ArizonaMarlcopa and Pima Nonattalnment Areas; Carbon Monoxide Federal Implementation Plan

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is today disapproving portions ofthe Arizona state implementation plan (SIP) for carbon monoxide (CO) and promulgating a federal implementation plan (FIP)for the Maricopa (Phoenix) and Pima (Tucson) CO nonattainment areas. EPAis taking this action solely to comply with the Ninth Circuit Court ofAppeals order in Delaneyv.EPA, 898 F.2d 687 (9thCir. 1990). This court order as amended required EPA todisapprove the Arizona CO SIP and to promulgate aFIP by January 28, 1991.

As part ofthe FIP, EPA is promulgating two rules forMaricopa nonattainment area.Together, these ruleswill require all gasoline soldin the

area between October 1and March 31, starting October 1,1991, to contain a minimum oxygen content of2.7 percent oxygen by weight and have a volatility ofno more than 10 pounds per square inch (psi). These two measures, combined with existing State and local
measures, will bring the Maricopa area into attainment ofthe CO NAAQS by late 1991 and maintain the standard for at least 10 years. No similar measures
are being promulgated forPima County because existing state and local

measures have already reduced emissions in the area below the level needed to attain and maintain for ten years the CONAAQS. Finally, the FIP contains conformity and contingency plans for bothMaricopa and Pima Counties as required by theDelaney order.
EFFECTIVE DATE: March 13, 1991. ADDRESSES: Docket No. 90-AZ-MAPI-1 containing material relevant to this action including all comments received by EPA on the proposed rulemaking and EPA's responses to the comments is located at: Technical Evaluation Section,A-2-1,

Air and Toxics Division. U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105. Public Information Reference Unit, PM211D, Room M-2904, U.S. Environmental Protection Agency, 401 M Street SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT. Julia I. Barrow, Chief, Technical Evaluation Section, A-2-1, Air and Toxics Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105, (415) 744-1230 FTS: 484-1230.
SUPPLEMENTARY INFORMATION:

I. Background and Summary of Proposal

On October 10, 1990 (55 FR 41204), EPA proposed a federal implementation plan (FIP) for the Maricopa and Pima County, Arizona, carbon monoxide (CO) nonattainment areas. Today's notice summarizes the proposal but does not restate the details ofthat proposal. Readers are referred to that notice for further information. EPAproposed this FIP in direct response to the order ofthe Ninth Circuit Court ofAppeals in Delaneyv.EPA, 898 F.2d 687 (9th Cir. 1990). In Delaney,the court stated:

We direct EPA to disapprove [the Maricopa and Pima County CO SIPs] and to promulgate federal implementation plans consistent with this opinion within six months.To summarize, thenew plans must utilizeall available control meaqjires to attain the carbon monoxide ambient air quality standard as soon as possible. The

new plans must contain contingency and conformity plans in accordance with EPA guidelines and must be based on the most recent traffic projections currently available. 898 F.2d. at695.

The court originally ordered EPA to promulgate plans by November 26, 1990; however, on November 21, 1990, the
court granted EPA a two-month extension of the promulgation deadline
to January 28, 1991.

ForMaricopa County, EPA performed air quality modeling incorporating the latest traffic projections and determined the emission reductions needed for expeditious attainment. EPA then screened a list of55 transportation and mobile source control measures for possible implementation to determine which measures were available to bring about attainment as soon as possible. From its screening, EPA identified two

measures: an oxygenated fuels program at an average 2.7 percent oxygen and a wintertime gasoline volatility limit of10 pounds per square inch (psi). EPA proposed to allow gasoline suppliers to sell fuels with arange ofoxygen contents so long as their sales-weighted
average oxygen content was 2.7 percent. Theproposed program would also have allowed gasoline suppliers to trade
oxygen credits as a means of complying with the average 2.7 percent oxygencontent requirement. As proposed, both the oxygenated fuels program and the gasoline volatility limit had an implementation date ofOctober 1, 1991 and, in combination with existing State and local measures, would have resulted in attainment ofthe CO NAAQS in the Maricopa area by December 31, 1991 and maintenance until at least late 2000.

For Pima County, EPA determined that State and local measures had already reduced CO emissions in the

area to below the level needed to attain and maintain the CO NAAQS for at least ten years. EPA, therefore, did not propose any federal control measures for Pima County.

EPA also proposed conformity and contingency procedures in accordance with EPA guidance forboth the Pima and Maricopa CO nonattainment areas. The conformity plan proposed procedures for the Maricopa Association ofGovernments and the Pima Association ofGovernments to use when evaluating any transportation plan, program, or project which they might approve for conformity with the applicable air quality plan.The contingency plan described steps EPA would take ifit found either the Pima or the Maricopa COplans inadequate to

ensure maintenance ofthe CO NAAQS and proposed a list ofhighway projects which would be delayed while the plan

was being revised.

On October 16, 1990, EPAheld a public hearing in Phoenix,Arizona, on the proposed FIP and received testimony from 14 speakers representing Arizona
state and local agencies, manufacturers and distributors ofgasoline or oxygenates, and the general public. The transcript from this public hearing has been placed in the docket for this rulemaking.

The comment period forthe proposal closed on November 9,1990 and the rebuttal/supplementary comment period for the public hearing required by section 307(d)(5) of the Clean Air Act (CAA orAct) I closed November 15, 1990. In all, EPA received 18 comment letters from Arizona state and local agencies, manufacturers and distributors ofgasoline oroxygenates, an environmental group, and the general public. These comment letters have been placed in the docket for this rulemaking. The major comments and response to those comments are summarized in this notice. Complete responses to all major
comments are contained in the technical

IUnless otherwise noted, citesto the CleanAir
Act Inthis notice refer to the Act asamended in 1977.

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support document (TSD) for this rulemaking.
II.LegalContext ofthisRulemaking

In setting aside EPA's approval ofthe Maricopa and Pima County CO SIPs, the Ninth Circuit in Delaneydetermined that the Agency's action did not comply with the Clean Air Act as amended in 1977, 42 U.S.C. 7401 etseq.In response to EPA's argument that the 1982 attainment deadline in the statute could be extended by up to three years from the date it approved theplan, the court found thedeadlines ofthe 1977 amendments to be absolute:

We believethat the only reasonable interpretation ofthe 1977 amendments isthat if the 1982 deadline that Congress specified is not met,the national ambient airquality standards mustbe attained as soon as possible with every available control
measure, including those that the EPA identified initscriteria for approving 1982 plans. 898F.2d at 691.

In its opinion, the court stated that "[w]e, and the EPA, are bound by the statutory scheme untilCongressalters thatscheme." (Emphasis added). 898 F.2d at 691. On November 15, 1990, the President signed into law the Clean AirAct Amendment of1990 PublicLaw No. 101--549. Thatlegislation comprehensively revises the Clean Air Act based, in part on the widespread failure of the states to meet theAct's attainment requirements. EPAbelieves that as a result ofthe 1990 Amendments to the CAA, it no longerhas the statutory authority to disapprove the Maricopa and Pima County CO SIPs and to promulgate FIPs in theirplace as required by theDelaneyorder.EPA discussed its legal interpretation of the 1990 Amendments as they apply to Delaneyin detail in a supplemental notice on January 9, 1991 (56 FR 826). On December 28, 1990, EPA filed a motion with the Ninth Circuit requesting that the court vacate itsorder in light of EPA's interpretation ofthe 1990 Amendments. The courthas not acted upon this motion; therefore, EPAmust comply with the standing courtorder in Delaneyat this time.

The Ninth Circuit's orderrequires EPA to disapprove the Arizona CO SiPs and promulgate a FIPin accordance with the Clean Air Act as amended in 1977 and with EPAguidance issued pursuant to that law. EPA's October 10, 1990,notice ofproposed rulemaking (NRPM)was issued on that basis.2 Therefore, today's

'EPA didattempt, to the extent possible and consistent with thecourt's order,to tailorits proposal toreflect the relevant provisionsofthe CAA amendmentbills then pending before theU.S. final notice is necessarily also based on the law prior to the 1990 Amendments.

II. SIP Disapproval
On August 10, 1988,EPA fully approved the 1987CO SIPrevisions to the Tucson AirPlanning Area (Pima plan), 53 FR 30220, and the 1987 Maricopa Association ofGovernments (MAG) Carbon Monoxide Plan and 1988 Addendum (MAG plan), 53 FR 30224. TheNinth Circuit inDelaneyvacated these approvals and directed EPA to disapprove the plans.

In vacating EPA's 1988 approvals of the Arizona plans, the court determined that they did not contain sufficient control measures to attain the CO ambient air quality standard "as soon as possible." In other words, the court set aside EPA's approvals forfailure to include additional measures, beyond those already included as part ofthe control strategy, rather than because the

measures submitted by the State were unworthy of approval for their effect in strengthening the SIP.Therefore, in today's notice, EPAis taking final action to disapprove only the attainment demonstration portions ofthe MAG and Pima plans, rather than theindividual control measures that serve to strengthen the SIP.8

In itsDelaneyopinion, the court also determined thatEPA arbitrarily and capriciously approved the MAG plan in the absence of conformity and contingency provisions required by EPA's January 22, 1981 SIP guidance (46 FR 7182, 7187-7188). Therefore, in today's notice, EPA is taking final action to disapprove the conformity and contingency provisions ofthe MAG CO plan.

In the conclusion and order portion of the opinion, the court stated that "[tihe

newplansmust contain contingency and conformity plans in accordance with EPA guidelines.

. ."(emphasis added) 898 F.2d at 695. As a final result, in order to comply with the court's directive, EPAis today also taking final action to disapprove the contingency provisions ofthe Pima CO plan.The Pima plandid not contain conformity provisions.

The above final disapproval actions

are undertaken solely to comply with theDelaneycourt's finding that the Arizona plans do not fully comply with

House ofRepresentatives and the Senate.However, the Amendment, as ultimately passed by Congress and signed into law by the President, differ in many respects from the bills onwhich EPArelied in its proposal.

3In a separate notice,published onJanuary 28, 1991, EPA took action to restore, as approved parts ofthe Arizona SIP,the individual control measures vacated bythe Ninth Circutin the Delaneyorder. the Clean AirAct as amended in 1977 and EPA guidance issuedpursuant to that law.
IV.Attainment and Maintenance ofthe CO NAAQS in Maricopa County
A. AirQualityModeling

EPA revised the air quality modeling for Maricopa County using a modified rollback analysis based on ambient air qualitymonitoring data from the previous two years and the latest traffic forecasts available. The October 10, 1990NPRM contains an extensive discussion ofEPA's modeling approach. See 55 FR41204, 41207.This modeling analysis showed that, with the existing control strategy, the Maricopa area would not achieve the CONAAQS until sometime in the 1994/95 CO season.

EPA received only minorcomments

on its modeling approach. Most comments pointed out inconsistencies between the NPRM and the draft TSD. These inconsistencies have been corrected and do not affect the results of EPA's modeling. Thefinal TSD contains

a full discussion ofthe comments received on the modeling and EPA's responses. B.Analysis of AvailableMeasures
1.Summary ofthe Proposal

InDelaneyv.EPA the court ordered EPA to "utilize all available measures to attain the ambient air quality standard forcarbon monoxide as soon as possible." EPA interpreted the court test to require a demonstration ofattainment

as expeditiously as practicable utilizing all measures available to the federal government that are capable of advancing the attainment date, short of those producing absurdly severe socioeconomic disruptions.

In applying theDelaneytest to Arizona, EPA screened a list of55

measures for the candidate measures which it could effectively implement in Maricopa County.Next, EPA selected from this set ofcandidate measures, the subset ofmeasures which were necessary toattain as soon as possible. The resulting subset ofmeasures was considered to be the "all available measures" required byDelaney.

EPA developed a list ofsix criteria on which itjudged whether a measure was
a candidate for availability. These criteria were derived from either Clean AirAct requirements or long-standing EPA policy.

In brief these six criteria were: the Agency's legal authority to implement the measure, the Agency's resources for implementing and enforcing the
measure, the technical feasibility ofthe 

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measure in Maricopa County, the potential adverse social and economic impacts ofthe measure, the secondary environmental and public safety impacts of the measure, and finally whether EPA's implementation of the measure would pre-empt equally or more effective state efforts. These criteria are described inthe NPRM at 55 FR 41204, 41210 (October 10, 1990).

The list ofthe 55 measures and the results of this screening for the first three criteria can be found in the Appendix to this notice. Detailed information ofthe results ofthe screening for each measure is contained in the final TSD for this rulemaking.

Upon conclusion ofthe screening, sixteen measures listed inTable 5 of the NPRM at 55 FR 41204, 41212 (October 10, 1990). Next, each ofthe candidate

measures was evaluated to determine if it would assist the area in attaining as

soon as possible. Two measures, the oxygenated fuels program at2.7 percent oxygen and a wintertime gasoline volatility limit of10 psi, were found to be available and to result in attainment

as soon as possible. The implementation ofthe other candidate measures would
not have advanced the attainment date provided by these two measures in conjunction with the existing SIP; therefore, EPA rejected these other

measures as not assisting in providing for attainment as soon as possible.

2. Response to Comments

Only the Arizona Center for Law in the Public Interest (ACLPI) commented

on the process the Agency used to

screen measures and the results ofthat analysis.

The needto includeAll Available ControlMeasuresintheFIP

Comments.ACLPI argued that the requirement in the court order for "all available measures" is independent of, and in addition to, the requirement "to attain as soon as possible." ACLPI also argued thatboth the Delaneyorder and EPA's 1979 SIPguidance required implementation plans to include

measures going beyond the bare minimum thought to be necessary at the time ofplan preparation because ofthe fallibility of attainment demonstrations. Finally, ACLPI claimed that EPA's rejection ofmeasures that it conceded to be reasonably available and that would produce emission reductions comparable to (or even greater than) those offered by the selected measures is arbitrary, capricious, and contrary to law.

Response.EPA disagrees that the requirements in the court order for "all available measures" and "to attain as soon as possible" are separate and independent requirements. Neither the Clean Air Act,EPA policy, nor the court speaks ofthe necessity for all available

measures without the modifying phrases: that arenecessary for attainment by a date certain (e.g., December 31, 1987), as expeditiously as practicable, or--in the case ofthe court order-as soon as possible. Expeditious attainment serves as the ultimate criterion for determining ifan otherwise available measure must be adopted and implemented. Measures are not required unless they are necessary for attainment. See CAA section 110(a)(2)(A), section 172(a)(1), section 172(a)(2), and section 172(b)(11)(C), EPA policy at 44 FR 20372, 20375 (April 4, 1979), and Delaneyv.EPA, 898 F.2d. at 691, 692 and 695 (9th Cir. 1990).

EPA also disagrees that its guidance and the court order require measures beyond those thought necessary for attainment in order to offset potential

errors in the attainment demonstration. EPA's requirement for SIP contingency provisions is intended to provide for the adoption ofadditional control measures ifthe SIP is found inadequate toprovide for attainment because oferrors in the SIPincluding imprecisions in the modeling and attainment projections. See 46 FR 7182, 7187 (January 22, 1981). EPA has interpreted this SIP requirement to apply equally to FIPs.

EPA rejected 14 of the 16 measures that itfound to be candidates for implementation after screening through the six criteria because the measures would not have advanced the attainment date from the date by which the remaining two measures would bring about attainment. Hence, these 14

measures were not needed to attain as

soon as possible. As EPA explained above, itdoes not believe that the CAA. its policies, or the Delaneyorder requires it to promulgate and implement

measures which are not needed to attain

as soon as possible. Thus, EPA never concluded that those 14 measures are "reasonably available" measures that would contribute to attainment as soon

as possible. Indeed, the fact that these

measures would not in any way advance the attainment date would, under EPA'sguidance on CAA section 172(b)(2), justify the conclusion that these measures are not "reasonably available." See Delaneyv.EPA, 898 F.2d
at 692 citing EPA guidance in 44 FR 20375 (April4, 1979).

EPA'sAuthority to OrdertheStateto ImplementSpecificMeasures

Comments.ACLPIbelieved thatEPA

can and must include in the Arizona FIP
every measure that would be available to state and local governments in adopting a SIP. ACLPIargued that,given the supremacy offederal law and regulation, EPAcannot take the position thatthe Clean Air Actprecludes it from adopting FIP provisions that impose duties and responsibilities on state and local agencies to expend funds, to adopt and enforce regulations, and to implement control measures and that such a position is directly contrary to the whole concept ofFIPpromulgation

as a surrogate for state inaction.

Response.As noted in theNPRM, EPA's authority to require states to legislate orexpend funds as part ofa FIP is unclear. In challenges to EPA's attempt to dojust that in several FIPs in theearly 19708, several courts of appeals held that EPA could not constitutionally do so. See, e.g., Brown

v.EPA, 521 F.2d 827 (9thCir.1975), vacated on other grounds, 431 U.S.99 (1977), "BrownI" In addition, in a subsequent case decided afterpassage ofthe 1977 amendments to the Act, the Ninth Circuit held that as a matter of statutory interpretation the Act did not authorize EPA to order states to implementvehicle inspection and maintenance programs. Brownv.EPA, 566F.2d 665 (9th Cir. 1977), vacated on other grounds, 431 U.S. 99 (1977), "BrownI7".

Significantly, however,both Brown

cases were decided prior to a recent Supreme Court case which drastically altered the underlying constitutional law relating to the federal government's ability to require states to legislate and expend funds. See Garcia v.San AntonioMetropolitanTransit Authority, 469U.S. 528 (1985) (holding that the federal government can require states to pay minimum wages and overtime pursuant to the Fair Labor Standards Act). If these issues under the Act were litigated again today, itis clear that BrownIwould be decided differently. Although BrownIIwas decided on statutory rather than constitutional grounds, the court specifically stated it wished to avoid reaching the constitutional issue. It is entirely speculative, however, what result a court wouldreach on the statutory issues in BrownIItoday, even in the absence ofthe underlying constitutional question. Further, these cases remain the governing law in the Ninth Circuit on EPA's authority under the Clean Air Act. Therefore, the extent ofEPA's authority to impose transportation control

measures in the Arizona FIP remains at best unclear.

EPA need not, however,resolve this difficult question oflegal authority at this time.Were EPA to decide nowthat

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it could lawfully require Arizona to legislate or expend funds as part of this FIP,EPA could adopt the necessary regulations before the projected attainment date ofDecember 31, 1991. However, itwould probably take EPA most ofthe eleven months remaining before that date to promulgate such regulations, in light ofthe fact thatEPA would need to first propose such

measures and would likely receive substantial comment on the question of its statutory and constitutional authority to require such measures and would need to respond to those comments prior to taking final action. Consequently, Arizona could not possibly adopt the necessary state or local measures to implement EPA's regulations prior to the December 31, 1991 attainment date. Thus, these measures would not advance the attainment date and therefore would not qualify as available

measures necessary toproduce attainment "as soon as possible" as required by the Delaneycourt. Screening Criteria

a. GeneralComment

Comment.ACLPI stated thatEPA's criteria for screening out TCMs create unjustified hurdles to adoption ofnew measures--hurdles that are directly contrary to the Act.

ACLPI also asserted that EPAhas offered no explanation whatsoever of why it believes the Agency lacks legal authority orresources or technical feasibility for implementation.

Response.The process used by EPA to screen measures for potential implementation is a reasonable method ofassuring that focus is placed on
measures that can and should be implemented. It does the public no good for EPA topursue measures which
cannot be implemented because the Agency lacks legal authority, lacks funds to implement, or whose implementation would not reduce emissions. The criteria were a reasoned exercise tojudge the appropriateness of control measures and do not constitute

an obstacle course intended to eliminate all potential controls. In fact, EPA identified sixteen candidate measures through the screening process (thirty percent ofall measures screened which it could potentially promulgate and implement ifthey were found tobe necessary to bring about attainment as

soon aspossible.

The criteria are also consistent with the Clean Air Act and EPA policy on SIP control measures. Neither Congress nor EPA wanted states to develop "paper" attainment demonstrations that depended upon measures which could not be implemented because there existed no legal authority, section 172(b)(10), or any realisticprospect of adequate funding for them, section 172(b)(7) and section 110(a)(2)(F). The

same standards apply to EPA when promulgating FIPmeasures under section 110(c).

Because of the number ofmeasures and the complexity ofthe issues involved,EPA only summarized the results ofthe screening in the NPRM and placed the detailed discussion ofeach

measure in the technical support documents located in the docket for this rulemaking. See "Technical Support Document for Mobile Source Control

measures. Arizona Federal Implementation Plan" (DocketNo. 1-2) and "Technical Support Document, Maricopa and Pima Nonattainment Areas, Federal Implementation Plan, Attainment and Maintenance Plans" (Docket No. 1-3). The fact that detailed information for each measure isin the TSD is stated at 55 FR 41204, 41212 (October 10, 1990. Copies of the TSD

were made available to thepublic at several locations in both Pima and Maricopa Counties as well as EPARegion 9and EPA-Washington. All locations were listed in theNPRM, see 55 FR 41204. Explanations ofwhy EPA believes it has questionable authority or lack resources orwhy EPA believes the

measure is not technically feasible are discussed for each measure in the TSD.
b.LegalAuthority

Comments.ACLPI statedthat EPA lists 23 control strategies as having "questionable" legal authority including

a number ofsection 108(f) measures, which are presumed tobe reasonably available, yet has failed to meet its burden ofdemonstrating that the

measures are unavailable on the ground oflack oflegal authority.

ACLPI also commented that EPA cannot reject any ofthe other measures identified in appendix A based on lack oflegal authority unless the Agency can identify a valid,articulable basis for concluding that legal authority doesnot exist.

Finally, ACLPI claimed that even if EPAhas somevalid concern about its legal authority to require these measures directly, it could indirectly prompt their adoption through use of the Agency's authority to terminate federal grant monies and impose other sanctions.

Response.Section 108(f)(1)(A) requires the Administrator, in conjunction with the Secretary of Transportation, to prepare and publish information on a list of18 transportation control measures (TCMs).The listing of

aTCM in section 108(f)(1)(A) does not bestow upon a measure any other special meaningunder the CAA. In fact, the designation ofthe TCMs in section 108(f) as presumptively "reasonably available control measures" was a policy decision on the part ofEPA and not a requirement ofthe CAA; therefore, the mere listing ofa measure in section 108(f) does not assure that EPA has legal authority forit. In addition, EPA's designation ofthe section 108(f) TCMs

as "reasonably available" is a presumption and is open to state (and thusEPA within a FIP rebuttal on a case-by-case basis. See 44 FR 20372, 20377 (April4, 1979) and 46 FR 7182, 7187 (January 22, 1981). EPA has rebutted the availability ofmost ofthe section 108(f) measures for the Maricopa FIP. Forno section 108(f) measure is the rebuttal based solely on legal authority grounds; rather, each rebuttal is based

on resource or technical feasibility grounds.

EPA agrees thatit could not reject any ofthe measures in the Appendix based

on lackof legal authority unless the Agency couldidentify a valid, articulable basis for concluding that legal authority does not exist.No

measures were rejected solely on legal grounds unless EPA was able to identify specific legal grounds. Ifa measure with questionable legal authority was rejected, itwas rejected based on grounds other than legal authority.

Finally, even ifEPAbelieved that use ofits sanction powers were appropriate in this situation, sanctions are not a control measure and at best do not

ensure a particular set ofcontrols will be adopted by the state. Even under sanctions, the state retains a wide degree oflatitude to impose controls that meetthe requirement ofthe CAA forexpeditious attainment.

c.Lack of Resources
Comment-: ACLPI asserted that the methodused by EPAto calculate the maximum resources for implementation ofa FIPin Maricopa County is irrational because It fails to take account ofvast differences in the severity of air pollution problems in different cities, and differences in theneed forEPA intervention and,in any event, EPA's obligation to comply with the Act and court order cannot be conditioned on the Agency's policy preferences on the distribution ofits resources.

ACLPI also claimed that EPA's reliance on the "lack ofresources" factor is applied in an arbitrary manner that discriminates against measures that would reduce total vehicle miles traveled (VMT) in favor of technical fixes.Therefore, EPA's reliance on this 5461

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factor is arbitrary,capricious, and entitled to no deference.

Response.ACLPI is correct thatEPA did not weigh its determination of the

resources available to implement a CO FIPfor Maricopa County with regard to either the severity ofthepollution problem (including the number of NAAQSs being violated, the peak concentrations experienced,orthe number ofviolations recorded)--a fact EPA points outin the NPRM-or the need for federal intervention. IfEPA had weighted its determination on these bases, the resources available for Maricopa would have been considerably less than the figures used.

Under the new CAA. Maricopa County is a moderate area forCO. Many

areas of the country are considered to have significantly worseCO pollution than Maricopa County. These areas include Los Angeles.New York, and Denver, all of which have larger populations,higher peak CO concentrations, and/orgreater numbers ofCO violations.In addition, allviolate

more than one NAAQS.

The Maricopa area and the State of Arizona have implemented oneof the best overall COcontrol strategies in the country. The'area has an oxygenated fuels program, one ofthe best inspection and maintenance programs inthe nation, and a travel reduction programmost ofwhich meet or exceed the requirements for moderate CO areas with Maricopa County's design value (12.6 ppm)to comply with the new Clean AirAct Amendments of1990. Few other CO nonattainment areashave programs that are as comprehensive oras effective; therefore, the need for federal intervention intheMaricopa area for CO attainment when compared to other nonattainment areas nationwide is relatively minor.

The distribution ofsection 105 grants is not based solely on policy choices of the Agency. The CleanAirAct constrains the distribution offunds. For example, section 105(b), which authorizes the distribution ofair pollution grants and is the largest source offederal funds for air quality programs, requires the Administrator, in establishing regulations forthegranting ofsection 105 grants, togive due consideration to (1)thepopulation, (2) theextent of the actual or potential air pollution problem, and (3) the financial need of the respective agencies. In addition, section 105(c) requires that no statereceive less thanone-halfofI percent ofall section 105 grants.

EPA disagrees that itarbitrarily applied the "lack ofresources" criterion. The resource factor eliminated most

measures which would reduce total VMT because these measures generally require large capital or operational expenditures which are funded by government (e.g., transit system expansion and carpool lanes construction). Because the Agency has limited funds, measures whichrequire large amounts ofEPA funds for implementation are generally unavailable to EPA. "Technological fixes" (e.g., fuel measures and I/M program enhancement improvements) generally shiftthe implementation burden to the manufacturer or car owner,the regulatory agency's costs are limited toenforcemenL This shift naturally makes these measures less costly and,therefore, more available to EPA.
d. TechnicalFeasibility

Comments.ACLPIargued that EPA had wronglylisted measures as being of unclear feasibility even though there can be "no serious question" ofthe technological availability ofmost ofthe

measures on EPA's list because almost all are either listed in section 108(f) of the CAA or have already been implemented in oneor more cities throughout thecountry.

ACLPI also claimed that the requirement that a measure "materially" reduce CO emissions to be considered feasible is atbest illegally vague and at worst a direct violation ofthe Act's requirement toadopt all reasonably available measures.

Response.ACLPI quotes only part of EPA's definition of "technically feasible." While EPA states In the NPRM that TCMs in CAA section 108[f)
are, by definition, generally considered to be technically feasible, it continues by stating that "[hiowever, the actual technical feasibilityofeach TCM must be considered in light ofthe current.and future transpbrtation system in Maricopa County to determine ifthe

measure could be implemented and would in factreduce CO emissions in Maricopa County." 55 FR 41204,41211 (October 10, 1990).

EPAagrees that many ofthe 55

measures it screened arelisted in CAA section 108(f) orthat many have already been implemented in one ormore cities in thecountry, but strongly disagrees with the assumption that this demonstrates the technical feasibility of

a measure forMaricopa County. The effectiveness ofeach section 108(f)TCM is dependent onthe transportation and land-use system within which it is implemented. For example, improvements in pedestrian amenities willbe much more effective atreducing trips in a city such as SanFrancisco with its high densities, short distances between activity centers, and limited. high-cost parking than theywill be in Phoenix with its low densities, long distances between activity centers, and plentiful, low-cost parking.As Cambridge Systematics, Inc.pointed out in its report "Improved AirQuality in Maricopa and Pima CountiesApplicability ofTransportation Control Measures" [November,1986), the

success ofa TCM canbe predicated on certain key factors characteristic ofan
area.These characteristics (which include trip length, employer size, and traffic parameters) can and do vary widely among cities.The fact that a

measure Is in section 108(fo orhas been implemented elsewhere is the starting point forevaluating the measure for Maricopa, butit is notthe end point that finds the measure is appropriate for Maricopa.

It should also be notedthat the Maricopa area has already implemented many ofthe measures on the list including several thatEPA has listed as having questionable technical feasibility such as park-and-ride lots, one-way streets, and on-street parking restrictions. Inreviewing measures already being implemented by the State and local governments, theAgency was interested in the incremental effect of EPA enhancing these measures. A finding ofquestionable ornegative technical feasibility forthese measures
was based onthebeliefthat EPAcould
not enhance the measure beyond its existing level, noton thebeliefthat the

measure is ineffective as Implemented in Maricopa County.

Finally, many ofthe section 1081

measures have long lead times for implementation. For example, transit improvements such asthe expansion of the bus fleet (which requires the purchase ofnew buses) can take well

over a year to implement. Given that the FIPprojects attainment in less than one year frompromulgation, many ofthe section 108(f) measures could notbe implemented prior to the attainment date and therefore not necessary for attainment as soon aspossible.

In themanner thatEPA used it in the NPRM, "materially" means a reasonable degree Ofcertainty that some level-no matter how slight--ofemission reductions will occur from implementation ofthe measure by EPA. EPA disagrees that the CAA requires implementation ofmeasures which do
not reduce emissions. Such measures would notbe considered either "reasonably available" or "available" to attain as soon aspossible.

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e. Socio-EconomicImpacts

Comments.ACLPI believed that EPA wrongly used the standard ofsocially or economically disruptive, draconian, and absurd to screen out measures and
states that the Agency did not identify which measures itrejected (beyond gas rationing) using this criterion. ACLPI also argued that the CAA does not allow EPA to reject control measures based on vague and undefined criteria such as "socially or economically disruptive, draconian, and absurd."

Response.EPA continues to believe that itwas not congressional intent to require absurd, socially or economically disruptive, or draconian measures. See the approval ofthe Maricopa SIP, 53FR 30224, 30233 (August 10, 1988), the ANPRM for South Coast, 53 FR 49494, 49509 (December 7, 1988), andDelaney

v.EPA, 898 F.2d at 692 citing EPA guidance in 44 FR 20375 (April4, 1979). ACLPI provides no reasons to lead EPA
toreconsider thisbelief. In fact, Congress required nonattainment plans
to include the identification and analysis ofthe air quality, health, welfare, economic, energy, and social effects ofthe plan provisions and of the alternatives considered by the state. See section 172(b)(9). This is a clear
statement that Congress intended that other factors beyond air quality be considered in developing a SIP and thus also a FIP.

EPA did not reject any measure on its list solely on the grounds ofeconomical

or social disruptiveness; however, these criteria, when added to the findings on other criteria, caused two measures, "mandatory no-drive-days" and "relocation ofmajor traffic generators,"

tobe deemed unavailable. EPA continues to believe that Congress did not intend to require implementation of such measures.

The definition of "socially or economically disruptive, draconian, and absurd" is not one that readily lends itselfto quantification; it is best defined by example. Examples include gasoline

or fuel rationing, directed source closures orrelocations, or mandatory widespread driving restrictions.

C.

FederalMeasures
As discussed above, EPA's evaluation ofpotential control measures indicated that just two measures, an oxygenated fuels program at 2.7 percent oxygen and

a wintertime gasoline volatility (RVP) limit of10 psi, when combined with existing State and local programs are sufficient to bring about attainment in Maricopa County by December 31, 1991. EPAproposed both these measures on October 10, 1990 and received considerable comment on them. See 55 FR 41204, 41213 fora discussion ofthe proposed oxygenated fuels program and 55FR 41204, 41220 fora discussion of the proposed RVP limit.

The Agency is today promulgating rules which will require that all gasoline sold in the Maricopa nonattainment

area during the winter months to contain aminimum oxygen content of 2.7 percent oxygen and to have a RVP level ofno more than 10 psi. Gasoline blended with ethanol at 2.7 percent oxygen and above is granted a RVP exemption of1psi. The rules being adopted today are essentially similar to those proposed last October although

some modifications were made in response to comments received on the proposal. A description ofeach
measure, a summary ofthe comments received, and the Agency's response to those comments are given below.

1. Oxygenated Fuels Program
Summaryof Final Rule

EPA is promulgating an oxygenated fuels program which will require that all gasoline sold in the Maricopa nonattainment area to contain a minimum oxygen content of2.7 percent by weight from October I to March 31 starting October 1, 1991. This action is being taken because oxygenated fuels

are a proven method for reducing CO emissions from motorvehicles. Also, because Arizona statute already mandates an oxygenated fuels program (at a minimum oxygen content of2.3 percent), the infrastructure for such a program currently exists in the Maricopa area. In essence, the federal
program will replace the existing State program by requiring a higher minimum oxygen content in gasoline (i.e., 2.7 percent versus the current 2.3 percent). In many material respects, however, the federal regulatory requirements mirror those ofthe displaced State program.

As proposed the oxygenated fuels program would have allowed gasoline suppliers to vary the oxygen content of their fuels so long as the sales-weighted
average oxygen content was 2.7 percent. The trading of "oxygen credits" to achieve the required average oxygen content would also have been allowed. In this final rulemaking, the Agency has chosen to require a minimum oxygen content standard of2.7 percent oxygen in lieu ofthe averaging and trading scheme discussed in the NPRM. primarily because ofthe limited time available to the Agency to promulgate this rule. EPA,however, continues to believe that an averaging program is highly desirable and workable. The new Clean Air Act Amendments require all CO nonattainment areas with

a design value of 9.5 or greater to implement an oxygenated fuels program requiring 2.7 percent oxygen by weight beginning in 1992. This requirement will include the Maricopa nonattainment

area; therefore, the oxygenated fuels rule in this FIPwill be in effect for only

one year before Arizona must submit regulations forthe CAA-required winter oxygenated fuels program.

As also required by the new CAA amendments, the Agency will promulgate by August 15, 1991, guidance

on the use ofmarketable oxygen credits from gasolines with oxygen contents higher than 2.7 percent by weight to offset the sale or use ofgasoline with a lower oxygen content.EPA believes that the additional time granted by the new CAA amendments will help assure the development ofan effective national averaging and trading program; therefore, under the very short timetable for this FIP,the minimum oxygen specification is the most desirable and workable option forthe Maricopa area currently. In 1991, there should be a choice of oxygenates in the Maricopa

area for the motoring public based on the Agency's decision regarding the blending tolerance for MTBE and the 1 psi RVP waiver for ethanol (both of which are discussed below). Arizona
must submit a SIP revision by mid-1992 which provides forthe national averaging and trading program within the Maricopa oxygenated fuels program.

The new oxygenated fuels requirement under this FIP becomes effective on October 1, 1991 until March 31, 1992 and each period ofOctober 1 to March 31 thereafter. The Agency does
not favor an earlier effective date due to possible negative effects on oxygenate price and supply and EPA's belief that it would not advance the attainment date.

EPArecognizes that, by setting the minimum oxygen content at 2.7 percent, it is in effect setting the minimum requirement at the highest legallypermissible concentration allowed in unleaded gasoline for the most common oxygenating compound. Specifically, methyl tertiary butyl ether (MTBE) is limited to a maximum of 15 percent by volume in unleaded gasoline (i.e., 3.7 percent oxygen by weight under ideal conditions) under section 211(f) of the CAA. The Agency, therefore, intends to exercise discretion in enforcing the maximum MTBE limit by allowing a blending tolerance ofup to 2.9 percent oxygen by weight. This will offset the negative effects ofdilution and density
upon the oxygen content ofgasoline blends during transportation. No such

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discretionary policy is specifically needed forthe other common oxygenate, ethanol, because this compound maybe legally blended at concentrations as high as 10 percent by volume (i.e., 3.7 percent oxygen byweight).

The regulations require that all gasoline pumps have labels which prominently display the type and maximum percent by volume of oxygenate in the final gasoline blend and contain a statement that the gasoline is oxygenated and will reduce carbon monoxide emissions from motor vehicles. (This latterrequirement is consistent with the new CAA requirements for winter oxygenate programs.) This provision is the similar
to Arizona's labeling requirement and is primarily intended to provide consumers with the information needed to make informed choices relative to the oxygenated gasoline used in their vehicles.

Today's action provides exemptions for certain off-road equipment such as airplanes and farm equipment from the oxygenated fuels program. Also included in the exemptions are fuels intended foruse at manufacturers' proving grounds and motorvehicle racing events. Again, thisprovision is patterned after the present State requirement.

In addition to these exemptions, EPA also intends to follow the present State regulation which requires fuel which is consumed ina motor vehicle operated by a fleet owner within the nonattainment area to contain not less than2.7 per cent oxygen by weight.

Finally, no changes were made to the
testprocedures for the determination of
oxygen level and they are being promulgated as proposed. Response to Comments

a. EffectiveDate

Proposal Summary.EPA proposed to implement the oxygenated fuels program

on October 1, 1991. The Agency also asked for comments regarding the possibility ofan earlier effective date.

Comments.The Renewable Fuels Association (RFA) stated that the incremental oxygenate demand associated with the proposed implementation date ofOctober 1, 1991 could easily be met by the ethanol industry. The Association also noted that adequate ethanol could be supplied
to meet an earlier start date, but the industry group was unware ifthe same held true for other types ofoxygenates, e.g., MTBE.

The Atlantic Richfield Company (ARCO), the major ethanol blender in Maricopa County, expressed concern over implementing theprogram earlier. Specifically, the company commented that gasoline suppliers have already established contracts for oxygenates this winter and must be given a reasonable amount oftime to negotiate additional oxygenate supplies at a reasonable price. ARCO further indicated that gasoline suppliers are already somewhat at the mercy ofthe oxygenate suppliers with respect to available supply, and that mandating additional oxygen ingasoline on a short
term basis could increase demand relative to supply.The company noted that this would substantially increase the costof incremental supplies not already negotiated.

No comments were received from MTBE blenders regarding the implementation date for the program.

Response.EPAdoes not anticipate that the proposed date ofOctober 1, 1991, would result in any supply problems based on the comments received and the Agency's prior experience with other oxygenated fuel programs around the country. Although the incremental oxygenate requirement associated withmoving from the current 2.3 percent requirement to the new 2.7 percent standard is not overwhelming in magnitude, the Agency wishes to ensure that enough leadtime isavailable for a smooth and efficient transition to the higher oxygen level.

In considering the feasibility ofan earlier date, EPA notes the lack of agreement between the only two commenters on this issue. The ethanol industry group, RFA. indicated adequate ethanol could be made available sooner. However, the largest blender ofethanol in Maricopa County, ARCO, expressed

concern regarding supply contracts.

It is also important to realize that there are practicality barriers associated with starting the oxygenated fuels
program immediately upon promulgation ofthis final rule. Assuming this Final Rule is promulgated at the end of January 1991 and becomes effective one month later (as required by 5 U.S.C. 553(d)), only one month would remain before March 31. 1991, the end ofthe
current winter COperiod in Maricopa County. This provides very little time for refiners, distributors, and retail outlets
to actually deliver gasoline with the requisite oxygen content to consumers and subsequently affect reductions in CO emissions. However, even if complying fuels were made available before the very end ofthe current winter period, the CO attainment date would
not be advanced.

Because EPA recognizes that an accelerated start date could have negative effects on price and supply and would not advance attainment, the Agency is promulgating an effective dateof October 1, 1991,as originally proposed.
b.AveragingOption

Proposal Summary.EPA proposed two compliance options for parties subject tothe oxygenatedfuels regulations: a minimum oxygen content of2.7 percent oran averaging and trading program with theoxygen content target of2.7 percent. The reasons for including an averaging and trading scheme were primarily market-based in that MTBE blends (currently allowable by waiver only up to 2.7 percent oxygen) would notbe locked out ofthe oxygenate market under such a scheme

as it could potentially be under a2.7 percent minimum requirement. As proposed, the compliance period for this averaging program would span 30 days, with all credits generated and traded or sold within that30-day period.

Comments.The comments received

were overwhelmingly against the proposed use ofan averaging scheme as
a means ofcomplying with the oxygen content standard.Many reasons were given including:

* Arizona already has a successful program in place using a minimum oxygen content;

* Onlyethanol blenders would be generating oxygen credits;

9 The activities ofcredit brokers and traders wouldgo unregulated;

* Labeling would be impossible under

an averaging scheme;

* A thirty-day averaging period would be too short,

- Ifolder cars were to receive the lower oxygenated fuels, the effect on emissions could be very detrimental.

Response.EPAbelieves an averaging program is highly desirable and workable; however,because ofthe adverse comment and the very short promulgation schedule forthis rule, the Agency is adopting a minimum oxygen content standard at thistime and delaying the adoption ofan averaging and trading program until it promulgates

a national averaging and trading program as required under the Clean Air ActAmendments of1990.

The new Clean Air ActAmendments willrequire that all COnon-attainment

areas with a design value of9.5 or greater adopt and implement in 1992 an oxygenated fuels programs requiring 2.7 percent oxygen on the average. Thenew Amendments alsorequire the Agency to promulgate by August 15, 1991, guidance

on the use ofmarketable oxygencredits in oxygenated fuel programs. The Agency believes that the additional time

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provided by the statutory schedule will help in the development ofan effective federal averaging and trading program. In 1992, the Maricopa non-atainment

area willbe subject to the CAA requirement for a 2.7 percent oxygenated fuels program complete with

an averaging program; therefore, the oxygenated fuels rulebeing promulgated today shall be in effect for onlyone year before it is superseded by the national program foraveraging and trading.

c.Minimum Oxygen Contentand BlendingTolerance

Proposal Summary.The issue of a blending tolerance was not specifically addressed in the proposal.

Commrents.Many commenters were concerned that the 2.7 percent minimum oxygen contentby weight would be impossible to meet through the use of MTBE without the opportunity to purchase oxygen credits. According to the Western States Petroleum Association, due to base fuel contamination and lack oftestprecision, the industry-accepted analytical tolerance foroxygen content in fuel is 0.2 percent. Thisview is shared by other commenters as well, including ARCO and Chevron, USA, Inc. ARCO took this observation one step further in their written comments and suggested that the FIP target oxygen content be lowered to 2.5 percent versus the proposed 2.7 percent, to allow for this testreproducibility.

Response.The Agency recognizes that by setting theminimum oxygen content at 2.7 percent,it is in effect setting the minimum requirement at the highest legally-permissible concentration allowed in unleaded gasoline forthe most common oxygenating compound, MTBE. Under a recently-issued revised interpretive rule on substantially similar fuels, fuels blended with MTBE may containup to 2.7 percent oxygen by weight,regardless oftheblend content necessary to achieve that measurement. EPAalso recognizes that through the effects ofdensity and dilution, the original blend oxygen content may decrease from the time ofproduction to the time ofdelivery at the retail outlet.

The Agency does not agree with the comments suggesting thatfuels which fall below the mandated 2.7 percent minimum be allowed to avoid penalty. Therefore, in orderto preserve the CO emission reductions which have been identified as necessary for the Maricopa non-attainment area,EPA intends to exercise discretion inenforcing the

- maximum MTBE limit by allowing a blending tolerance ofup to 2.9 percent oxygen by weight. Thisblending tolerance is necessary due to the negative effects of dilution and density

on oxygen content which occurwhen oxygenated blends are transported. In order to ensure that the gasoline offered for sale at retail outlets in the Maricopa nonattainment area meets the 2.7 percent minimum oxygen content requirement, the Agency is establishing

a blending tolerance for MTBEblends of 2.9 percent oxygen by weight. No such discretionary policy is specifically needed for theother common oxygenate, ethanol, because this compound may be legally blended at concentrations as high as 3.7 percent oxygen by weight (i.e., 10percent ethanol by volume).
d.Labeling

Proposal Summary.The NPRM called forpump stands to be labeled only with the type ofoxygenate contained in the blend.Invoices which accompany the fuel from its point oforigin would contain additional information concerning oxygenate content.

Comments.A number ofdifferent comments were received on the labeling issue.Most commenters called for a fairly simple requirement, e.g., labels containing information on oxygenate type and content by volume only. The parties who called for this option believe that any additional information, particularly the oxygen content ofthe blends by weight, is irrelevant and will

serve only to confuse consumers.

On the other hand, the Maricopa Association ofGovernments (MAC) believed that information on the oxygen contentby volume is necessary because ofautomobile manufacturer's warranties and the limitations they place on use of oxygenated fuels.

Response.In this final rule, EPA is calling forpump outlets to be labeled with oxygenate type and themaximum blend percentage ofthat oxygenate by volume (e.g., "This fuel contains up to 15% MTBE.") Labels shall also contain a statement that the gasoline is oxygenated and willreduce carbon monoxide emissions from motor vehicles. (Thislatter requirement is consistent with the new CAA requirements forwinter oxygenate programs.) Travel manifests and invoices will be required to also contain information on the type ofoxygenate, thepercentage ofthat oxygenate by volume, and the percentage of oxygen by weight contained in the blend.

As to the warranty question, it is improperfor manufacturers to fail to honor warranties based on the use by

consumers oflegal, EPA-waivered fuels. Once this FIP rulehas been promulgated, the Agency will inform vehicle manufacturers by letter ofthe new blending tolerance of2.9 percent oxygen forMTBE.

e.ExemptionforOff-HighwayMotor Vehicles

Proposal Summary.The proposed
program required all gasoline sold in the Maricopa County nonattainment area to comply with the oxygen content requirement. No exemptions for certain vehicles oruses were proposed.

Comments.The Arizona Department ofEnvironmental Quality (ADEQ commented that the State had found it desirable to exclude certain special. classes ofmotor vehicles from its oxygenated fuels program. The air pollution control agency stated that certain off-road equipment, airplanes, and other specified gasoline powered engines were exempt primarily due to technical feasibility concerns. ADEQ requested that a similar exemption be included inEPA's final rulemaking.

Response.It seems reasonable that EPA should grant this exemption. Much ofthe non-oxygenated fuel (e.g., aviation fuel) will be burned outside ofthe boundaries ofthe nonattainment area. For the non-oxygenated gasoline consumed within the area, the Agency believes that any air quality effect would be negligible because ofthe small
amount offuel involved. Also, the exemption appears appropriate from a technical perspective because at least

some ofthese sources may not be designed to burn or certified to operate

on oxygenated fuel. Therefore, the State's exemption provisions have been incorporated into today's action.

Specifically, the Agency will require the use ofoxygenated fuel, sold from October 1 through March 31 in the Maricopa County nonattainment area, forthe fueling ofmotor vehicles. The
term "motor vehicle" is defined as "any self-propelled vehicle designed for transporting persons orproperty on a street or highway," CAA section 216(2). Therefore, the use ofoxygenated fuel is
not mandated in off-road equipment such as fork lifts, construction and farm equipment, or other equipment, as long

as they are not primarily designed to be driven on highways. I

In addition to the above exemption provisions, EPA found that manufacturer's proving ground operations and motor vehicle racing
events were excluded form the State's oxygenated fuels requirement. Therefore, this Final Rule also exempts these operational categories. 5465

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2. Wintertime Gasoline Volatility Limit SummaryofFinal Rule
The Agency is promulgating a Reid
vapor pressure (RVP)limit of 10psi for all gasoline sold in the Maricopa nonattainment area during the wintertime. EPA's analysis showed that lowering the volatility of wintertime gasoline will provide significant emission benefits at temperatures associated with the CO exceedances in Maricopa County.

The effective date and the control period forthis requirement corresponds
to that described for the oxygenated fuels program. Specifically, compliance with the RVP limit begins on October 1. 1991 and ends on March 31, 1992, and each period ofOctober 1 to March 31 thereafter. The Agency does not believe

an earlier effective date is technically feasible.

EPAis granting an RVP exemption of

one (1)psi for ethanol blends with oxygen concentrations equal to or exceeding 2.7 percent by weight. (This represents approximately 7.3 percent ethanol by volume ingasoline.) The exemption will help ensure the continued availability ofethanol blends in the Maricopa area, maintain competition between oxygenates in the marketplace, and provide consumers with a choice ofoxygenated gasolines.

In addition, the Agency shall require fuel which is consumed in a motor vehicle operated by a fleet owner within the nonattainment area to comply with the gasoline volatility limit.

The Agency is granting a complete exemption from the wintertime RVP regulation to all manufacturer's proving grounds.
Response to Comments

a.EffectiveDate

Proposal Summary.EPA proposed to limit the RVP ofgasoline sold in the Maricopa County nonattainment area to

a maximum of10 psi during the winter months beginning on October 1, 1991. The Agency noted thatmost gasoline marketed in the region principally originated from refineries located in southern California and was transported by common carrier pipeline to the Phoenix bulk terminal for final distribution. No supply difficulties were anticipated, because the southern California refineries already ship special gasolines through the pipeline to comply with Arizona's existing oxygenated fuels
program.

Comments.Several ofthe oil companies expressed concern that controlling the RVP ofgasoline in Maricopa starting in 1991 might not be feasible without greatly complicating
current production, shipment, and distribution practices. The commenters specifically argued that the Los Angeles

area refineries and the pipeline distribution system are designed to handle the same "base" gasoline (e.g. gasoline at the same RVP). This currently results in essentially the same type ofgasoline being distributed throughout the combined marketing area ofthe southern California refineries. The distribution area generally includes Los Angeles, San Diego, southern Nevada, and Phoenix.If Phoenix were to receive

a different base fuel, then according to the commenters, this special gasoline would need to be separated from other fuels at the refineries, the pipeline, or both. The oil companies indicated that segregating a different base fuel for Maricopa County may require refiners and the pipeline company to build new storage tank facilities.

The commenters noted there was inadequate leadtime to design, secure permits for,and construct new facilities prior to the proposed implementation date ofOctober 1991, ifaddditional tankage indeed proved necessary. They suggested that two options existed under this scenario. First,EPA could provide additional leadtime forfacilities construction by delaying the effective date. Second, low volatility gasoline would be supplied to all areas within the refiners marketing area, including southern California and southern Nevada, at least as an interim measure. Some commenters also stated that any feasibility issues would be resolved by delaying the RVP standard until 1992. That date coincided with EPA's proposed requirement for 10-psi gasoline in the Los Angeles area as part ofthe South Coast FIPproposal, 55 FR 36458 (September 5, 1990).

Response.The Agency finds the oil industry comments inconclusive due to the lack ofsubstance. No details were provided to support.the industry claims. Furthermore, none ofthe commenters indicated that they either could not or would not supply a special low volatility gasoline to the Maricopa area in 1991 without affecting fuels supplied to other

areas. Rather, the comments indicated possible, not probable, adverse economic consequences ofa change in the RVP level ofgasoline inMaricopa County.

To better understand the technical issues involved, EPAundertook a limited investigation ofthe refinery storage and pipeline distribution system for southern California refineries. The Agency also relied on itspast experience in dealing with similar issues when developing the national summertime volatility rules.Based on the information currently available to EPA, it appears technically feasible to produce and distribute two different base gasolines.

EPA recognizes that some refineries and the pipeline already have experience in producing and distributing special oxygenated fuels for the Maricopa market. Presently, these oxygenated fuels must be segregated from othergasoline and then shipped to the Maricopa area. The required segregation may occur at the refinery or at another company's storage facilities through some type oflease agreement. The Agency feels that the ability to produce and segregate special oxygenated gasolines should generally apply to the RVP requirement as well. Furthermore, anyrefiner that finds it difficult or impossible to produce and
store separate low volatility gasolines
may enter into an intercompany agreement with another refiner to produce the necessary base gasoline. EPAunderstands that such agreements already exist within the industry in similar situations. For the pipeline operations in particular, the possible constraints appear to be more related to Increasing operational complexity, rather than any clear substantial technical limitation. This isnot to suggest that supplying Maricopa County with a special low volatility gasoline
may not be difficult in atleast some instances. However, the Agency believes most,ifnot all, ofthe refineries and the pipeline company have the capability to accommodate two different types ofbase gasoline within the existing capacity and operating practice ofthe industry.

To te extent that it is infeasible to provide Maricopa County with a special fuel, other areas supplied by the affected refiners may receive the same low volatility gasoline. The Agency understands that this broader coverage would lead to an increase in cost,but this cost would bejustified by the emissions benefit gained in these areas. In addition, this situation should only

occur until refiners construct any additional storage facilities as they deem necessary.

Therefore, after carefully considering the comments on this issue,EPA is promulgating the October 1, 1991 effective date for the wintertime RVP limit as originally proposed.

b. Control Period Proposal Summary.The proposed RVP control period was October 1 through March 31 of each year..

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Comments. Some ofthe oil companies stated that the winter volatility control

season for the Maricopa County nonattainment area (i.e., October 1 through March 31) should correspond with the winter volatility control season in the proposed South Coast FIP (November 1through March 31), in order
to minimize adverse economic/supply effects. They also suggested that both the Arizona and South Coast winter volatility control seasons be reduced to four months.

Response.The Agency currently believes thatlow volatility gasoline is necessary in Maricopa County for the entire six month period, as proposed, In order to attain compliance. Beyond askingfor a shorter compliance period,

no commenters indicated that RVP control was not necessary during this period. In addition, EPAreminds the commenters that the emission control requirements ofArizona are not necessarily related to the air quality needs ofsouthern California. Finally, EPA will shortly be withdrawing its proposed SouthCoast FIP. The district
court order requiring the promulgation of this FIPhas recently been vacated.

Nonetheless, EPA's review ofthe pipeline distribution system also revealed that thepipeline, which supplies Arizona along with parts of southern California, currently accepts

on 10 psiRVP gasoline for transport during October and March as a result of the pipeline company's compliance strategy with the current summertime volatility standards. Therefore, forall practical purposes, it appears Arizona already receives 10psi gasolines in October and March even in the absence ofa regulatory requirement. Ofcourse, the Agency cannot rely on the pipeline company's internal operating standards in the future, so EPA is establishing the winter volatility control period as a regulatory requirement.

c.Ethanol R VPExemption Proposal Summary.Oxygenated fuels

are made by adding either alcohol (e.g., ethanol) orether compounds to typical gasoline. The use ofalcohol increases the volatility of thefinal oxygenated blend beyond that ofthe base gasoline. This results inan RVP boost of approximately 0.8 psi under the conditions oftheproposal. Ether blending agents have no significant effect on this fuel characteristic. The higher RVP ofethanol blends acts in the opposite direction ofthe oxygen content in reducing CO emissions. Therefore, ethanol and etherblends with the same oxygen content will exhibit different clean air potentials. The Agency discussed the loss ofair qualitybenefits in the proposal which could occurunder an averaging program ifthe market share ofethanol blends in Maricopa Countywas large. However, EPA concluded that such a situation

wasunlikely and that thepotential adverse air quality effect ofethanol blends with somewhat higher volatilities could be tolerated in the attainment demonstration. Based on these considerations, the Agency proposed to provide a 1psi RVP allowance from the otherwise applicable wintertime RVP standard forethanol blends of3.5 percent oxygen and above by weight (9 percent ethanol and above by volume).

Comments.The only negative comment on the proposed RVP exemption came fromTexaco. The company stated that the exemption should notbe provided. Texaco also noted thatifthe exemption were granted, it should be allowed only for full ethanol blends, as proposed (i.e., 3.5 percentby weight]. No explanation for these positions were provided.

The remaining commenters, ARCO and RFA. supported the exemption. However, they asked fora modification which would provide the exemption for ethanol blends meeting the minimum required oxygen content of 2.7 percent by weight. The commenters suggested that without this change, the economic disparity between ethanol blends with 3.5 percent oxygen and etherblends with 2.7 percent oxygen may result in the elimination ofethanol from the marketplace. RFA also argued that the lower concentration would continue to satisfy what it portrayed EPA's express goalwhereby fuels containing trace amounts ofalcohol are not eligiblefor the exemption. The industry group concluded by noting that ethanol blends containing either 2.7 percent oxygen or 3.5 percent oxygen have the same absolute effect onRVP. Therefore, RFA suggested there isno real difference between the fuels in this regard.

Response.In evaluating the appropriateness ofproviding an RVP exemption for ethanolblends, EPA believes the most important considerations involve the potential effects on air quality, availability and competition between oxygenates, and enforcement. The Agency has reevaluated the emissions impact of providing the RVP exemption for ethanol blends containing 2.7 percent oxygen in the absence ofthe averaging option. (Noaveraging option is contained in today's Final Rule.) The analysis also shows that granting the RVP exemption at 2.7 percent oxygen
can be accommodated in the attainment demonstration. Therefore, from an air qualityperspective, the previous conclusion regarding the acceptability of the exemption is unchanged.

Regarding the availability of oxygenates, EPA has repeatedly stated the desirability ofproviding consumers with a choice ofoxygenated fuels. Maintaining this feature ofthe current State program was underscored in
comments from the ADEQ. If the increased cost ofhaving toblend ethanol at a level of 3.5 percent oxygen Is prohibitive, as suggested by ARCO, then this choice will notbe available. While EPA is unable to determine ifthis would indeed occur as a consequence of promulgating the exemption as proposed, neither is the Agency able to dismiss this as alikely outcome. Nonetheless, granting the exemption for ethanol blends meeting the minimum oxygen content standard of2.7 percent by weightwill obviously do the most to

ensure a continued choice ofoxygenates in the Maricopa market.

Turning to the issue ofenforcement, EPAindicated in theproposal that the RVP exemption was patterned after a similarprovision forethanol blends in the national summertime RVP standards. In fashioning the summertime exemption, EPA explained that requiring high levels ofethanol would aid enforcement activities by assuring that fuel containing only trace amounts of alcohol didnot qualify forthis special treatment. TheAgency agrees with RFA that lowering the minimum required oxygen content from 3.5 percent (9 percent ethanol byvolume) to 2.7 percent (7.3 percent ethanol by volume) is adequate as an enforcement tool.

For the above reasons, the Agency is allowing a Ipsi exemption from the wintertime RVP standard for oxygenated gasoline containing 7.3 percent ethanol byvolume (i.e., 2.7 percentby weight).
d.RVP Control Effectiveness Proposal Summary.EPAproposed a 10 psi maximum RVP in all fuel sold duringthe mandate periodin conjunction witha 2.7 percent oxygen content. This combination was shown in modeling to be adequate for CO attainment under the 530 Fahrenheit design day condition. In theproposal, EPArequested comments on the adequacy ofthe RVP control measures at temperatures inthe range of40*to 70 0 F. Comments.One oil company (ARCO) claimed that the net effect on CO emissions in going from 13 to 10 psi RVP is negligible in fuels containing high levels ofoxygenates. Graphical data 5467

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from a recent but unpublished American Petroleum Institute (API) study was presented forten late model vehicles tested at 35, 55, and 80 °F on 9.0, 10.5, and 13psi gasoline and 9.0 and 13psi gasoline blended with 15 percent MTBE by volume. These blend data indicated equal average COemissions at 9.0 psi and 13 psi at 55 °F, and greater average CO at 9.0 psi than 13 psi at 35 °F.The blends were not tested at an intermediate RVP such as proposedi 10.0 psi,even though the 55 OF gasoline data showed lower CO at 10.5 psi than at either 13 or 9.0 psi RVP.

Response.The CO benefits in the proposed FIP strategy are based on (1) the COversus oxygen relationship detailed in the EPA document "Guidance on Estimating MotorVehicle Emission Reductions From the Use of Alternative Fuels and Fuel Blends," Uanuary 1988) and (2)the COversus RVP relationship used in EPA's MOBILE4 emission factor model as detailed in Chapter 8 ofthe MOBILE4 supporting documentation. The effects ofoxygen listed in the Guidance Document were based on testing at the standard Federal Test Procedure(FTP) temperature of75 °F.The effects ofRVP

on CO were based on testing of9.0 psi and 11.7 psi non-oxygenated gasolines in 16 cars at 50 °F compared to these and many othercars tested on these fuels at 75 °F.

EPA has reviewed the additional test data on the effects of oxygen and RVP at temperatures below 75 °Fprovided by commenters. While these data offer

some indication that the FIPbenefit assumptions might be overstated, they

are not considered substantial enough the warrant altering the estimates from the earlier data. For instance, the unpublished API study referred to in the ARCO comments leaves open the possibility that 10 psi RVP oxygenate blends could still decrease CO emissions relative to the same blends at 13 psi. This information, however,does provide an incentive for EPA (and others) to investigate these relationships

more fully in the future, and modifications toEPA's emission factor model based on any such data would not be ruled out.

The modeling analysis for the attainment demonstation was based on
an average ambient temperature of 53 OF,which actually corresponded to the temperature which occurred on the day with the highest adjusted CO concentration rather than the design day (which had the secondhighest adjusted CO concentration). Over the time period when the 11.2 ppm design concentration was measured the average temperature
was 58.8 °F.

Therefore, the estimates ofthe benefits of the RVP limit were potentially understated in the attainment demonstration. Furthermore. the high concentrations in the Phoenix

area occur in the evening hours and build up over time.The time ofpeak traffic volumes and slower speeds

occurs during warmer conditions when RVP controls would have the most benefit. Therefore, using the average temperature over an eight hour time periodpotentially underestimates the benefit ofreduced RVP on the ambient COconcentrations in Phoenix. The Agency was concerned with taking too muchemission reduction benefit for RVP controls, and therefore chose to make a number ofconservative assumptions for this phase ofthe modeling analysis.

e.Driveability andSafety Proposal Summary.In the proposal, EPA noted that under certain ambient conditions (e.g., cooler temperatures), low volatility fuels may adversely effect vehicle driveability and safety.The Agency also noted that some ofthe wintertime gasolines being marketed in Arizona were already at or near the proposed 10 psi RVP limit.Nonetheless, EPAfully evaluated this issue for the local conditions occurring in and around the Maricopa area, and concluded that low volatility gasoline would not adversely affect either operating condition during the winter season. Comments were specifically requested

on thepotential use ofthese fuels in colder areas ofthe State.

Comments.Four general comments
were received regarding thepotential

use oflow RVP gasolines. Three commenters simply asked EPA to further investigate the possibility of adverse driveability and safety effects. The remaining commenter, ARCO, anticipated that the combination of oxygenated fuels and low RVP may
cause driveability problems. However, the company added that it lacked data demonstrating this possibility might actually occur.

Response.Thelack of specific comments on thisissue make it difficult tojudgewhether driveability and safety

are realconcerns, or whether the commenters were simply responding to EPA's statement that adverse effects might be possible under certain conditions. Nevertheless, the Agency has continued to investigate these matters as part oftoday's Final Rule. The Agency's analysis focused on the potential use of10psi RVP gasolines in colder areas of the State, since none of the commenters specifically questioned the adequacy ofthe previous analysis forthe Maricopa area, or the validity of EPA's conclusions.As willbe seen in the following discussion, there doesnot appear tobe an unacceptable riskfrom thepotential use ofthese fuels under colder ambient conditions.

From a practical perspective, perhaps the best guage of acceptable driveability and safety is in-use experience based oni
current operating practice. Accordingly, EPA evaluated the quality ofgasoline that is currently being marketed in the colder,northern areas ofArizona. The analysis used Flagstaffas a reasonable example ofsuch an area because: (1) This city experiences some ofthe coldest wintertime temperatures in the State, (2)historical temperature data are readily available, (3)most ofthe gasoline used in this region presently originates from the Phoenix bulk terminal, and (4)Flagstaffis within reasonable driving distance ofPhoenix (i.e., about 130 miles).

To evaluate current marketing practices in Flagstaff,the Agency obtained gasoline volatility survey results from the Arizona Department of Weights and Measures (ADWM) and the Motor Vehicle Manufacturers Association (MVMA). The surveys suggest that it may be reasonably

common for some gasolines in Flagstaff to benear, orin some cases below, the proposed standard of10 psi during the coldest months of the year. Ifthese fuels

were causing unacceptable driveability

or safety problems, the Agency would expect to find some evidence ofsuch
events in the public record. However, despite the existence oflow volatility fuels in the area, no commenters submitted documentation indicating that

consumer dissatisfaction or safety hazards exist. Nor were any comments received that cited anecdotal evidence of such occurrences.

As additional in-use guidance, the Agency compared the true vapor pressure (TVP) ofgasoline sold in Flagstaff during extremely cold temperatures, with those marketed in other parts ofthe country under similar conditions. (EPA originally used this methodology in the national Phase II RVP rulemaking to evaluate the feasibility ofreduced volatility fuel in the summertime.) The comparison revealed that the TVP of"controlled" gasoline (10RVP gasoline) inFlagstaff under extreme climatic conditions was generally equivalent to the minimum TVP forother areas of the country. Therefore, gasolines with volatility levels similar to the controlled level of 10psi RPV are already beingmarketed

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in colder areas ofArizona and appear to be no worse than gasolines sold elsewhere ofthe country. Based on this information, EPA concludes that the requirement for low RVP fuels in the Maricopa County nonattainment area should not represent an unacceptable level ofdriveability or safety risk even in colder areas ofthe State.

If ARCO or othergasoline suppliers anticipate that driveability with controlled gasolines may be unacceptable, EPA notes that several alternatives exist forproviding higher volatility fuels in areas outside ofthe Maricopa County nonattainment area. First, it is perfectly legal to import higher volatility gasolines into the Phoenix bulk terminal that are destined for attainment

areas. Ofcourse, such higher RVP fuels would need to be segregated from the controlled gasolines. Ifinadequate storage exists to fulfill individual needs, suppliers may find it possible to enter i:to a cooperative agreement whereby

one corporation leases storage tank
space to other interested parties. This practice already occurs to some degree in the Phoenix bulk terminal.

Second, suppliers could add small volumes ofoxygenate to otherwise low RVP gasoline to increase the volatility of the final blend. Even small amounts of ethanol provide an RVP increase of0.8 psi, and EPA approved methanol/ cosolvent mixtures can boost RVP by about 2 psi. Ifadditional storage capacity for the oxygenates is required, it appears feasible to build such facilities by October 1991, based on comments EPA received from the ethanol industry in response to the 1988 FIPproposal.

Third, and finally, outlying areas can obtain fuel from sources other than the Phoenix bulk terminal. As noted in the TSD, gasolines destined for the Las Vegas bulk terminal should be unaffected by today's action. Areas such

as Flagstaff already receive some fuel from Las Vegas and, therefore, could conceivably receive all gasoline supplies from this location ifnecessary. Gasoline could also be transported by truck from refineries located in New Mexico and Texas. These alternatives could increase the price ofgasoline forthe affected

areas, although the effect should be relatively small.

If any ofthe aforementioned options

are implemented, the only vehicles that by necessity may be operating with low volatility oxygenated gasoline in colder

areas ofthe State are those driven from Phoenix to such final destinations. As described above, thisis similar to the present in-use situation, because gasolines with RVPs at or near the controlled level of10 psi are already being marketed in the Maricopa area. Therefore, although requiring all gasolines in the Maricopa County nonattainment area to comply with the RVP standard of 10.0psi will increase the number ofcommuting vehicles using such fuel, it will not fundamentally change existing operating practices that have proven acceptable in thepast. 

### f.Exemptions

Based on ADEQ's comments concerning exemptions under the oxygenated fuels program, the Agency believes that it isreasonable to provide

an exemption from the volatility control program formanufacturer's proving ground operations. The agency recognizes the necessity to provide reasonable testing flexibility for these operators. 3.Cost ofthe Promulgated Control Measures

EPA estimates that the increase from 2.3 to 2.7 percent oxygen content will resultin a 0.8 cents per gallon increase in the price ofgasoline. The estimate is based on a 5.0 cents per gallonincrease in theprice ofgasoline for a 2.7 percent oxygen-content program in an area with

no existing oxygenated fuels program used in the analysis by the Council of Economic Advisors ofthe oxygenated fuels program in the new Clean Air Act Amendments. Using an alternative analysis based on spot market prices of MTBE and gasoline as ofAugust 29, 1990, theprice increase would be 0.66 cent per gallon. Based on expected 1991 gasoline consumption during the oxygenated fuels season of475.3 million gallons in the Maricopa County nonattainment area and a 0.8 cent per gallon price increase, the incremental cost of the program during the first year should be $3.8 million. Factors which might lower this cost in the future include the expansion inthe production ofMTBE and a trend toward more cost-efficient refinery blending of oxygenates.

EPA estimates that the limit on gasoline volatility would cost about0.27 centsper gallon for each 1psi reduction in RVP. This number takes into account both the increase in the cost of producing lower RVPgasoline and the savings infuel economy associated with thisfuel. Based on an average RVP of 11.2 psi observed during the 1989/90 oxygenated fuels season, the net increase in the price ofgasoline as a result ofthe RVP control program would be0.324 cents per gallon. Using the Maricopa Countygasoline consumption figure given about, the incremental cost ofthe RVPcontrol program during the first year should be$1.5 million. EPA received no comments on the above analysis. Several commenters did raise the issue ofcosts but in direct connection with a testing requirement needed to demonstrate compliance under an averaging program. Because the Agency is not today promulgating an average program, the comments are not relevant to this final rulemaking.
4. Federal Pre-Emption ofArizona's Oxygenated Fuels and RVP Control Programs

EPA understands that by implementing the oxygenated fuels and volatility programs it is creating standards which are more stringent than the existing State standards. Under CAA section 116, "...ifan emission standard or limitation is in effect under

an applicable implementation plan..., [a] state or political subdivision may not adopt or enforce any emission standard

or limitation which is less stringent than the standard or limitation under such plan or section." The existing State standards will become less stringent than the standards in the federal oxygenated fuels andRVP limitrules which EPA Is promulgating today as partofthe applicable implementation plan forthe Maricopa nonattainment

area. EPA, therefore, recognizes that these federal rules will have the effect of pre-empting existing Stateregulations when these rules become effective on October 1, 1991.

EPAwishes to make it clear that it willhonor any Stateregulations which, when approved by the State legislature, adopt any ofthe new federal standards

so long as the State regulations are not less stringent than those in the federal plan. Once new State standards have been established and approved as part ofthe SIP,EPA welcomes the return of State and local enforcement.

D.AttainmentandMaintenance Demonstrations

The two measures being promulgated today, a 10-psi RVP limit and an increase in the oxygen content offuels from 2.3 percent to 2.7 percent, combined with the existing SIP

measures including the Maricopa travel reduction program (TRP), willprovide sufficient emission reductions to reduce the ambient CO concentration in Maricopa County to the level ofthe NAAQS by the end of1991. Noother combinations ofpotentially available

measures could advance the attainment date further.

As discussed in the NPRM, the design value upon which this analysis is based is an adjusted monitored value and, therefore, reflects the impact ofall 

### 5469

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control measures in place the day the design value was recorded. InMaricopa County in mid-December, 1989, the oxygenated fuelsprogram was operating
at2.3 percent oxygen, the majority ofthe TCMs which EPA credited in the 1987 MAG plan were inplace, and the voluntary no drive day program (the Clean Air Campaign) was operating. Because the design value reflects the impact ofall these programs, the attainment demonstration implicitly includes the benefits ofthese programs.

There are only three measures for which EPAgranted emission reduction credit inits 1988 Maricopa SIP approval that still canbe explicitly included in this attainment demonstration as additional measures beyond those included in the design value: the TRP (starting in 1990). HOV lanes, and freeway flowimprovements (both starting in 1995). For simplicity and since attainment will occur by late 1991, the attainment demonstration inTable I considers only the TRP. HOV lanes and freeway flow improvements, therefore will provide additional reductions after 1995 toensure maintenance.

TABLE 1.-PROJECTED CONTROLLED CO

EMISSIONS AND CONCENTRATIONS IN MARICOPA COUNTY

Total DctroUed CO eissions' I octa (Mg) ton ippm)

December. 1989.... 316 13 December,1990.... 261 10 Deoember, 1991

..... 233 9 December, 1992 231 9 December, 1995

.......... 193 8 December. 2001..., 202 8

1Total emissions between 3 p.m. and 5 a.m. inreang enssions after 1995 reflect increased VMT.

Table I shows that emissions levels and ambient concentrations will be reduced sufficiently in Maricopa County
to attain the CO NAAQS of9 ppm in late 1991 and maintain that standard until after 2001. Under EPA regulation and policy, an approvable implementation planmust demonstrate maintenance for the ten-yearperiod after plan approval. The proposed 10psi RVP limit and 2.7 percent oxygenated fuels program, combined with reductions from the travel reduction
program and other SIPmeasures, are sufficient to demonstrate maintenance for the required ten years.

Comments received by EPAon the attainment demonstration generally addressed inconsistencies between figures in the NPRM and the TSD. These inconsistencies were mainly due to transcription errors and have been corrected. They donot affect the results ofthe attainment demonstration. The balance ofthecomments on the attainment demonstration related to the effectiveness oftheRVP rule.These comments areaddressed inthe discussion oftheRVP rule.
V. Attainment andMaintenance ofthe
CO NAAQS in Pima County

For theproposal, EPA reviewed recent ambient air quality data for Pima County, the 1987 Pima plan, andnew population andvehicle milestraveled (VMT)projections for Pima County. Monitored ambient air quality data show that the area has not exceeded the CONAAQS in the last two years. The 1987 Pima plan projected attainment of the CO NAAQS inearly 1990 and maintenance through 2000 relying solely

on emission reductions from the federal
motor vehicle control program (FMVCP), the State I/M program without the loaded-mode component, existing traffic flow improvements, andprogrammed road improvements. The Pima plan did
notrely, for either attainment or maintenance, upon any ofthe additional

measuresbeing proposed In theplan (e.g., the travel reductionprogram) or lateradopted bythe State legislature (e.g., the loaded-mode I/M program and theoxygenated fuels program). Finally,

new population and VMT forecasts for the Pima area have recently been completed and arepredicting substantially less growth in 1990 and future years thanwas assumed in the 1987 Pimaplan.

Combined, these three factors argue strongly that the 1987 Pima plan accurately predicted that attainment wouldoccur in or before early 1990. Therefore, EPAconcludes today that sufficient emissionreductions have already been achieved in Pima County to assure that current CO emission levels are below those needed to attain the CONAAQS and that no additional federal measures are needed to ensure attainment.

EPAperformed hot-spot modeling using the approved hot-spotmodel, CAL3QHC, to determine if sufficient

measures were in place toensure maintenance in Pima County for the required ten-year period after plan promulgation, i.e., untilearly 2001. This hot-spot modeling showed thatwith the existing control strategy that ambient COconcentrations for thenext tenyears willbe well below the CO NAAQS even under "worst-case" meteorological conditions. EPA, therefore, finds that no additional controls are necessary for maintenance inPima County. More detailed information on the CAL3QHC modeling can be found in the TSD for this notice.

EPA received no comments disputing its proposed conclusion that no additional federal measures were needed to either attain ormaintain forat least 10 years the CO NAAQS in Pima County. Minor comments on the modeling were given by the Pima County Department ofEnvironmental Quality at the public hearing. These comments, which arefully addressed in the TSD, donot affect EPA's conclusion that sufficient measures arein place in Pima County to ensure maintenance for the required ten-year period.

VI. Contingency Provisions

EPA's guidance requires SIPs to contain a two-part contingency plan: a listoftransportation projects that would bedelayed while an inadequate SIP is beingrevised and aprocess to adopt

measures to compensate for unanticipated emission reduction shortfalls. Both parts are triggered when theEPA Administrator determines that

a SIP is inadequate and additional emission reductions are necessary. See 48 FR 7187, 7192 (January22, 1981). 4

To assure that the contingency procedures in the Maricopa and Pima implementation plans comply with Agency guidance, EPAis today promulgating contingency procedures that will ensure that any emission reduction shortfalls which may occur during the ten-year period covered by this FIP areidentified and corrected. For

reasons discussed in the NPRM. the Agency will use a certified violation of the CONAAQS occurring after December 31, 1991 in Maricopa County

or after January 28, 1991 in Pima County

as the initial trigger forits contingency process. A certified violation not caused by an exceptional event (as defined by EPA guideline) would then trigger a determination by the Agency ofwhether additional control measures are necessary to assure maintenance ofthe

4 The Clean Air Act Amendments of1990 require SIPs in general "to provide for the implementation of specific measures to be undertaken if an area fails to make reasonablefurther progress, orto attain the [NAAQS] by the attainmentdate applicable under [Part DI

. . . [sluchmeasures shall be included in the plan revision ascontingency

measures to take effect in any such case without further action by the State orthe Administrator." See new section 172(c)(9). This requirement is substantially different from EPA's pre-amendment policy forcontingency procedures quoted in the main text. Bothbecause of the timing of rulemaking (the proposal was published prior to the passage of the amendments) and becausethe Ninth Circuit specificallycited EPA's pre-amendment contingency requirements as the missing element in theAxizona SIPs, EPA ispromulgating contingency procedures which comply with its pre-amendment policy.

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CO standard. Upon a finding by the Agency that additional measures are necessary, theprocess to identify, propose, and promulgate such measures would be triggered as would the requirement to delay highway projects. The finding by EPA that additional

measures are necessary constitutes the finding by theAdministrator that the implementation plan is inadequate; a violation ofthe CONAAQS does not by itselfconstitute a finding that the SIPis inadequate.
A. Contingency Procedures
1.Response to Comments

Comments. Onlythe Arizona Center for Law in the Public Interest {ACLPI) commented on the contingency procedures. ACLPIcommented that the contingency process is "far too complex and protracted to comport with the Act" and that EPA should adopt a simpler, quicker process which requires the state and local agencies to report CO violations immediately and thisreport shouldtrigger the delay ofthe listed transportation projects and aFIP revision (tobe completed within 180 days).

Response.In developing the contingency procedures, the Agency followed its 1982 SIPguidance. Under the guidance, the contingency process is to be initiated "when the Administrator determines thata SIPis inadequate to attain NAAQSs and thatadditional emission reductionsareneeded."46 FR 7182, 7187 (January 22, 1981), emphasis added. A violation ofthe CO NAAQS after theprojected date ofattainment is

an indication that the SIPmaybe inadequate, not that the SIP is inadequate. There are a number of

reasons why a violation may occur after theprojected date ofattainment, not all ofwhich indicate an inadequate SIP. Rather than presumptively finding that a violation equals an inadequate SIP as ACLPI suggested, EPA's contingency procedure reasonably allows time for the SIP to bereviewed before a determination ofadequacy ismade. Only when the Administrator finds that the SIP is inadequate to maintain the NAAQS and that additional emission reductions are needed (the trigger for contingency inthe 1982 SIPguidance] does the contingency procedures proceed. The process then gives the Agency ten months to propose and promulgate additional control measures. A ten-month promulgation schedule is expeditious yet still allows an adequate period forpublic comment. It should be noted that EPA's 1982 SIP guidance does not give a time frame in which the contingency process mustbe completed. In response to comments on the list of highway projects subject to delay, the Agency has amended the contingency procedure to add a process to update the list oftransportation projects subject to delay should the contingency process be triggered.

The procedure was also clarified so that the schedule for actions refers to signature by the EPA Administrator on the Federal Register package rather than actual publication in the Federal Register. Finally, the procedure was modified so that a violation at any monitor rather than justmonitors within

an EPA-certified network would be used

as the initial trigger forthe contingency
process as long as the monitor was sited and operated according to EPA monitoring guidelines. This latter modification will allow the use of monitoring data from special-purpose monitors which are normally not considered part of an EPA-certified network.

2. Contingency Procedures FindingofCO NAAQS Violation
After December 31, 1991 forthe Maricopa CO nonattainment area or after January 28, 1991 forthe Pima CO nonattainment area, should the nonattainment area experience a violation of the CO NAAQS during a CO

season (October 1 through March 31) at

a monitoring site that is sited and operated according to EPA monitoring guidelines, EPA shall first verify the monitoring data. Upon verification that the violation was not due to an exceptional event as defined in The Guidelineon the IdentificationandUse of

AirQualityDataAffectedby ExceptionalEvents, EPA-450/4--86-007, July 1987, the Agency shall make the finding that the area has exceeded the CO NAAQS and, therefore, the implementation plan may be inadequate. Within two months ofthe end ofthe quarter in which the violation occurred, the EPA Administrator or his designee shall sign an initial notice of proposed rulemaking (NPRM) laying out this finding and requesting information from the appropriate state and local agencies and the public to determine the

cause ofthe violation and potential corrective actions. EPA shall provide 30 days for public comment on the initial NPRM.

EPA shall also review the most current transportation improvement program (TIP) from the area experiencing the violation. Based on its review of the TIP, the Agency shall propose and request comments on appropriate changes to the list of highway projects subject to delay under these contingency procedures as part of the initial NPRM.

DeterminationoftheNeed for AdditionalMeasures

After making a finding that a CO violation has occurred, the Agency shall determine the cause ofthe violation by determining the implementation status ofthe plan control strategy and by comparing the current emissions inventory to the planprojections. EPA shall work with the appropriate State and local agencies in making this determination.

(a) Ifincomplete implementation or non-implementation ofplan measures or unanticipated growth have increased emissions above the level needed to maintain the standards, the Agency shall determine the shortfall in CO emission reductions and whether additional control measures are necessary to correct this shortfall after the time EPA could reasonably promulgate these additional measures, and the Administrator shall sign within
two months ofpublication ofthe initial NPRM, a notice offinal rulemaking (NFRM). Should the Agency find that additional control measures are necessary, this NFRM shall contain EPA's finding on the need for additional

measures and the final list ofhighway projects subject to delay and shall initiate the delay oftransportation projects. Should the Agency find that no additional measures are needed, the NFRM shall contain this finding and conclude the contingency process.

(b) Ifemission levels are found to be
at orbelow those projected as needed for maintenance, the Agency shall perform the air quality modeling
necessary to determine a newlevel of emission reductions needed tomaintain. The Agency shall determine the shortfall in CO emission reductions and whether additional control measures are necessary to correct this shortfall after the time EPA could reasonably promulgate these additional measures, and the Administrator shall sign within f9ur months ofpublication ofthe initial NPRM a notice offinal rulemaking (NFRM). Should the Agency find that additional control measures are necessary, this NFRM shall contain EPA's finding on the need for additional

measures and the final list ofhighway projects subject to delay and shall initiate the delay oftransportation projects. Should the Agency find that no additional measures are needed, the NFRM shall contain this finding and conclude the contingency process. 5471

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ProjectDelay

Final notification by EPA In the Federal Register that additional control

measures are necessary tomaintain the CONAAQS in either Maricopa County

or Pima County shall triggerthe requirement to delay projects on the list ofprojects withpotentially adverse air quality impacts appearing below or as updated by the Agency through notice and comment rulemaking. Under Department ofTransportation (DOT) regulations at 23 CFR 770.9(e)(2), the Federal HighwayAdministration (FHWA) shall not authorize construction ofany project contained on the contingency list.
Proposal of

AdditionalMeasures
Within four months of the publication of the determination that additional control measures are needed, the EPA Administrator shall sign a notice of proposed rulemaking proposing all additional measures available to EPA which could correct the emission reduction shortfall. The measures would be chosen from the list appearing in the Appendix to this notice and from other

measures that may be identified in the future. Each measure would be examined for availability based upon the criteria described at 55FR 41204, 41210 (October 10, 1990) as modified in today's notice. Promulgation of

AdditionalMeasures
Within six months ofthepublication ofthe proposal and after consideration ofall comments received, the EPA Administrator shall sign a notice of final rulemaking promulgating all additional

measures available toEPA which could
correct the emission reduction shortfall. Publication ofthis final notice in the Federal Register would lift the requirement to delay transportation projects.

B. Listof HighwayProjectsSubjectto Delay
Givenbelow are the lists of transportation projects inMaricopa and Pima Counties that will be delayed under the contingency process ifEPA finds that additional control measures
are necessary to ensure maintenance of the CO NAAQS. Projects on these lists

are drawn from each County's Transportation Improvement Program (TIP) forFY 1989/90-1993/94.

In the NPRM,EPA listed projects by their TIP number. The Agency, however, did not make clear in theproposal that the listing ofthe TIP number was done only as aconvenient means of identifying the projects. It is the project description and not the TIP number which defines which projects willbe delayed.To make this point clear,TIP numbers have beenremoved from the lists. The breaking up ofa listedproject into several projects or repackaging the project with other projects will not

remove It from the listofprojects subject to delay.
1.Response toComments

EPA receivedconsiderable comment

on the lists oftransportation projects potentially subject to delay.

Comment ACLPIobjected to the exemptions used by EPAto exclude projects from the list stating that the exemptions areinconsistent withEPA guidance and the CleanAirAct These exemptions are listed in the NPRM at 55 FR 41204,41224 (October 10,1990).

Response.EPA believes itacted consistently with both its guidance and the CAA in establishing the exemptions. To select projects for listing.EPA used two guides to determine whether a project should or shouldnotbe listed. Thefirst guidewas the language from its 1982 SIPguidance that projects that may have adverse air quality impacts should be listed.EPA interpreted this to mean that it need not list projects that do not by their nature have adverse air quality impacts, e.g., landscaping projects, right- of-way acquisitions, and design and engineering studies.

The second guide was thelanguage relating to highway funding sanctions in section 176[a) ofthe CAA. Section 176(a) prohibits the Secretary of Transportation from approving "any projects or awardling] any grants under title23, UnitedStates Code, other than for safety,mass transit, or transportation improvement projects related to air quality Improvement or maintenance" after the EPA Administrator makes certain findings. Based on this language. EPA exempted from delayprojects that would not receive funding or approval under title 23 U.S.C., safety projects, transit projects, and TCMs in the SIP. While the recent amendments to the CAA more carefully define whichprojects are exempt from highway sanctions, they do not effectively change theexemptions used by EPAto develop the list of transportation projects.

Comment.MAG commented thatEPA provides no process for (1)removing projects from the listif they are later shown not tohave adverse air quality impact or 12) updating the list as new TIPs are adopted.

Response.Inresponse to these comments and a similar one from ACLPI, EPA hasrevised its contingency procedures to include, in the initial NPRM which announces aviolation of the CONAAQS, anupdated list of highwayprojects forpublic comment. This updated list wouldbebased on the latest TIP and the public, including state and local agencies, would have 30days
to provide comments. This comment period would provide an opportunity to submit newinformation on the air qualityimpacts oflistedprojects.

Comment MAGrequested removal of

seven ofthenine projects listed for Maricopa County because either the project had been deprogrammed from the TIP, theproject includes HOV lanes,

or the project has beneficial air quality impacts.

Response.On reviewing MAG's request, EPA has removed two projects from the listbecause they have already been funded andtherefore EPA could
not delay them in the future should contingency be triggered. The Agency, however, hasretained the remaining projects because eitherthe project could eventually be reprogrammed or the Agency did not agree that there is a conclusive demonstration that the project has airquality benefits.Thetwo projects with HOV laneswere retained because the lanes are a smallpart of major interchange improvements and the 1.7 miles oflanes were not part of the HOV lane measure included in the 1988 SIP.

Comment.MAG stated that three projects--#209, #255, and #292 (all improvements on 1-10)-have three characteristics in common: they come from a conforming TIP,they were incorporated into the COmodeling upon which EPA based its proposed FIP, and finally each project (because ofits federal funding) will undergo some environmental review.MAG also commented that,because EPA'smodeling implicity includes these projects, delaying them would put the FIP "out ofconformity with itself."

Response. Thefact that projects are contained in a TIPwhich has been found to conform tothe SIP is irrelevant to their listing as subject to delay. When MAG made its finding that theTIPin which these projects are listed conformed, it was stating only thatthe TIP didnot Impede the implementation ofadoptedTCMs. See The 1989/90 through1993/94 Transportation ImprovementProgram fortheMaricopa CountyArea,MAG, September 27,1989. page 16. MAG's conformity finding on this TIP states nothing about the potential air quality implications ofthe projects and therefore cannot be used as grounds that a project does nothave potentially adverse air quality impacts.

The delay ofprojects would onlybe triggered if the implementation plan was

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found to be inadequate to attain or maintain the CO NAAQS. Under these circumstances, allprojects with potentially adverse air quality impacts need to be reviewed to determine if additional measures are available that

canoffset their potential to increase emissions. This remains true whether or not the project was included in modeling used in theplan.

EPAagrees thatas federally-funded projects these projects will undergo environmental review and welcomes this as another means toensure air quality is considered as part ofthese projects. However, the fact that these projects will undergo environmental review in the future is not sufficient

reason for exempting these projects from listing now.

Theinclusion ofa project in the modeling assumptions used for a implementation plans no longer constitutes grounds forfinding that a project conforms.The CAA Amendments of1990 defines conformity to mean conformity to an implementation plan's purpose of eliminating orreducing the severity and number ofviolations ofthe NAAQS and achieving expeditious attainment ofthe standards and assuring that federal activities will not cause orcontribute to any new violation of any standard in any area, increase the frequency or severity ofany existing violation ofany standard in any area, ordelay timely attainment ofany standard orany required interim emission reductions or other milestone in anyarea. Therefore the delay ofa project, even ifthat project is assumed in the SIPbaseline, cannot automatically put the FIP "out of conformity with itself' because the conformity ofa project requires a showing beyond merely "assumed inthe SIP." It should alsobe remembered that theprojects are listed because of their potentially adverse air quality impacts, i.e., they may cause or contribute to NAAQS violations or increase emissions that maydelay required interim emission reductions. These projects, therefore. may have difficulty in being found inconformity.

Comment.MAG commented that EPA shouldtake into account existing environmental assessments or other site-specific documentation regarding the short or long-range impacts ofthe listed projects in order to avoid inadvertently delaying projects which wouldimprove or notharm airquality.

Response.EPA would welcome an opportunity to review an existing environmental assessments and would • consider information in themwhen considering whether to lista project EPA, however, received no such documents forthis rulemaking. As discussed above, should the contingency process be triggered, EPAwill propose
an updated list and provide MAG and others the opportunity tosubmit information (including existing environmental assessments, etc.) on the air quality impacts of theprojects and to request removal ofprojects which are clearly demonstrated to have no adverse impacts.

Comment.PAG found the "blanket inclusion of 'capacity-enhancing' projects" tobe inappropriate in cases where congestion is a major problem or where emissions reductions are substantial.

Response.EPAdid not use the criterion of "capacity-enhancement" to arrive at its list ofhighway projects subject todelay. Instead, capacityenhancing measures were what remained after EPA applied its list of exemptions. Given convincing information that a project will substantially reduce emissions, the Agency willremove it from thelist.EPA
cannot remove a project simply because itrelieves congestion without the demonstration that it also will reduce emissions. PAG did notrequest the removal of any specific project from its list.

Comment.The Arizona Department of Transportation requested thatEPA not have a list ofprojects subjectto delay in itsFIP.

Response.TheAgency does not believe that it has the option to remove the list ofhighway projects subject to delay from thisFIP. TheNinth Circuit's order in Delaneyrequires EPA to promulgate plans which contain contingency provisions "in accordance with [EPA's] guidelines." EPAguidance clearly requires a list ofhighway projects which willbe delayed ifthe Administrator finds the SIP inadequate to attain the NAAQSs and additional emission reductions are necessary. Therefore, EPA is constrained by the Delaneyorder and itsexisting guidance to include a list ofhighway projects subject to delay in the COFIP it promulgates for Arizona.

1.List ofProjects Subject to DelayPima County

Project descriptions are fromthe 1989/90-1993/94 PimaCounty Transportation ImprovementProgram, Pima Association ofGovernments, July, 1989. Project desclpmon

Moore Rd: Sandario Rd to 1-10 Frontage Road,

grade, drain, pave two 12-oot lanes (1.75 miles). Orange Grove Rd: 1-10 to Thornydale Rd., construct

new 6-lane with median (0.3 miles). 1-10: West Miracle Mile to Speedway, constnru.

frontage roads and ramps (2.0 miles). 1-10: East Frontage Road: St Mayms to Congress,

constructeast frontage road (0.7 ales). 1-10: Orange Grove Road to Prince Road widen tm

lnes (2.0 miles. 1-10: Speedway to St. Marys, construct frontage

roads and ramps (0.5 miles). 1-10: West Frontage Road ina to Miracle Mile, new

frontage rad.bridges (6.5 miles).

2. Listof Projects Subject to DelayMaricopa County

Project descriptions are from the 1989/90-1993/94 MaricopaCounty Transportation ImprovementProgram, Maricopa Association of Governments, September 27, 1989.

Project description

1-10 Macopa Fwy, S.R. 360, Interchange reconstruction/ mainline widening (1.0 mile). 1-10 Maricopa Fwy, Queen Creek Grade Separation,

interchange construction (0.2 mile). 1-10 Mai copa Fwy. Baseline Pd, widening roadway

and interchange. (0.7 mile). 1-10 Maricopa Fwy, Baseline Rd to Chandler Blvd,

addition of median lanes, (5.2 miles). 1-17 Black Canyon Fwy, Cameback Rd interchange,

Grand Canl widening, signage. and rght-of-way (0.10 mile). Undsay Road, Guadalupe Rd/Westem Canal, recon-

strct to 4 lanes (0.5 miles). Queen Creek Road, Maricopa Rd to Price Rd.,

construction of 4 lanes (3.2 miles).

VII. Conformity Provisions

EPA's 1982 SIP guidance requires SIPs
to contain two elements toassure conformity:

(1)"Administrative and technical procedures and agency responsibilities for ensuring in response tosection 178(c) ofthe Clear Air Act, that transportation plans, programs, and projects approved bya metropolitan planning organization [MPO)

are in conformance with the SIP," 46 FR 7182, 7187; and

(2)"Identifqicatloni, to theextent possible, ofthe direct and indirect emissions associated with major federal actions,

. . . that will take place during the period covered by the SIP." 46FR 7182, 7188 (emphasis added).

The requirement for conformity plans in SIPs is drawn from the general condition in CAA section 176(c) that a metropolitan planning organization shall
not give its approval to any project, program, orplan which does not conform to the applicable implementation plan approved or promulgated under section 110. Section 176(c) also prohibits any federal 5473

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department, agency, orinstrumentality from taking supportive actions on any activity that does not conform to a plan approved or promulgated under section 110.

A. ConformityProcedures

The conformity procedures are described in the NPRM at 55 FR 41204, 41225 (October 10, 1990).

On November 15, 1990, President Bush signed Into law the ClearAir Act Amendments of1990. These new amendments have more detailed conformityrequirements than the 1977 CAA amendments did. Section 176(c)(1) ofthe amendments define conformity as conformity to an implementation plan's
purpose ofeliminating or reducing the severity and number ofviolations ofthe NAAQS and achieving expeditious attainment ofthe standards and assuring that federal activities will not

cause orcontribute to any new violation ofany standard in any area, increase the frequency or severity ofany existing violation of any standard in any area, or delay timely attainment ofany standard

or any required interim emission reductions or milestone in any area.

In developing the proposed conformity procedures, EPA considered not only its 1982 SIP guidance but also the draft conformity language then under consideration by Congress. The final language in the CAA amendments isnot significantly different from that used by the Agency to develop its proposed regulations; however, EPAhas incorporated into its final regulation the changes made by Congress. The Agency chose to use the pending and final CAA amendment language because the Act as amended in 1977 provide little detail regarding conformity. However, the regulation being promulgated today is consistent with the CAA as amended in 1977.

EPA, in conjunction with the U.S. Department ofTransportation (U.S. DOT), will be issuing within a year final conformity criteria and guidance, applicable nationally, under the new Clean Air Act amendments; therefore, the conformity regulation being promulgated today forMaricopa and Pima nonattainment areas does not represent the Agency's final national policy on conformity.

1. Response to Comments

EPA received comments on the proposed conformity regulation from the Maricopa Association of Governments (MAG), the Pima Association of Governments (PAG), and ACLPI.

MAG raised concerns regarding the level ofanalysis and its cost as well as the difficulty inperforming the analysis within the one-year cycle for TIP preparation. EPA doesnot believe that it has the flexibility to reduce the level of documentation and determination needed to show conformity without jeopardizing consistency with the new CAA amendments and the ability ofthe public to reasonably review conformity findings. IfMAG finds it too difficult to comply with the conformity regulation under an annual TIP cycle, MAG has the optionunder the U.S. DOT regulations ofpreparing TIPs on a biennialbasis.

PAG alsoraised the issue ofresources to implement the conformity regulation but in direct connection with the modeling requirements in the regulation. EPA expects that the modeling requirements under the conformity procedures would be at a level matched to the type ofthe air quality problem experienced in the nonattainment area and that the MPO will develop criteria and procedures fordetermining where projects within the plan/program may exacerbate COconcentrations so as not to have to model every link and/or intersection.

ACLPI objected to three ofthe exemptions provided in the proposed regulation forproject-level review. EPA has reviewed these exemptions and agrees that one of the exemptions, that for state and locally-funded projects, is inconsistent with the CAA. EPA, therefore, has removed this exemption from the final regulation. The Agency does not agree with ACLPI that the exemptions forprojects outside the nonattainment area and specific safety projects are unwarranted. EPA is promulgating thisconformity regulation to correct deficiencies in the SIPs for the Maricopa and Pima carbon monoxide nonattainment areas; therefore, the exemption within this regulation for projects outside the nonattainment area isreasonable. It should be noted that the Arizona MPOs, despite the exemption in this regulation, are still required under section 176(c) to determine conformity for any projects they may approve whether inside or outside the nonattainment area; however,for projects outside the nonattainment area, they are not required to follow the conformity regulation being promulgated by EPA as part ofthe Arizona nonattainment area FIP. EPA believes that the exemption for safety projects is warranted on public health and safety considerations and that the exemption is limited only to safety projects such that safety projects which enhance capacity and therefore may increase emissions

are still subject to conformity.

ACLPIalso believed that EPA was granting too much discretion to the MPOs to determine where projects within a plan/program will exacerbate CO concentrations. ACLPI suggested that EPA make clear that the MPO must focus on those locations where CO concentration increases would be the greatest and that the Agency require the MPOs tojustify their modeling locations. EPA has made the necessary clarification in the preamble language which now states that MPOs should establish and document criteria and procedures for determining where projects within the plan/program may exacerbate CO concentrations.

A summary ofall comments received and EPA's complete response to each is included in the TSD for this rulelmaking.

2. Guidance for Implementation

The conformity regulation being promulgated today amends only the Maricopa and Pima portions ofthe Arizona CO SIP. The regulation applies only to MPOs in the Pima and Maricopa CO nonattainment areas or, more specifically, PAG and MAG in their capacity as MPOs. The procedures are tobe used by MAG and PAG when they make a conformity finding prior to approving any transportation plan,
program, orproject and do not apply to other non-transportation-related federal activities which these MPOs may approve. 5 The scope ofthe regulation is also limited to determinations of conformity for carbon monoxide.

In implementing the conformity regulation, the MPO should allow for public review and comment on the MPOs' conformity findings consistent with general administrative procedure; therefore, preliminary documentation and findings on conformity should be made available to the public when draft plans and programs are issued. The MPOs should ensure that the public have adequate time to review and

comment on the proposed findings. The MPOs should also ensure that the Arizona Department ofEnvironmental Quality (ADEQ) and the Pima County Department ofEnvironmental Quality or the Maricopa County Bureau of Air Pollution Control, as well as EPA, are given the opportunity to comment on the preliminary documentation and findings. The MPO should respond to all public
comments prior to finalizing its conformity determination.

5Although EPA's regulation, as required bythe 1982 SIP guidance, only applies to MPO's approval oftransportation plans, programs,and projects, this does not remove the requirement in CAA section 176(c) that federal departments, agencies, and instrumentalities mustdetermine conformity oftheir actions orthat MPOs must determine the conformity ofany non-transportation project that they may
approve.

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In determining theemission levels expected from implementation ofthe plan/program, the MPO should use the

same EPA-approved emission factor modelused in the applicable implementation plan.Where the impact ofimplemented TCMs are included in calculating these emission levels, their effectiveness shouldreflect their updated effectiveness rather thantheir effectiveness as assumed intheplan.

Under the conformity regulation, the MPOis required to determine, using air qualitymodeling, the micro-scale and. where appropriate to the air quality problem, regional ambient COlevels which would result from implementation ofthe plan/program duringthe period covered by the applicable plan. The MPO should develop and document criteria and procedures for determining where projects within theplan/program may cause CO violations and/or exacerbate CO concentrations already above the standard and shoulduse these criteria and procedures to identify appropriate locations for micro-scale modeling. Criteria the MPO could use include current and projected background CO concentrations at or
near the projects, VMT and vehicle trips intended to be served by theprojects, and the level ofservice before and after the project. In modeling ambient concentrations, the MPO should use EPA-approved models and techniques.

Under section 176(c), MPOs are prohibited from approving plans, programs, or projects which do not conform to animplementation plan approved orpromulgated under CAA section 110.Where an MPO cannot make each ofthe findings under the conformity regulation, itcannot approve
a plan,program, orproject until it has been modified so as toconform. Modifications can include elimination of the projects that cause the nonconformance, modifications tosuch projects, modifications to other projects in the TIP sufficient to offset emissions

or ambient concentration increases from projects causing the non-conformance,

or expeditious implementation of sufficient additional control measures to eliminate excess emissions or reduce ambient concentrations to the levels anticipated in the applicable implementation plan.

B. Identificationof Emissions from Federal Facilities
EPA's 1982 SIP guidance requires the SIPto identify, to the extent feasible, the expected emissions from federal activities. The sole purpose ofthis requirement is to ease the review of federal conformity determinations by
state and local agencies. Thelack ofan explicit identification in the SIPof emissions from a federal activity does
not eliminate therequirement in section 176(c) ofthe CAA (as amended in1977 and retained in the 1990 amendments) that the federal agency affirm the conformity to the SIPofany activities it supports. Similarly, the failure ofa SIP
to explicitly identify emissions from a federal activity does not constitute either an automatic finding of conformity or ofnonconformity for the federal activity in question. It always remains the duty ofa federal agency to make a determination ofconformity for its projects independent ofwhat the SIP
may say about thatproject.

For the NPRM. EPA identified potential future federal activities inthe Maricopa and Pima area during the tenyearperiod covered by the FIP.For this final notice, EPA attempted to quantify the emissions associated with these activities.For mostof the listedprojects, the Agency lacked the information
necessary to develop emission estimates primarily because the projectwas not well enough defined. in addition, many ofthe activities are minor and will have little to no impact on CO levels. EPA

was, therefore, unable to explicitly identify emissions associated with any federal activity.

OnlyACLPI commented on the list of federal activities. ACLPI listed a number offederal actions it believed should be

on EPA's list offederal activities. These listed activities include the sale of properties by the Resolution Trust Corporation, land exchanges by the Bureau ofLand Management, and activities by the Arizona Department of Environmental Quality (ADEQ) and the Arizona Department ofTransportation (ADOT). ACLPI stated that because ADEQ receives general federal assistance, actions by ADEQ to approve wastewater treatment systems, issue
water pollution permits, and administer federal construction grants for
wastewater treatment systems should be listed and their emission impacts estimated.ACLPI also stated that ADOT receives federal assistance. While the bulk of this funding to ADOT is used to
construct and maintain roads within the Pima and Maricopa nonattainment areas (activities EPAhad already), ACLPI claimed that "some of these funds are also used for transportation planning, research, and other purposes" and that they should be also listed.

EPA has added the sale ofproperties by the Resolution Trust Corporation to the list offederal activities for both Pima and Maricopa Counties. EPA contacted the Bureau ofLand Management during the proposal stage and did not discover any pending or anticipated landexchanges; therefore, EPA has not added any BLMactivities
to the list.

EPA believes that it was Inappropriate to add the ADEQ activities to the listbecause these state activities arenot federal actions which should be subject to conformity. ACLPI cannot turn state actions-ADEQ's approvals ofwastewater systems for

new subdivisions and issuance ofwater pollution permits-into federal actions simply onthe grounds thatADEQ receives general federal assistance funds to administer these programs. Under such administrative programs, it is the state which makes the approval or issues thepermit rather than the federal agency. UnderACLPI's broad interpretation ofsection 176(c), every action by a state orlocal agency that receives any federal funding be subject to conformity. Thisresult clearly is not in keeping with the language ofsection 176(c). Therefore, EPA believes that it need not add these ADEQ activities to its listoffederal activities.

EPA agrees that some ofthe funds that U.S. DOTprovides to ADOT are used forplanning, research, and other purposes, but is unsure how transportation planning and research by ADOTcould contribute to increased emissions until such plans and research

are converted to actual construction or operational changes, actions which if undertaken ineither Maricopa or Pima Counties would be programmed in a TIP and therefore would undergo conformity review. Therefore, EPAhas not listed these activities.
1.List ofFederal Activities for Pima County

Federal cy Federal activity

Dept. ofAgricuture

Forest Service.

Dept. of

Transportation. Construction of trailthad parkng area and Abbey Road cut-off wall in Coronado National Forest (planned, no date scheduled). Repairs/improvements of ex-

isting howays/arterials (24 projects. FY 90/94). Construction of new highwaysfarterials (17 projects, FY 90/94). Repaksprinovements of ex-

isting transit facilities (2 projects, FY 90/94). Construction of new transit faclifes (5 projects, FY 90/ 94). Repairs/improvements of existing airports (8 projects, FY 90/94). Construction of new airport

faclties (6 projects, FY 90/ 94). Land Acquisition (3 projects,

FY 90/94). Federal Register / Vol. 563, No. 28 / Monday, February 11, 1991 / Rules and Regulations 

### 5475

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### 5476 Federal Register / Vol. 56, No. 28 / Monday, February 11, 1991 / Rules and Regulations

Federal agency Federal activity

Resolution Trust Sale of Property (See list In

Corporation. TSD).

2. List ofFederal Activities forMaricopa

County

Federal agency Federal activity

Dept of Defense Construction of AZ Canal DIArmy Corp of version Channel (current). Engineers. Armed Forces

............ Rebuilding of Fort Wachuka In Serria Vista (planned, 1991). Dept of Housing Construction of an eldorly

and Urban nursing home In Phoenix Development. (current). Dept of Interior Construction of a canal from

Bureau of Lake Havasu to Tucson Reclarnation. and Phoenix; repairs to three dams: Coolidge, Waddell, and Roosevelt (current). Dept. of Repairs/improvements of ex-

Transportilon. Isting highways/arterials (152 projects, FY 90/94). Repairs/improvements of exIsting transit facilities (407 projects, FY 90/94. Construction of new transit facilities (4 projects, FY 90/ 94). Repairs/improvements of ex-

Isting airports (19 projects, FY 90/94). Land Acquis:1ion (7 projects,

FY 90/94). EPA

............................. Construction of a new wastewater treatment plant '. Rasolution Trust Sale of Property (See list In

Corporation. TSD).

IThe NPRM erroneously listed the expansion of four existing wastewater treatment plants.

VIII. Delegation of Substitution of FIP Measures

The Administrator ofthe Environmental Protection Agency has the authority to delegate implementation and enforcement ofa FPmeasure to an Arizona State agency, to a regional agency in Arizona or to a local government within itsjurisdictional boundaries. Prior to any delegation, the Administrator would have to determine that the agency orjurisdiction requesting the delegation has legal authority to implement and enforce the

measure and has committed the necessary staffing and resources to implement and enforce it.EPA would encourage agencies who meet these criteria to apply for delegation.

The State ofArizona may wish to submit toEPA procedures and/or regulations to substitute for part or all of the federal plan. Such procedures and/

or regulations would need to comply with all applicable CAA requirements and EPA guidance. The State would also need to show that any regulation(s) intended to replace a federal measure would achieve, in total,at least the equivalent emission reductions on the

same or faster schedule than the FIP

measure.

Arizona State and local officials have already stated in meetings with EPA that they wish to correct the deficiencies. in the SIPnoted by the Ninth Circuit. As stated by ADEQ in its comments on the proposal, the development ofan approvable SIP, consistent with the Delaneyorder, will require much more than the adoption ofthe equivalent of the oxygenated fuels and RVP limit rules in this FIP. The State and itslocal agencies will need to evaluate which

measures are available to them and adopt and implement all measures which will result in attainment as expeditiously as practicable. In addition, the State and the appropriate local agencies will need to submit approvable conformity and contingency procedures. Finally, the recent enactment of the Clean Air ActAmendments of 1990 will likely change the requirements for an approvable SIP. EPA will continue to work with Arizona agencies in developing corrective SIPs which fully comply with the Delaneydecision and the newly amended Clean Air Act.

IX. Administrative Designation and Regulatory Analysis

Under Executive Order 12291, EPA must judge whether a regulation is "major" and therefore subject to the requirement for a regulatory impact analysis. EPA has determined that this rulemaking is not major. Specifically, the rules will cost less than $100 million annually, will cause no major price increases, and should not have a significant adverse effect on competition, productivity, orinvestment. Accordingly, no regulatory impact analysis is necessary. However, the Agency has prepared a technical support document (TSD) that contains additional technical information supporting this FIP promulgation. This TSD has been placed in the public docket and is available forreview at the locations referenced in the boginning of today's notice. In addition, interested parties may obtain single copies from the public contact listed at the beginning ofthis notice.

This rulemaking was also submitted to the Office ofManagement and Budget (0MB) for review as required by Executive Order 12291. Any written comments from OMB and EPA's
response to those comments have been placed in the public docket for this rulemaking.

X. Impact on Small Entities

Section 605 ofthe Regulatory Flexibility Act requires that the Administrator certify that regulations do not have a significant impact on a substantial number ofsmall entities. I certify that these regulations will not have such an effect for three primary

reasons. First, many of the entities affected by the proposed rule are not "small." Refiners, large distributors, and service stations owned by major oil companies or large independent companies (accounting for about 25 percent ofpublic refueling facilities) do
not constitute small entities. Second, the geographic scope ofthe proposed regulations as they may affect small entities is limited to a portion of Maricopa County,Arizona. Third and finally, compliance with the oxygenated fuels program and RVP limit generally will not have a significant impact on a substantial number ofsmall entities because ofthe limited capital investment required.

XI. Reporting andRecordkeeping Requirements

The information collection provisions relating to this rulemaking have been submitted to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. A final Information Collection Request (ICR) document has been prepared by EPA and a copy may be obtained from the Information Policy Branch (PM-223J; U.S. Environmental Protection Agency; 401 M Street, SW., Washington, DC 20460 or by calling (202) 382-2706. Comments on the ICR may be submitted
to EPA at the above address and should also be sent to the Office ofInformation and Regulatory Affairs; Office of Management and Budget; 726 Jackson Place, NW., Washington, D.C. 20503 marked "Attention: Desk Officer for EPA." The ICR has been approved by OMB and the control number is 2060- 0214.

List ofSubjects in 40 CFRPart52

Air pollution control, Air quality plan, Carbon monoxide, Mobile sources, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7462 (1989); Ninth Circuit orderin Delaneyv. EPA. 898F.2d 887.

Dated: January28,1991. William K.Reilly, Administrator.

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Measure

1.Short-range transit Improvements

........................... 2. Long-range transit Wmprovements

......................... 3. Exclusive bus lanes on arteuials and freeways 4. Park and ride lots

. ................ . . . 5. HOV lanes onfreeways

........................................ 6. HOV lanes on arterials

. ... ...................... 7. Freeway ramp metering with HOV bypass

.............. 8. Freeway surveillance, ramp metering, &slgnage

.... 9. Sgnal synchronl....................................... 10. Reversible lanes on arterial

.................................. 11. One-way streets

.............. . . ................ 12. Intersection Improvement

............................... 13. On-street parking restrictions

.................................. 14. Bus pullouts Incurbs

.............................................. 15. Bicycle travel and supportfacilities

....................... 16. Pedestrian pathways and support facilities

........... 17. Auto free zones

............. ........................... 18. TON roads

. . .................. 19. Measures to reduce idling at ddve-up facilities 20. Mitigation of freeway construction impacts

............ 21. Expanded regional ridesharing program

................. 22.Voluntary no-driNe-day programs (VNDD)

.............. 23. Areawide public awareness programs

.................... 24. More stringent travel reduction program (TRP). 25. Financial Incentives to employees In lieu of

parki spaces. 26. Preferential parking for car/vanpools

................. 27. Free transit passes to employees

.......................... 28. Alternative workhours/weeks

.................................. 29. Telecommuting

.......................................................... 30. Teleconferencing

.................................................... 31. Encourage bicylce usage

......................... 32. Encourage pedestrian travel

.................................... 33. Parking fees

................................................................ 34.Witer daylight savings time

.................................... 35. Evaluation and mitigation of air quality impacts

on new development (indirect source review).

-- general development

............................................ -federal facilities

.............. ............ 36. Land use patternswhich support transit

................ 37. Relocation of major traffic generators from

highlycongested areas. 38. Mandatory no-drive-day programs

.................... 39. Truck restrictions during peak periods (arterial

and/or freeway). 40. Increased enforcement of traffic, parking, and

air pollution regulations. 41. Increased gasoline tax

............................. 42. Increased vehicle registration fees

........................ 43. Wintertime RVP limit

............................................... 44. Higher average gasoline oxygen level

.................... 45. Expansion of the oxygenated fuels program

county-wide. 46. Expansion of the oxygenated fuels program

statewide. 47. Elimination I/M waivers

. .............................. 48. Expansion of the I/M program statewide

.............. 49. Expansion of the I/M program county-wide

........... 50. Increased stringency of the I/M program

............... 51. Composite In-use emission standard

...................... 52. Conversion of vehicle fleets to alternative fuels 53. Conversion of buses to alternative fuels/elec54. Retrofit of pre-1975 velcles with catalytic con-

vertors. 55. Purchase and removal of pre-1980 vehicles APPENDIX TO THE PREAMBLE Summary, Results of Candidate Screening

Legal auth Res Tech avail 

# [ Pot cand. Comment

State already implementing.

Legal authority for federally-funded facilities only. See Note 1. See Note 1. Program Incorporated Into VNDD program.
Imp. as part of TRP.

Imp. as part of TRP. Imp. as part of TRP. Imp. as part of TRP. Imp. as part of TRP. Imp. as part of TRP. Imp. as part of TRP. Imp. as part of TRP. Prohibited by CAA 10(c)(2)(B). Regulated by DOT.

Prohibited by CAA (110(a)(5)(A). Negligible reductions.

Severe economic impacts for effected sources.

Note 2.

Effectively occurs already, additional red, Unlikely.

Note 3.

Note 3. Note 3.

Duplicates state program, additional red. Unlikely.

V-Yes N-No n/a-not applicable ?=-unclear Detailed Information on each measure may be found in the Technical Support Document for this rulemaldng. NOTE 1. Implementation would be by granting additional funds to the existing State programs. Given the low level of funding available to EPA for these measures, the marginal Increase in effectiveness of these programs would be negligible. NOTE 2. EPA has no legal authority to enforce measures, such as traffic and parking regulations, which are not In the SIP. Most CO air pollution regulations are considered s separate items on this list. NOTE 3. EPA can prohibit the State from registering certain vehicleswhich do not pass the I/M program.

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### 5478 Federal Register / Vol. 56, No. 28 / Monday, February 11, 1991 / Rules and Regulations

Forthe reasons set forth in the preamble, Subpart D,Part 52, Subchapter C,Chapter IofTitle 40, Code ofFederal Regulations, is amended as follows:

PART 52-APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

Subpart D-Arizona

1.The authority citation for part52 continues to read as follows:

Authority: 42U.S.C. 7401-7642.
2.40 CFR part 52 is amended by adding §52.124 as follows: §52.124 Part Ddisapproval.

(a) The following portions ofthe Arizona SIPare disapproved because they do not meet the requirements of Part D ofthe Clean Air Act. (1)The attainment demonstration, conformity and contingency portions of the 1987 Maricopa Association of Governments Carbon Monoxide Plan and 1988 Addendum.

(2)The attainment demonstration and contingency portions of the 1987 Carbon Monoxide State Implementation Plan Revision for the Tucson Air Planning Area. (b) (Reserved). 3.40 CFRpart 52 is amended by adding new §§52.136, 52.137, and 52.138 to subpart Dto read as follows: §52.136 Oxygenated fuelsprogram.

(a) Definitions. (1)Fleetownermeans a registered

owner or lessee of atleast tgwenty-five vehicles.

(2)MaricopaCountynonattainment

areameans the carbon monoxide nonattainment area in Maricopa County

as described in 40 CFR 81.303 (i.e., the MAG urban planning area).

(3)Manufacturer's proving ground

means a facility whose sole purpose is to develop complete advanced vehicles for an automotive manufacturer.

(4)Motorvehicle means any selfpropelled vehicle designed for transportation ofpersons or property on
a street orhighway.

(5)Motorvehicle racing eventmeans
a race that uses unlicensed vehicles which are designed and manufactured specifically for racing purposes and that is conducted on a public orprivate

racecourse forthe entertainment of the general public.A motorvehicle racing event includes practice, qualifying, and demonstration laps conducted as part of the activities related to a motorvehicle

race.

(b)Regulatorystandard. Except as provided under paragraph (c)ofthis section,no person shall first introduce into commerce within the Maricopa CO nonattainment area ("control area") duringthe period October 1,1991, to March 31, 1992. and each period of October I to March 31 thereafter ("control period"), for the fueling of motorvehicles, gasoline whose oxygen content is lessthan 2.7 percent (by weight), as determined pursuant to paragraph (d) ofthis section. In addition, all gasoline which is consumed in a motor vehicle operated by a fleet

owner within the control area shall contain not less than 2.7 percent oxygen byweight.

(c)Exceptionstoparagraph (b) of this section.Persons identified in paragraph (b)of this section shall be permitted to introduce into commerce nonoxygenated fuel to manufacturer's proving grounds and to motor vehicle racing events.

(d) Sampling,testing,andoxygen contentcalculations. (1)For the purpose ofdetermining compliance with the standards listed in paragraph (b) ofthis section, the oxygen content ofgasoline shall be determined by:

(i)Use ofone ofthe sampling methodologies specified in appendix D of40 CFR part 80 to obtain a representative sample ofthe gasoline to be tested;

(ii) Use ofthe testingmethodologies specified in appendix A ofthis section to determine the mass concentration of each oxygenate in the gasoline sampled; and

(iii) Calculation ofthe oxygen content of the gasoline sampled by multiplying the mass concentration ofeach oxygenate in the gasoline sampled by the oxygen mass concentration ofthe oxygenate set forth inparagraph (d)(2) ofthissection.

(2)For purposes ofthis section,the oxygen mass concentrations of oxygenates are the following:

Oxygenate Oxygen

mass

Methanol

................. 0.4993 Ethanol

.................. 0.3473 Propanols

..................................................... 0.2662 Butanols

................ 0.2158 Pentanols

................................................. 0.1815 Methyl Tertiary-Butyl Ether (MTBE)

.......... 0.1815 Hexanols

................ 0.1566 Tertiary Amyl Methyl Ether (TAME) 0.1568 Ethyl Tertiary-Butyl Ether

.......................... 0.1569

(3)Examples-(i) Example 1. Assume that a batch ofgasoline is sampled by

use ofone of the methodologies set forth in appendix Dof40 CFR part 80 and tested byuse ofthe test methodologies set forth in appendix A ofthis section. The gas chromatograph analysis indicates that the gasoline sampled contains an ethanol mass concentration of9.85% (0.0985). The oxygen contents of the gasoline sampled is calculated as follows: Oxygen Content

= (Ethanol Mass concentration in Gasoline

Sample) X(Oxygen MassConcentration ofEthanol)

= (0.0985) X(0.3473) =0.0342

= 3.42 (ii) Example 2. Assume that a batch of gasoline is sampled byuse ofone ofthe methodologies set forth in appendix D of 40 CFR part 80 and tested byuse ofthe methodologies set forth in appendix A of this section. The gas chromatograph analysis indicates 1hat the gasoline sampled contains a methanol mass. concentration of4.50% (0.0450)and an ethanol mass concentration of2.25% (0.0225). The oxygen content ofthe gasoline sample is calculated as follows: Oxygen Content

= (MethanolMass concentration in

Gasoline Sample) X(OxygenMass Concentration ofMethanol) + (Ethanol Mass Concentration inGasoline Sample) X(OxygenMass Concentration of Ethanol)

=(0.0450)X(0.4993) + (0.0225) X(0.3473) =0.0225 +0.0078 =0.0303

=3.03 (e)Labeling.(1)Each gasoline pump stand fromwhich gasoline is dispensed at a retail outlet orwholesale purchaserconsumer facility in the control area shall be affixed during the control period with a legible and conspicuous labelwhich states the type(s) and maximum percentage(s) (by volume) of oxygenate contained in such gasoline. The label shall also state that the gasoline is oxygenated and will reduce carbon monoxide emissions from motor vehicles. If the gasoline being dispensed from a pump stand does not contain any oxygenate, the pump stand shall be so labeled.

(2) Each invoice, loading ticket,bill of lading, delivery ticket and other document which accompanies the shipment ofgasoline within the control

area during the control period shall contain a legible and conspicuous
statement which gives the type(s) and percentage(s) (by volume) of oxygenate contained in such gasoline and the oxygen content of such gasoline (percentage by weight). If the gasoline being shipped doesnot contain any oxygenates, the document accompanying the shipment shall be sc labeled. Such documents shall be retained by distributors, resellers carriers,retailers and wholesale purchaser-consumers for at least two

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years, and shall be available for inspection by the Administrator orhis authorized representative during such period.

(f)Prohibited Acts. Such violations willinclude, but are not limited to:

(1)Selling supplying, offering for sale, offering forsupply orotherwise first introducing into commerce within the control area gasoline whose oxygen content does not comply with the regulatory standard except as allowed in paragraph (c);

(2)Failure to properly label a retail outlet orwholesale purchaser-consumer pump stand;

(3)Failure to properly label an invoice

orother gasoline delivery document. Appendix A to §52.136-Testing Procedures Method-ASTM StandardTest Method for Determination ofC,to C, Alcohols and MTBE InGasoline by Gas Chromatography

1.Scope. 1.1 This test method covers a procedure fordetermination of methanol, ethanol, isopropanol, npropanol, isobutanol, sec-butanol, tertbutanol, n-butanol, and methyl-tertiary butyl ether (MTBE) in gasoline by gas chromatography.

1.2 Individual alcohols andMTBE

are determined from 1.0 to10 volume %.

1.3 Sl (metric] units ofmeasurement

are preferred and used throughout this standard. Alternative units, in common usage, are also provided to improve the clarity and aid the user ofthis test method.

1.4 This standard may involve hazardous materials, operations, and equipment.This standard does not purport to address all ofthe safety problems associated with its use. It is theresponsibility ofthe user ofthis standard to establish appropriate safety and health practices and determine the applicability orregulatory limitations prior to use.

2.ReferencedDocuments. 2.1 ASTM Standards: D4057 Practice forManual Sampling of Petroleum and Petroleum Product D4307 Practice forPreparation of

Liquid Blends for Use as Analytical Standards D4626 Practice for Calculation ofGas

Chromatographic Response Factors E260 Practice for Packed Column Gas

Chromatographic Procedures E355 Practice for Gas Chromatography

Terms and Relationships 3.Descriptions ofTermsSpecific to ThisStandard.

3.1 MTBE-methyl teriary butyl ether.

3.2 Low Volume Connector--a special union for connecting two lengths oftubing 1.6 mm inside diameter and smaller. Sometimes this is referred to as

a zero dead volume union.

3.3 Oxygenates-used to designate fuel blending components containing
oxygen, either in the form of alcohol or ether.

3.4 Split Ratio-a term used ingas chromatography using capillary columns. The split ratio is the ratio of the toal flow ofthe carrier gas to the sample inlet versus the flow ofcarrier
gas to the capillary column. Typical values range from 10:1 to 500:1 depending upon the amount of sample injected and the type ofcapillary column used.

3.5 WCOT-abbreviation for a type ofcapillary column used in gas chromatography that is wall-coated opentubular. This type ofcolumn is prepared by coating the inside of the capillary with a thin film ofstationary phase.

3.6 TCEP-1,2,3-tri-2- cyanoethoxypropane-a gas chromatographic liquid phase.

4.Summary ofTestMethod. 4.1 An internal standard, tertiary amyl alcohol, is added to the sample which is then introduced into a gas chromatograph equipped with two columns and a column switching valve. The sample first passes onto a polar TCEP column which elutes lighter hydrocarbons to vent and retains the oxygenated and heavier hydrocarbons. After methylcyclopentane, but before MTBE elutes from the polar column, the valve is switched to backflush the oxygenates onto a WCOT non-polar column. The alcohols and MTBE elute from the non-polar column in boiling point order,before elution ofany major hydrocarbon constituents. After benzene elutes from the non-polar column, the column switching valve is switched back to its original position to backflush the heavy hydrocarbons. The eluted components are detected by a flame ionization or thermal conductivity detector. The detector response, proportional to the component concentration, is recorded; the peak

areas aremeasured; and the concentration of each component is calculated with reference to the internal standard.

5. Significanceand Use. 5.1 Alcohols and other oxygenates may be added togasoline to increase the octane number. Type and concentration ofvarious oxygenates are specified and regulated to ensure acceptable commercial gasoline quality. Drivability, vapor pressure, phase separation, and evaporative emissions

are some ofthe concerns associated with oxygenated fuels.

5.2 This testmethod is applicable to both quality control in the production of gasoline and for the determination of deliberate or extraneous oxygenate additions or contamination.

6.Apparatus. 6.1 Chromatograph: 6.1.1 A gas chromatographic instrument which can be operated at the conditions given inTable 1, and has a column switching and backflushing system. Carrier gas flow controllers shall be capable ofprecise control where the required flow rates are low (Table 1).

TABLE 1.-- CHROMATOGRAPHIC OPERATING CONDITIONS

Temperatures Flows, mL/mln, carrier gas helium Other parameters

Column Oven, C: 60

........................................................... To Injector 75

..................................................................... Sample size, pL3. Infector, "C: 200

............................... .......... ........................ ]Column: 5

.............................................................................. Split ratio 15:1. Detector-TCO, C: 200

....................................................... Audliary3. 3

.......................................................................... Backflush, min 0.2-0.3. -FID, "C:250

..................................................................... Makeup: 18

......................................................................... Valve reset time, 8-10 min. Valve, -C: 60

........................................................................ ..................................................... .... .. . ............ Total analysis time, 18-20 min.

Pressure control devices and gauges shall be capable ofprecise control for the typical pressure required.

6.1.2 Detector-A thermal conductivity detector or flame ionization detector, may be used. The system shall have sufficient sensitivity and stability to obtain a recorder deflection ofat least 2mm at a signal-to-noise ratio ofat least 5 to I for0.005 volume % concentration ofan oxygenate.

6.1.3 Switching and Backflushing Valve-A valve, to be located within the
gas chromatographic column oven, 5479

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capable ofperforming the functions described in section 11.0. The value shall be oflow volume design and not contribute significantly to chromatographic deterioration.

6.1.3.1 Valco Model No. CM-VSV10-HT, 1.6-mm (1/18-in.) fittings.This particular valve was used in the majority ofthe analyses used forthe development ofSection 15.

6.1.3.2 Valco Model No. C1OW, 0.8-

mm (1/32-in.) fittings. This valve is recommended for use with columns of 0.32-mm inside diameter and smaller.

6.1.4 Although not mandatory, an automatic valve switching device is stronglyrecommended to ensure repeatable switching times. Such a device should be synchronized with injection and data collection times. Ifno such device is available, a stopwatch, started at the time ofInjection, should be used to indicate theproper valve switching time.

6.1.5 Injection System-The chromatograph should be equipped with

a splitting-type inlet device. Split injection is necessary tomaintain the actual chromatographed sample size within the limits ofcolumn and detector optimum efficiency and linearity.

6.1.6 Sample Introduction-Any system capable ofintroducing a representative sample into the split inlet device. Microliter syringes, automatic syringe injectors, and liquid sampling valves have been used successfully.

6.2 Data Presentation or Calculation,

or Both:

6.2.1 Recorder-A recording potentiometer or equivalent with a fullscale deflection of5 mV or less. Fullscale response time should be I aor less with sufficient sensitivity and stability
to meet the requirements of6.1.2.

6.2.2 Integrator or Computer-- Devices capable ofmeeting the requirements of6.1.2, and providing graphic and digital presentation ofthe chromatographic data are recommended foruse. Means shall be provided for determining the detector response. Peak heights or areas can be measured by computer, electronic integration or manual techniques.

6.3 Columns, two as follows: 6.3.1 Polar column-This column performs a preparation of the oxygenates from volatile hydrocarbons in the same boiling point range. The oxygenates and remaining hydrocarbons

are backflushed onto the non-polar column in section 6.3.2. Any column with equivalent or better chromatographic efficiency and selectivity tothat described in6.3.1.1

can be used. The column shall perform
at the same temperatures as required for the column in 6.3.2 6.3.1.1 TCEPMicro-Packed Column, 560 mm (22 in.) by 1.6-mm (1/16-in.) outside diameter by 0.38-mm (0.015-in.) inside diameter stainless steel tube packed with 0.14to 0.15 g of20% (mass/ mass) TCEP on 80/100 mesh Chromosorb P(AW). This column was used in the cooperative study toprovide the Precision and Bias data referred to in Section 15.

6.3.2 Non-polar (Analytical) Column-Any column with equivalent

or better chromatographic efficiency selectivity to that described in 6.3.2.1

can be used.

6.3.2.1 WCOT Methyl Silicone Column, 30m (1181 in.) longby 0.53 mm (0.021-in.) inside diameter fused silica WCOT column with a 2.6pm film thickness ofcross-linked methyl siloxane. This column was used, in the cooperative study toprovide the Precision and Bias data referred to in Section 15.

7.ReagentsandMaterials. 7.1 Carrier Gas-Carrier gas appropriate to the type ofdetector used. Helium has been used successfully. The minimum purity ofthe carrier gas used
must be 99.95 mol %.

7.2 Standards for Calibration and Identification-Standards of all components to be analyzed and the internal standard are required for establishing identification by retention time as well as calibration for quantitative measurements. These materials shall be ofknown purity and free ofthe other components to be analyzed.

Note 1:Warning-These materials are flammable and may beharmful or fatal if ingested orinhaled.

7.3 Preparation ofCalibration Blends-For best results, these components must be added to a stock gasoline orpetroleum naphtha, free of oxygenates (Warning-See Note 2). Refer to TestMethod D 4307 for preparation ofliquid blends. The preparation of several differentblends,
at different concentration levels covering the scope ofthe method, is recommended. These will be used to establish the linearity ofthe component response.

Note 2.Warning-Extremely flammable. Vapors harmful ifinhaled.

7.4 Methylene Chloride-Used for column preparation. Reagent grade, free ofnon-volatile residue.

Note 3:Warning-Harmful Ifinhaled. High concentrations may cause unconsciousness

or death.

8 Preparation ofColumnPackings. 8.1 TCEP Column Packing: 8.1.1 Any satisfactory method, used in thepractice of the artthat will produce a column capable ofretaining the C, to C, alcohols and MTBE from components ofthe same boiling point
range in a gasoline sample. The following procedure has been used successfully.

8.1.2 Completely dissolve 10 g of TCEP in100 mLof methylene chloride. Next add 40 g of80/100 mesh Chromosorb P(AW) to the TCEP solution. Quickly transfer this mixture to

a drying dish, in a fume hood, without scraping any ofthe residual packing from the sides ofthe container. Constantly, but gently, stir the packing until all of the solvent has evaporated. This column packing can be used immediately to prepare the TCEP column.

9.Preparation of

Micro-packedTCEP Column.

9.1 Wash a straight 560 mm length of 1.6-mm outside diameter (0.38-mm inside diameter stainless steel tubing with methanol and dry with compressed nitrogen.

9.2 Insert 6 to 12 strands ofsilvered wire, a small mesh screen or stainless steel frit inside one end ofthe tube. Slowly add 0.14 to0.15 gofpacking material to the column and gently vibrate to settle the packing inside the column. When-strands ofwire areused
to retain packing material inside the column, leave 6.0mm (0.25 in.) of space at the top ofthe column.

9.3 Column Conditioning-Both the TCEP and WCOT columns are to be briefly conditioned before use. Connect the columns to the valve (see 11.1) in the chromatographic oven. Adjust the carrier gas flows as in 11.3 and place the valve in the RESET position. After several minutes, increase the column

oven temperature to 120 °C and maintain these conditions for 5 to 10 min. Cool the columns below 60 *C before shutting off the carrier flow.

10. Sampling. 10.1 Gasoline samples to be analyzed by this test method shall be sampled using procedures outlined in Practice D 4057.

11. Preparation of

Apparatusand EstablishmentofConditions.

11.1 Assembly-Connect the WCOT column to the valve system using low volume connectors and narrow bore tubing. It is important tominimize the volume ofthe chromatographic system that comes in contact with the sample, otherwise peak broadening will occur.

11.2 Adjust the operating conditions
to those listed inTable 1,but do not turn

on the detector circuits. Check the

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system for leaks before proceeding further.

11.3 Flow Rate Adjustment: 11.3.1 Attach a flowmeasuring device to the column vent with the valve in the RESET position and the pressure to the injection port togive 5.0mL/min flow (14 psig). Soap bubble flow meters

are suitable.

11.3.2. Attach a flow measuring device to the split injector vent and adjust the flow from the split vent using the A flow controller to give a flow of70 mL/min. Recheck the column vent flow
set in 11.3.1 and adjust ifnecessary.

11.3.3 Switch the valve to the BACKFLUSH position and adjust the variable restrictor togive the same column vent flow setin 11.3.1. This is
necessary to minimize flow changes when the valve is switched.

11.3.4 Switch the valve to the inject position RESET and adjust the B flow controller to give a flow of3.0 to 3.2 mL/ min at the detector exit. When required for theparticular instrumentation used, add makeup flow or TCD switching flow
togive a total of21 mL/min at the detector exit.

11.4 When a thermal conductivity detector is used, turn on the filament
current and allow the detector to equilibrate. When a flame Ionization detector is used, set the hydrogen and air flows and ignite the flame.

11.5 Determine the Time to Backflush-The time to backflush will vary slightly for each column system and must be determined experimentally

as follows. The start time ofthe integrator and valve timer must be synchronized with the injection to accurately reproduce the backflush time.

11.5.1 Initially assume a valve BACKFLTJSH time of0.23 min.With the valve RESET, inject 39L ofa blend containing at least 0.5%or greater oxygenates [7.3), and simultaneously begin timing the analysis. At 0.23 min,
rotate the valve to the BACKFLUSH position and leave it there until the complete elution ofbenzene is realized. Note this time as the RESET time, which is the time at which the valve is returned
to the RESET position. When all ofthe remaining hydrocarbons are backflushed the signal will return to a stable baseline and the system is ready for another analysis.

11.5.2 It is necessary to optimize the valve BACKFLUSH time by analyzing a standard blend containing oxygenates. The correct BACKFLUSH time is determined experimentally by using valve switching times between 0.2 and 0.3 min.When the valve is switched too
soon, C5 and lighter hydrocarbons are backflushed and are co-eluted in the C alcohol section ofthe chromatogram. When the valve BACKFLUSH is switched too late,part or all ofthe MTBE component is vented resulting in

an incorrect MTBE measurement.

12. Calibration andStandardization. 12.1 Identification-Determine the retention time ofeach component by injecting small amounts either separately or in known mixtures or by comparing the relative retention times with those in Table 2.

12.2 Standardization-The area under each peak in the chromatogram is considered a quantitative measure of corresponding compound. Measure the peak area ofeach oxygenate and ofthe internal standard by either manual method or electronic integrator. Calculate the relative volume response factor ofeach oxygenate, relative to the internal standard. according to Test Method D 4626. 13.Procedure. 13.1 Preparation ofSamplePrecisely add a quantity ofthe internal standard to an accurately measured quantity ofsample. Concentrations ofI
to 5 volume %have been used successfully.

13.2 Chromatographic Analysis-- Introduce arepresentative aliquot ofthe sample, containing internal standard. into the chromatograph using the same technique as used for the calibration analyses. An injection volume of3 ,L with a 15:1 split ratiohas been used successfully.

13.3 Interpretation of Chromatogram-Compare the results of sample analyses to those ofcalibration analyses to determine identification of oxygenates present.

TABLE 2.-RETENTION CHARACTERISTICS

FOR TCEP/WCOT COLUMN SET CONDITIONS AS INTABLE 1

Relative COT~nent Retadion retention tm ,nd tim (t-amyl alcohol

=1.00)

Methanol

........ 3.21 0.44 Ethanol.._ 3.58 0.50 Isopopa3l .95 0.56 tert-Butanol

................... 4.31 0.61 n-Propanol 4.75 0.68 MTBE

............................ 5.29 0.76 TABLE 2.-RETENTION CHARACTERISTICS FOR TCEP/WCOT CoLUMN SET CONDITIONS AS INTABLE 1.--Continued

Relative Component Retention retention 

### Cnmin e in time (t-amyl alcohol -1.00)

sec-Butanol 5.63 0.82 Isobtanol

............... 6.33 0.93 n-Butno.

........ 7.55 1.10 Benzene...................... 7.88 1.17

14. Calculation. 14.1 After identifying the various oxygenates, measure the area ofeach oxygenate peak and that ofthe internal standard. Calculate the volume percent of oxygenate as follows:

VsXPATXIoo
Vl
- PAsXSrxV 0 where: V,=volume percent ofoxygenate to be determined, Vs=volune ofinternal standard (tert-amyl alcohol) added. VG=volume ofgasoline sample taken. PAI=peak area ofoxygenate to be determined, PA.=peak area ofthe Internal standard [tertamyl alcohol), and S1=relative volume response factorof each component (relative to theinternal standard).
14.2 Report the volume percent of each oxygenate.

15. Precision and Bias. 15.1 Precision-The precision of this
test method as determined by the statistical examination ofthe interlaboratory test results is as follows:

15.1.1 Repeatability-The difference between successive results obtained by the same operator with the same apparatus under constant operating conditions on identical test material would, inthe long run,in the normal and
correct operation ofthe test method exceed the following values only in one

case in twenty (see Table 3). Methanol 0.086X (V+0.070) Isobutanol 0.064X (V+o.086) Ethanol 0.083X(V+0.000) sec-Butanol 0.014XV112 Isopropanol 0.052X(V+0.150) tertButanol0.052 X(V 0.388) n-Propanol 0.040X (V+ 0.026) n-Butanol 0.043X(V+o.020) MTBE O.lO4x(V+0.28) where V is the mean volume percent. 5481

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TABLE 3.-PRECISION INTERVALS-DETERMINED FROM COOPERATIVE STUDY DATA SUMMARIZED IN SECTION 15

Volume % Comlioflents 0.20 0.50 1.00 2.00 3.00 4.00 5.00 6.00

Repeatabdl. M

ethanol

................................................................................................................................................... 0.02 0.05 0.09 0.18 0.28 0.35 0.44 0.52 Ethanol

...................................................................................................................................................... 0.02 0.04 0.08 0.17 0.25 0.33 0.42 0.50 Isopropanol

.............................................................................................................................................. 0.02 0.03 0.06 0.11 0.16 0.22 0.27 0.32 n-Propanol

.............................................................................................................................................. 0.01 0.02 0.04 0.08 0.12 0.16 0.20 0.24 tert-Butanol

............................................................................................................................................... 0.03 0.05 0.07 0.12 0.18 0.23 0.28 0.33 sec-Butenol

............................................................................................................................................... 0.01 0.01 0.01 0.02 0.02 0.03 0.03 0.03 Isobutanol

............................................................................................................................................... 0.02 0.04 0.07 0.13 0.20 0.26 0.33 0.39 n-Butanol

.................................................................................................................................................. 0.01 0.02 0.04 0.09 0.13 0.17 0.22 0.26 M

TBE

......................................................................................................................................................... 0.02 0.05 0.11 0.21 0.31 0.42 0.52 0.63 Reproducibility M

ethanol

................................................................................................................................................... 0.10 0.21 0.39 0.75 1.11 1.47 1.83 2.19 Ethanol

...................................................................................................................................................... 0.07 0.19 0.37 0.75 1.12 1.49 1.87 2.24 Isopropanol

............................................................................................................................................... 0.07 0.14 0.25 0.46 0.67 0.89 1.10 1.32 n-Pro .anol

................................................................................................................................................ 0.04 0.09 0.17 0.33 0.49 0.68 0.82 0.98 tert-Butanol

............................................................................................................................................... 0.10 0.16 0.25 0.43 0.60 0.78 0.96 1.14 sec-Butanol

.............................................................................................................................................. .12 0.20 0.28 0.39 0.48 0.55 0.62 0.68 Isobutanol

.............................................................................................................................................. 0.05 0.10 0.19 0.37 0.55 0.73 0.91 1.09 n-Butanol

................................................................................ 0.09 0.22 0.42 0.84 1.25 1.67 2.08 2.50 M

TBE

....................................................................................................................................................... 0.05 "0.12 0.23 0.45 0.68 0.90 1.13 1.35

15.1.2 Reproducibility-The difference between two single and independent results obtained by different operators working in different laboratories on identical material would in the long run, exceed the following values only in one case in twenty (see Table 3). Methanol 0.361 X(V+0.070) Isobutanol 0.179X (V+0.086) Ethanol 0.373X(V+0.000) sec-Butanol 0.277XV1 /2 Isopropanol 0.214X (V+ 0.150) tertButanol 0.178X (V+0.388) n-Propanol 0.163X (V+0.026) n-Butanol 0.415X(V+0.020) MTBE 0.244X(V+ 0.028) where V is the mean volume percent.

15.2 Bias-Since there is no accepted reference material suitable for determining bias for the procedure in this test method, bias cannot be determined.

For additional information please see ASTM Designation D 4815-88.
§52.137 Controls andprohibitionson gasoline volatilityand liabilityforviolations.

(a)Definitions.For the purpose of this section:

(1)Carrier means any distributor who transports or stores or causes the transportation or storage ofgasoline without taking title to or otherwise having any ownership ofthe gasoline, and without altering either the quality or quantity ofthe gasoline.

(2) Distributor means any person who transport or stores or causes the transportation or storage ofgasoline at any point between anygasoline refinery

or importer's facility and any retail outlet orwholesale purchaserconsumer's facility.

(3) Ethanolblending plantmeans any refinery at which gasoline is produced solely through the addition ofethanol to gasoline, and atwhich the quality and quantity ofgasoline is not altered in any other manner.

(4)Ethanolblendermeans any person who owns, leases, operates, controls, or supervises an ethanol blending plant.

(5)Fleetownermeans a registered

owner or lessee of at least twenty-five vehicles.

(6)Importermeans a person who Imports gasoline orgasoline blending stocks or components from a foreign country into the United States (including the Commonwealth ofPuertoRico, the VirginIslands, Guam, American Samoa, and the Northern Mariana Islands).

(7) Manufacturer's provingground

means a facility whose sole purpose is to develop complete advanced vehicles foran automotive manufacturer.

(8)MaricopaCountynonattainment

areameans the carbon monoxide nonattainment area in Maricopa County

as described in 40CFR 81.303, (i.e., the MAG urbanplanning area).

(9)Motorvehiclemeans any selfpropelled vehicle designed for transportation ofpersons orproperty on
a street orhighway.

(10) Refinermeans any person who
owns,leases, operates, controls, or supervises a refinery.

(11) Retailer means anyperson who
owns,leases, operates, controls, or supervises a retail outlet.

(12) Resellermeans any person who purchases gasoline identified by the corporate, trade, or brand name ofa refiner from such refiner or a distributor and resells or transfers it to retailers or wholesale purchaser-consumers displaying therefiner's brand, and whose assets or facilities are not substantially owned, leased, or controlled by such refiner.

(13) Wholesale purchaser-consumer

means any organization that is an ultimate consumer ofgasoline and which purchases or obtains gasoline from a supplier for use in motorvehicles and receives delivery of thatproduct into a storage tank of at least 550-gallon capacity substantially under the control ofthat organization.

(b) Prohibited Activities.Except as provided under paragraph (c) ofthis section, during theregulatory control periods no refiner, importer, distributor, reseller, carrier, retailer or wholesale purchaser-consumer shall sell, offer for sale, dispense, supply, or offer for supply, forthe refueling ofmotor vehicles within the control area, gasoline whose Reid vapor pressure exceeds the applicable standard. In addition, all gasoline which is consumed in a motor vehicle operated by a fleet

owner within the control area shall not exceed the applicable standard. As used in this section "applicable standard"

means the standard listed in this paragraph for the timeperiod in which gasoline is intended to be dispensed to motor vehicles. As used in this section, "regulatory control period" means the following period: October 1,1991 to March 31, 1992and each October I to March 31 period thereafter.

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AppcBLE STANDARDS

StaeOct Nov. Dwc Jan. Feb. Mwch

ftroaa-Madcope CO NonatiM Area

............................... . 10.0 10.0 10.0 10.0 10.0 10.0

(c)Exception toparagraph (b) ofthis section.It shall be allowable to offer for sale, dispense, supply, or offer for supply within the Maricopa nonattainment area gasoline whose Reid Vapor pressure exceeds the applicable standard to a manufacturer's proving ground.

(d)Determination ofCompliance. Compliance with the standards listed in paragraph (b) ofthis section shall be determined by use of one of the sampling methodologies specified In appendix D to 40 CFR 80 and one ofthe testing methodologies specified in appendix E to 40 CFR 80.

(e)Liability.Liability for violations of paragraph (b) of this section shall be determined according to the provisions ofparagraphs (g) through (m) ofthis section.

(f) Special provisions foralcohol blends.

(1) Any gasoline which meets the requirements ofparagraph [f)(2) ofthis section and which is marketed in accordance with the requirements of paragraph (f)(3) ofthis section shall not be inviolation ofthis section ifitsReid
vapor pressure does not exceed the applicable standard in paragraph (b) of this section by more than one pound per square inch.

(Z)In order to qualify for the special regulatory treatment specified in paragraph (f}(1) of this section, gasoline
must contain at least 7.3 percent ethanol (by volume). The ethanol content of gasoline shall be determined by use of

one ofthe testing methodologies specified in appendix F to40 CFR 80. The maximum ethanol content of gasoline shall not exceed any applicable waiver conditions under section 211(f)(4) ofthe Clean Air Act.

(3) In order to qualify for the special regulatory treatment specified in paragraph (f)(1) of this section.gasoline
must be marketed in accordance with each ofthe following requirements:

(I)Each gasoline pump stand from which such gasoline is dispensed at a retail outlet or wholesale purchaserconsumer facility shall be affixed with a legible and conspicuous label which
states thatthe gasoline dispensed from the pmp contains ethanol and the percentage concentration of ethanol by volume as well as a notice that the gasoline is oxygenated and will reduce carbon monoxide emissions from motor vehicles.

(ii) Eachinvoice, loading ticket, bill of lading, delivery ticket and other document which accompanies the shipment ofsuch gasoline shall contain

a legible and conspicuous statement that the gasoline being shipped contains ethanol Also included on such documents shall be the percentage of ethanol in theblend (byvolume) and the percentage ofoxygen (by weight). Such documents shall be retained by distributors, resellers, carriers, retailers, and wholesale purchaser-consumers for at least one year, and shall be available forinspection by theAdministrator or his authorized representative during such period.

(g)ViolationsatRefineriesor Importer Facilities. Where a violation of the applicable standard set forth in paragraph (b)of this section is detected at a refinery that Is not an ethanol blending plant orat an importer's facility, therefiner or importer shall be deemed in violation.

(h) ViolationsatCarrierFacilities. Where a violation ofthe applicable standard set forthin paragraph (b) of this section is detected at a carrier's facility, whether in a transport vehicle, ina storage facility, or elsewhere at the facility, the following parties shall be deemed In violation:

(1)The carrier,except as provided in paragraph (m)(1)ofthis section; and

(2) The refiner (ifhe is not an ethanol blender) atwhose refinery the gasoline

wasproduced or theimporter at whose facility the gasoline was imported. except as provided inparagraph (m)(2) ofthis section; and

(3) The ethanol blender (ifany) at whose ethanol blendingplant the gasoline was produced, except as provided in paragraph (m)(6) ofthis section.

(I) ViolationsatBranded Distributor

orReseller Facilities, orEthanol BlendingPlants.Where a violation of the applicable standard set forth in paragraph (b) ofthis section is detected at a distributor facility, a reseller facility, or an ethanolblending plant which is operating under the corporate, trade, orbrand name ofa gasoline refiner or any ofits marketing subsidiaries, the following parties shall be deemed in violation: (1) The distributor orreseller, except

as provided in paragraph (m)(31 of this section;

(2) The carrier (ifany), if the carrier caused the gasoline to violate the applicable standard;

(3) The refiner under whose corporate, trade, orbrand name (or that ofany of its marketing subsidiaries) the distributor,reseller, or ethanol blender is operating, except as provided in paragraph (mX4) of this section; and

(4) The ethanol blender (ifany) at whose ethanol blending plant the gasoline was produced. except as provided in (m)(6) ofthis section.

(j) Violationsat Unbranded Distributor Facilities or

Ethanol BlendingPlants.Where a violation of the applicable standard set forth in paragraph (b) ofthis section is detected
at a distributor facility or an ethanol blending plant not operating under a refiner's corporate, trade, orbrand

name, orthat ofany of itsmarketing subsidiaries, the following parties shall be deemed in violation: (1) The distributor, except as provided in paragraph (m)(3) ofthis section:

(2) The carrier (ifany), ifthe carrier caused the gasoline toviolate the applicable standard:

(3) The refiner (ifhe is not an ethanol blender) at whose refinery the gasoline

was produced or the importer at whose import facility the gasoline was imported, except as provided in paragraph (m)(2) ofthis section: and

(4) The ethanol blender (ifany)at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (m)(6) ofthis section.

(k) ViolationsatBranded Retail Outletsor WholesalePurchaserConsumer Facilities. Where a violation ofthe applicable standard set forth in paragraph (b) ofthis section is detected
at a retail outlet or at a wholesale purchaser-consumer facility displaying the corporate, trade, or brand name ofa gasoline refiner or any ofits marketing subsidiaries, the following parties shall be deemed in violation:

(1) The retailer orwholesale purchaser-consumer, except as provided in paragraph (m)(5) ofthis section;

(2) The distributor and/orreseller (if any), except as provided inparagraph (m)(3) ofthis section; 

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(3)The carrier (ifany), ifthe carrier caused the gasoline to violate the applicable standard;

(4) The refiner whose corporate, trade,

orbrand name (orthat ofany ofits marketing subsidiaries] is displayed at the retail outlet orwholesale purchaserconsumer facility, except as provided in paragraph (m)(4) ofthis section; and

(5) The ethanol blender (ifany) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (m)(6) of this section.

(1)Violationsat Unbranded Retail Outletsor WholesalePurchaserConsumer Facilities. Where a violation ofthe applicable standard setforth in paragraph (b) of this section is detected
at a retail outlet or at a wholesale purchaser-consumer facility not displaying the corporate, trade, orbrand

name ofa refinery or any ofits marketing subsidiaries, the following parties shall be deemed In violation:

(1) The retailer or wholesale purchaser-consumer, except as provided in paragraph (m)(5) ofthis section;

(2) The distributor (ifany), except as provided in paragraph (m)(3) ofthis section;

(3) The carrier (ifany), ifthe carrier caused the gasoline to violate the applicable standard; and

(4) The ethanol blender (ifany) at whose ethanol blending plant the gasoline was produced, except as provided in paragraph (m)(6) of this section.

(m) Defenses.(1) In any case in which

a carrier would be in violation under paragraph (h)(1) ofthis section, the carrier shall not be deemed in violation ifhe can demonstrate:

(i) Bills of lading,invoices, delivery tickets, loading tickets or other documents from the refiner or importer
at whose refinery the gasoline was produced, the importer at whose facility the gasoline was imported, or the carrier, reseller, ordistributor from whom the gasoline was received, which represented to the carrier thatthe gasoline was in compliance with the applicable standard when delivered to the carrier; and

(ii) Evidence ofan oversight program conducted by the carrier, such as periodic sampling and testing of incoming gasoline, formonitoring the volatility ofgasoline stored or transported by that carrier; and

(iii) That the violation was not caused by the carrier or his employee or agent.

(2) In any case in which a refiner or importer wouldbe in violation under paragraphs (h)(2) or (j)(3) ofthis section, the refiner orimporter shall not be deemed in violation ifhe can demonstrate:

(i)That the violation was not caused by him or his employee oragent; and

(ii) Tests results, performed in accordance with the sampling and testing methodologies set forth in Appendices Dand E to40 CFR Part 80, which evidence that the gasoline determined to be in violation was in compliance with the applicable standard when it was delivered to the next party in the distribution system.

(3)In any case in which a distributor

or reseller would be in violation under paragraphs (i)(1), (j)(1), (k)(2), or (1)(2), of this section, the distributer or reseller shall notbe deemed in violation ifhe

can demonstrate:

(i)That the violation was not caused byhim or his employee or agent; and

(ii)Bills oflading, invoices, delivery tickets, loading tickets orother documents from therefiner at whose refinery the gasoline wasproduced, the importer at whose facility thegasoline

was imported, or a carrier, reseller or distributor fromwhom the gasoline was received, which represented to the distributor orreseller that the gasoline

was in compliance with the applicable standard when delivered to the distributor or reseller; and

(iii) Evidence of an oversight program conducted by the distributor orreseller, such as periodic sampling and testing of gasoline, for monitoring the volatility of gasoline that the distributor or reseller sells, supplies, offers for sale orsupply,

ortransports.

(4)In any case inwhich a refiner would be in violation underparagraphs (i)(3) or (k)(4) ofthis section, therefiner shall notbe deemed in violation ifhe

can demonstrate all ofthefollowing:

(i)Test results,performed in accordance with the sampling and testingmethodologies set forth in Appendices Dand E to40 CFR 80 at the refinery at which the gasoline was produced, which evidence that the gasoline determined to be in violation

was in compliance with the applicable standard when transported from the refinery; and

(ii) That the violation was not caused by him orhis employee or agent; and

(iii) That theviolation: (A) Was caused by an act in violation oflaw (otherthan the Act or this part),

or an act ofsabotage or vandalism, whether ornot such acts areviolations oflaw in the jurisdiction where the violation ofthe requirements of thispart occurred, or

(B) Was caused by the action ofa reseller, an ethanol blender,or a retailer supplied by such reseller or ethanol blender,in violation ofa contractual undertaking imposed by therefiner on such reseller orethanol blender designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing to insure compliance with such contractual obligation, or

(C)Was caused by the action of a retailer who is supplied directly by the refiner (andnot by a reseller), in violation ofa contractual undertaking imposed by the refiner on such retailer designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or

(D)Was caused by the action ofa distributor or an ethanol blender subject to a contract with therefiner for transportation ofgasoline from a terminal to a distributor, ethanol blender,retailer orwholesale purchaserconsumer, inviolation ofa contractual undertaking imposed by therefiner on such distributor or ethanol blender designed to prevent such action, and despite reasonable efforts by the refiner (such as periodic sampling and testing) to insure compliance with such contractual obligation, or

(E) Was caused by a carrier or other distributor not subject to a contract with therefiner but engaged by him for transportation ofgasoline from a terminal to a distributor, ethanol blender, retailer or wholesale purchaserconsumer, despite reasonable efforts by the refiner (such as specification or inspection ofequipment) to prevent such action, or

(F)Occurred at a wholesale purchaser-consumer facility: Provided, however,that ifsuch wholesale purchaser-consumer was supplied by a reseller orethanol blender therefiner must demonstrate that the violation couldnot have been prevented by such reseller's compliance with a contractual undertaking imposed by the refiner on such reseller as provided in paragraph (m)(4)(iii)(B) ofthis section.

(iv)In paragraphs (m](4)(iii)(A) through (E) of this section, the term "was caused" means that the refiner
must demonstrate by reasonably specific showings, by direct or circumstantial evidence, that the violation was caused ormust have been caused by another.

(5)In any case in which a retailer or wholesale purchaser-consumer would be in violation under paragraph (k)(1) or (1)(1) ofthis section, theretailer or wholesale purchaser-consumer shall not be deemed in violation ifhe can demonstrate that the violation was not caused by him orhis employee or agent.

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(6) In any case in which an ethanol blender would be in violation under paragraphs (h)(3), (i)(4), 

### )(4), (k)(5) or (1)(4) ofthis section, the ethanol blender shall not be deemed in violation ifhe

can demonstrate: (i)That the violation was not caused by him orhis employee or agent; and (ii) Bills oflading, invoices, delivery tickets, loading tickets orother documents from the refiner atwhose refinery the gasoline was produced, the importer at whose facility the gasoline

was imported, orthe carrier, reseller, or distributor from whom the gasoline was received, which represented to the ethanol blender that the gasoline to which ethanol was added was in compliance with the applicable standard when delivered to the ethanol blenders; and

(iii)Evidence ofan oversight program conducted by the ethanol blender, such

as periodic sampling and testing of gasoline, formonitoring the volatility of gasoline that the ethanolblender sells, supplies, offers for sale or supply, or transports; and

(iv)That the gasoline determined to be in violation contained no more than 10percent ethanol (by volume) when it

was delivered to the nextparty in the distribution system.

(7)In paragraphs (m)(1)(iii), (m)(2)i, (m)(3)(i), (m)(4)(ii), (m)(5), and (m)(6)(i) ofthis section the respective party must demonstrate byreasonably specific showings, by direct or circumstantial evidence, that it or its employee or agent did not cause the violation.
§52.138 Conformity procedures.

(a)Purpose. The purpose ofthis regulation is to provide procedures as part of the Arizona carbon monixide implementation plans for metropolitan transportation planning organizations (MPOs)to usewhen determining conformity of transportation plans, programs, and projects. Section 176(c) of the Clean AirAct (42 U.S.C. 7506(c)) prohibits MPOs from approving any project, program, orplan which does not conform toan implementation plan approved or promulgated under section 110.



### (b) Definitions. (1) Applicableimplementation planor applicable planmeans theportion (or portions) ofthe implementation plan, or mostrecent revision thereof, which has been approved under section 110 ofthe Clean Air Act,42 U.S.C. 7410, or promulgated under section 110(c) ofthe CAA, 42 U.S.C. 7410(c).

(2) Carbonmonoxidenational ambientair qualitystandard (CO NAAQS) means the standards for carbon monoxide promulgated by the Administrator under section 109,42 U.S.C. 7409, ofthe Clean Air Act and found in 40 CFR 50.8

(3)Causemeans resulting in a violation ofthe CONAAQS in an area which previously did not have ambient COconcentrations above the CO NAAQS.

(4) Contributemeans resultingin measurably higher average 8-hour ambient CO concentrations over the NAAQS or an increased number of violations ofthe NAAQS in an area which currently experiences CO levels above the standard.

(5)Metropolitan planning organization (MPO)means the organization designated under 23U.S.C. 134 and 23 CFR part 450.106.For the specific purposes ofthis regulation, MPO means either the Maricopa Association ofGovernments or the Pima Association ofGovernments.

(6)Nonattainmentareameans for the specific purpose ofthis regulation either "

the Pima County carbon monoxide nonattainment area as described in 40 CFR 81.303 or the Maricopa County carbon monoxide nonattainment area as described in 40 CFR 81.303 (i.e., the MAG urban planning area). (7) Transportation controlmeasure (TCM)means any measure in an applicable implementation plan which is intended to reduce emissions from transportation sources.

(8) Transportation improvement program(TIP)means the staged multiyear program oftransportation improvements including an annual (or biennial) element which is required in 23 CFR part 450.

(9) Unified planningworkprogramor "UPWP" means theprogram required by 23 CFR 450.108(c) and endorsed by the metropolitan planning organization which describes urban transportation and transportation-related planning activities anticipated in the area during thenext 1-to 2-year period including the planning work to be performed with federal planning assistance and with funds available under the Urban Mass Transportation Act (49 U.S.C.) section 9

or9A. UPWPs are also known as overall work programs or OWPs.

(c)Applicability. These procedures shall apply only to the Maricopa Association ofGovernments in its role

as the designated metropolitan planning organization for Maricopa County, Arizona, and the Pima Association of Governments in its role as the designated metropolitanplanning organization for Pima County, Arizona.

(d) Procedures. (1)Transportation Plansand Transportation ImprovementPrograms. (i)Documentation.TheMPOshall prepare foreach transportation planand program (except for the unified planning work program), as part oftheplan or program, a report documenting for each plan and program the following information:

(A) the disaggregated population projections and employment which were assumed in:

(1)the applicable plan, and (2)the transportation plan/program; (B) thelevels ofvehicle trips, vehicle miles traveled, and congestion that

were: (1)assumed in the applicable plan, and

(2)expected to result from the implementation ofthe plan'/program

over the period covered by the applicable plan considering any growth likely to resultfrom the implementation of theplan/program;

(C) for each major transportation control measure in the applicable implementation plan;

(1)the TCM's implementation schedule and, ifdetermined in the applicable plan,expected effectiveness in reducing CO emissions,

(2)the TCM's current implementation
status and, iffeasible, its current effectiveness in reducing CO emissions, and

(3) actions in theplan/program which may beneficially or adversely affect the implementation and/or effectiveness of the TCM;

(D)the CO emission levels resulting from the implementation oftheplan/ program over the period covered by the applicable plan considering any growth likely toresult from theimplementation ofthe plan/program; and

(E)the ambient COconcentration levels, micro-scale and regional resulting from the implementation ofthe plan/program over the period covered by the applicable planconsidering any growth likely to resultfrom the implementation of theplan orprogram.

(ii)Findings. Priorto approving a transportation plan/program, the MPO shall determine iftheplan/program conforms to the applicable implementation plan. In making this determination, the MPO shall make and support each ofthe following findings foreach transportation plan and program using the information documented inparagraph (d)(1)(i) ofthis section:

(A) that implementation of the transportation plan/program will provide for theimplementation ofTCMs in the applicable plan on the schedule set forth in the applicable plan; 

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### (B) thatCO emission levels, microscale and regional, resulting from the implementation ofthe plan/program will not delay attainment or achievement ofany interim emission reductions needed forattainment and/or interfere with maintenance ofthe CO NAAQS throughout the nonattainment

area duringthe period covered by the applicable plan; and

(C)that implementation ofthe plan/ program would not cause or contribute to a violation ofthe CO NAAQS anywhere within the nonattainment

area duringthe period covered by the applicable plan.

(2) Amendments toa Transportation Plan orTransportation Implementation Program.Priorto approving any amendment to a transportation plan or program, the MPO shall first determine that the amendment does not substantially change the information provided under paragraph (d)(1(i) of this section and does not change the findings in paragraph (d)(1)(ii) ofthis section with respect to the original plan

or program.

(3) Transportation Projects.As part of any individual transportation project approval made by the MPO, the MPO shall determine whether the project conforms to the applicable implementation plan using the following procedure:

(i)For projects from a plan and TIP that has been found to conform under procedures in paragraph (d)(1) ofthis section withinthe last three years or from a Plan orTIP amendment that has been found to conformunder procedures in paragraph (d)(2) ofthis section in the past three years, the MPO shall document as part ofthe approval document:

(A) theTIPproject number, (B) whether theproject is an exempt project as defined in paragraph (e) of this section; and

(C) whether the design and scope of the project has changed significantly from the design and scope of the project

as described in the conforming TIP:

(1) Ifthe design and scope ofthe project has not changed significantly, the MPO may find theproject conforming; or

(2)Ifthe design and scope ofthe project has changed significantly orthe design and scope ofthe project could notbe determined from the TIP,the MPO shall use theprocedures in paragraph (d)(3}(ii) ofthis section to determine iftheproject conforms to the applicable implementation plan.

(ii)For projects not exempted under paragraph (e) ofthis section and not in a plan ora TIP that has been found to conformunder procedures in paragraph (d)(1) ofthis section within the last three years:

(A) Documentation. The MPO shall document as partof the approval document foreach such project:

(1)the disaggregated population and employment projections, to the extent they are used in

(I"the applicable plan, and (i) designing and scoping the project; (2)thelevels ofvehicle trips, vehicle miles traveled, and congestion that are

(1)assumed in the applicable plan, and

(i) expected to result over theperiod covered bythe applicable plan from the construction oftheproject considering any growth likely to resultfrom the project;

(3) for each transportation control

measure in the applicable plan likely to be affected by theproject:

(i) its implementation schedule and expected emission reduction effectiveness from the applicable plan,

(b") its current implementation status and, iffeasible, its current effectiveness, and

(iii) any actions as part of theproject which may beneficially or adversely affect the implementation and/or effectiveness ofthe TCM;

(4)COemission levels which will result from the project over theperiod covered by the applicable plan* considering anygrowth likely to result from the project; and

(5)ambient CO concentration levels which willresult from theproject over the period covered by the applicable plan considering any growth likely to result from theproject. (B) Findings. Prior to approving any transportation project, the MPO shall determine iftheproject conforms to the applicable implementation plan. In making this determination, the MPO shall make and support the following findings for each project using the information documented inparagraph (d)(2)(ii)(A) of this section:

(1)that the project will provide for the implementation ofTCMs affected by the project on the schedule set forth in the applicable plan;

(2)that CO emission levels, microscale and regional, resulting from the Implementation ofthe project during the period covered by the applicable plan will not delay attainment or any required interim emission reductions and/or interfere with maintenance of the CO NAAQS in an area substantially affected by the project;

(3)that the project will not cause or contribute to a violation ofthe CO NAAQS during theperiod covered by the applicable plan near the project; and

(4)that the projected emissions from the project, when considered together with emissions projected for the conforming plan and program within the nonattainment area, do not cause the plan and program to exceed the emission reduction projections and schedules assigned to such plans and
programs in the applicable implementation plan.

(e)ExemptProjects. An individual project is exempt from the requirements ofparagraph (d) ofthis section ifit is:

(1) located completely outside the nonattainment area;

(2] a safety project which is included in the statewide safety improvement
program, will not alter the functional traffic capacity or capability ofthe facility being improved, and does not adversely affect the TCMs in the applicable plan;

(3) a transportation control measure from the approved applicable plan: or

(4) a mass transit project funded under the Urban Mass Transportation Act, 49 U.S.C. [FR Doc. 91-2809 Filed 2-8-91; 8:45 am]

BILUNG CODE 6560-50.-U

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