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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 of the 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. EPA is taking

this action solely to comply with the

Ninth Circuit Court of Appeals order in

Delaney v. EPA, 898 F.2d 687 (9th Cir.

1990). This court order as amended

required EPA to disapprove the Arizona

CO SIP and to promulgate a FIP by

January 28, 1991.

As part of the FIP, EPA is

promulgating two rules for Maricopa

nonattainment area. Together, these

rules will require all gasoline sold in the

area between October 1 and March 31,

starting October 1, 1991, to contain a

minimum oxygen content of 2.7 percent

oxygen by weight and have a volatility

of no 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 of the CO NAAQS by

late 1991 and maintain the standard for

at least 10 years. No similar measures

are being promulgated for Pima 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 CO NAAQS. Finally, the FIP

contains conformity and contingency

plans for both Maricopa and Pima

Counties as required by the Delaney

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 of that proposal.

Readers are referred to that notice for

further information. EPA proposed this

FIP in direct response to the order of the

Ninth Circuit Court of Appeals in

Delaney v. 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, the new plans must

utilize all 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. at 695.

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.

For Maricopa 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 of 55 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 of 10

pounds per square inch (psi). EPA

proposed to allow gasoline suppliers to

sell fuels with a range of oxygen

contents so long as their sales-weighted

average oxygen content was 2.7 percent.

The proposed 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 of October 1, 1991

and, in combination with existing State

and local measures, would have resulted

in attainment of the 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 for both the Pima

and Maricopa CO nonattainment areas.

The conformity plan proposed

procedures for the Maricopa

Association of Governments and the

Pima Association of Governments 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 if it found either the Pima or

the Maricopa CO plans inadequate to

ensure maintenance of the CO NAAQS

and proposed a list of highway projects

which would be delayed while the plan

was being revised.

On October 16, 1990, EPA held 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 of gasoline or

oxygenates, and the general public. The

transcript from this public hearing has

been placed in the docket for this

rulemaking.

The comment period for the 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 or Act) I closed November 15,

1990. In all, EPA received 18 comment

letters from Arizona state and local

agencies, manufacturers and distributors

of gasoline or oxygenates, 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

I Unless otherwise noted, cites to the Clean Air

Act In this notice refer to the Act as amended in

1977.

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support document (TSD) for this

rulemaking.

II. Legal Context of this Rulemaking

In setting aside EPA's approval of the

Maricopa and Pima County CO SIPs, the

Ninth Circuit in Delaney determined

that the Agency's action did not comply

with the Clean Air Act as amended in

1977, 42 U.S.C. 7401 et seq. 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 the plan, the court

found the deadlines of the 1977

amendments to be absolute:

We believe that the only reasonable

interpretation of the 1977 amendments is that

if the 1982 deadline that Congress specified is

not met, the national ambient air quality

standards must be attained as soon as

possible with every available control

measure, including those that the EPA

identified in its criteria for approving 1982

plans. 898 F.2d at 691.

In its opinion, the court stated that

"[w]e, and the EPA, are bound by the

statutory scheme until Congress alters

that scheme." (Emphasis added). 898

F.2d at 691.

On November 15, 1990, the President

signed into law the Clean Air Act

Amendment of 1990 Public Law No.

101--549. That legislation

comprehensively revises the Clean Air

Act based, in part on the widespread

failure of the states to meet the Act's

attainment requirements. EPA believes

that as a result of the 1990 Amendments

to the CAA, it no longer has the

statutory authority to disapprove the

Maricopa and Pima County CO SIPs and

to promulgate FIPs in their place as

required by the Delaney order. EPA

discussed its legal interpretation of the

1990 Amendments as they apply to

Delaney in 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 its order in light of

EPA's interpretation of the 1990

Amendments. The court has not acted

upon this motion; therefore, EPA must

comply with the standing court order in

Delaney at this time.

The Ninth Circuit's order requires EPA

to disapprove the Arizona CO SiPs and

promulgate a FIP in accordance with the

Clean Air Act as amended in 1977 and

with EPA guidance issued pursuant to

that law. EPA's October 10, 1990, notice

of proposed rulemaking (NRPM) was

issued on that basis.2 Therefore, today's

'EPA did attempt, to the extent possible and

consistent with the court's order, to tailor its

proposal to reflect the relevant provisions of the

CAA amendment bills then pending before the U.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 1987 CO SIP revisions to

the Tucson Air Planning Area (Pima

plan), 53 FR 30220, and the 1987

Maricopa Association of Governments

(MAG) Carbon Monoxide Plan and 1988

Addendum (MAG plan), 53 FR 30224.

The Ninth Circuit in Delaney vacated

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 for failure to

include additional measures, beyond

those already included as part of the

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, EPA is taking final action

to disapprove only the attainment

demonstration portions of the MAG and

Pima plans, rather than the individual

control measures that serve to

strengthen the SIP.8

In its Delaney opinion, the court also

determined that EPA 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 of the MAG CO

plan.

In the conclusion and order portion of

the opinion, the court stated that "[tihe

new plans must 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, EPA is today also taking final

action to disapprove the contingency

provisions of the Pima CO plan. The

Pima plan did not contain conformity

provisions.

The above final disapproval actions

are undertaken solely to comply with

the Delaney court's finding that the

Arizona plans do not fully comply with

House of Representatives 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 on which EPA relied in its

proposal.

3 In a separate notice, published on January 28,

1991, EPA took action to restore, as approved parts

of the Arizona SIP, the individual control measures vacated by the Ninth Circut in the Delaney order.

the Clean Air Act as amended in 1977

and EPA guidance issued pursuant to

that law.

IV. Attainment and Maintenance of the

CO NAAQS in Maricopa County

A. Air Quality Modeling

EPA revised the air quality modeling

for Maricopa County using a modified

rollback analysis based on ambient air

quality monitoring data from the

previous two years and the latest traffic

forecasts available. The October 10,

1990 NPRM contains an extensive

discussion of EPA's modeling approach.

See 55 FR 41204, 41207. This modeling

analysis showed that, with the existing

control strategy, the Maricopa area

would not achieve the CO NAAQS until

sometime in the 1994/95 CO season.

EPA received only minor comments

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. The final TSD contains

a full discussion of the comments

received on the modeling and EPA's

responses.

B. Analysis of Available Measures

1. Summary of the Proposal

In Delaney v. EPA the court ordered

EPA to "utilize all available measures to

attain the ambient air quality standard

for carbon monoxide as soon as

possible." EPA interpreted the court test

to require a demonstration of attainment

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 the Delaney test to

Arizona, EPA screened a list of 55

measures for the candidate measures

which it could effectively implement in

Maricopa County. Next, EPA selected

from this set of candidate measures, the

subset of measures which were

necessary to attain as soon as possible.

The resulting subset of measures was

considered to be the "all available

measures" required by Delaney.

EPA developed a list of six criteria on

which it judged whether a measure was

a candidate for availability. These

criteria were derived from either Clean

Air Act 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 of the

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measure in Maricopa County, the

potential adverse social and economic

impacts of the 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 in the NPRM at 55 FR 41204,

41210 (October 10, 1990).

The list of the 55 measures and the

results of this screening for the first

three criteria can be found in the

Appendix to this notice. Detailed

information of the results of the

screening for each measure is contained

in the final TSD for this rulemaking.

Upon conclusion of the screening,

sixteen measures listed in Table 5 of the

NPRM at 55 FR 41204, 41212 (October 10,

1990). Next, each of the candidate

measures was evaluated to determine if

it would assist the area in attaining as

soon as possible. Two measures, the

oxygenated fuels program at 2.7 percent

oxygen and a wintertime gasoline

volatility limit of 10 psi, were found to

be available and to result in attainment

as soon as possible. The implementation

of the 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 of that

analysis.

The need to include All Available

Control Measures in the FIP

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 that both the Delaney order and

EPA's 1979 SIP guidance required

implementation plans to include

measures going beyond the bare

minimum thought to be necessary at the

time of plan preparation because of the

fallibility of attainment demonstrations.

Finally, ACLPI claimed that EPA's

rejection of measures 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 of the necessity for all available

measures without the modifying

phrases: that are necessary for

attainment by a date certain (e.g.,

December 31, 1987), as expeditiously as

practicable, or--in the case of the court

order-as soon as possible. Expeditious

attainment serves as the ultimate

criterion for determining if an 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 Delaney v. 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 of additional control measures

if the SIP is found inadequate to provide

for attainment because of errors in the

SIP including 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 it found 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, it does not believe that the CAA.

its policies, or the Delaney order

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's guidance on CAA section

172(b)(2), justify the conclusion that

these measures are not "reasonably

available." See Delaney v. EPA, 898 F.2d

at 692 citing EPA guidance in 44 FR

20375 (April 4, 1979).

EPA 's Authority to Order the State to

Implement SpecificMeasures

Comments. ACLPI believed that EPA

can and must include in the Arizona FIP

every measure that would be available

to state and local governments in

adopting a SIP. ACLPI argued that, given

the supremacy of federal law and

regulation, EPA cannot take the position

thatthe Clean Air Act precludes 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 of FIP promulgation

as a surrogate for state inaction.

Response. As noted in the NPRM,

EPA's authority to require states to

legislate or expend funds as part of a

FIP is unclear. In challenges to EPA's

attempt to do just that in several FIPs in

the early 19708, several courts of

appeals held that EPA could not

constitutionally do so. See, e.g., Brown

v. EPA, 521 F.2d 827 (9th Cir. 1975),

vacated on other grounds, 431 U.S. 99

(1977), "Brown I" In addition, in a

subsequent case decided after passage

of the 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

implement vehicle inspection and

maintenance programs. Brown v. EPA,

566 F.2d 665 (9th Cir. 1977), vacated on

other grounds, 431 U.S. 99 (1977),

"Brown I7".

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

Antonio Metropolitan Transit Authority,

469 U.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, it is clear that

Brown I would be decided differently.

Although Brown II was 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 would reach on the statutory

issues in Brown II today, even in the

absence of the 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 of EPA's authority

to impose transportation control

measures in the Arizona FIP remains at

best unclear.

EPA need not, however, resolve this

difficult question of legal authority at

this time. Were EPA to decide now that

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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 of December 31, 1991.

However, it would probably take EPA

most of the eleven months remaining

before that date to promulgate such

regulations, in light of the fact that EPA

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 to produce

attainment "as soon as possible" as

required by the Delaney court.

Screening Criteria

a. General Comment

Comment. ACLPI stated that EPA's

criteria for screening out TCMs create

unjustified hurdles to adoption of new measures--hurdles that are directly

contrary to the Act.

ACLPI also asserted that EPA has

offered no explanation whatsoever of

why it believes the Agency lacks legal

authority or resources or technical

feasibility for implementation.

Response. The process used by EPA

to screen measures for potential

implementation is a reasonable method

of assuring that focus is placed on measures that can and should be

implemented. It does the public no good

for EPA to pursue 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 to judge 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 of all measures screened which

it could potentially promulgate and

implement if they were found to be

necessary to bring about attainment as

soon as possible.

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 realistic prospect of

adequate funding for them, section

172(b)(7) and section 110(a)(2)(F). The

same standards apply to EPA when

promulgating FIP measures under

section 110(c).

Because of the number of measures

and the complexity of the issues

involved, EPA only summarized the

results of the screening in the NPRM and

placed the detailed discussion of each

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" (Docket No. 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 is in the

TSD is stated at 55 FR 41204, 41212

(October 10, 1990. Copies of the TSD

were made available to the public at

several locations in both Pima and

Maricopa Counties as well as EPARegion 9 and EPA-Washington. All

locations were listed in the NPRM, see

55 FR 41204. Explanations of why EPA

believes it has questionable authority or

lack resources or why EPA believes the

measure is not technically feasible are

discussed for each measure in the TSD.

b. Legal Authority

Comments. ACLPI stated that EPA

lists 23 control strategies as having "questionable" legal authority including

a number of section 108(f) measures,

which are presumed to be reasonably

available, yet has failed to meet its

burden of demonstrating that the

measures are unavailable on the ground

of lack of legal authority. ACLPI also commented that EPA

cannot reject any of the other measures

identified in appendix A based on lack

of legal authority unless the Agency can

identify a valid, articulable basis for

concluding that legal authority does not

exist.

Finally, ACLPI claimed that even if

EPA has some valid 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 of 18 transportation

control measures (TCMs). The listing of

a TCM in section 108(f)(1)(A) does not

bestow upon a measure any other

special meaning under the CAA. In fact,

the designation of the TCMs in section

108(f) as presumptively "reasonably

available control measures" was a

policy decision on the part of EPA and

not a requirement of the CAA; therefore,

the mere listing of a measure in section

108(f) does not assure that EPA has legal

authority for it. In addition, EPA's

designation of the section 108(f) TCMs

as "reasonably available" is a

presumption and is open to state (and

thus EPA within a FIP rebuttal on a

case-by-case basis. See 44 FR 20372,

20377 (April 4, 1979) and 46 FR 7182,

7187 (January 22, 1981). EPA has

rebutted the availability of most of the

section 108(f) measures for the Maricopa

FIP. For no 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 that it could not reject any

of the measures in the Appendix based

on lack of legal authority unless the

Agency could identify 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. If a measure with

questionable legal authority was

rejected, it was rejected based on

grounds other than legal authority.

Finally, even if EPA believed that use

of its sanction powers were appropriate

in this situation, sanctions are not a

control measure and at best do not

ensure a particular set of controls will

be adopted by the state. Even under

sanctions, the state retains a wide

degree of latitude to impose controls

that meet the requirement of the CAA

for expeditious attainment.

c. Lack of Resources

Comment-: ACLPI asserted that the

method used by EPA to calculate the

maximum resources for implementation

of a FIP in Maricopa County is irrational

because It fails to take account of vast

differences in the severity of air

pollution problems in different cities,

and differences in the need for EPA

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 of its resources.

ACLPI also claimed that EPA's

reliance on the "lack of resources"

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

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factor is arbitrary, capricious, and

entitled to no deference.

Response. ACLPI is correct that EPA

did not weigh its determination of the

resources available to implement a CO

FIP for Maricopa County with regard to

either the severity of the pollution

problem (including the number of

NAAQSs being violated, the peak

concentrations experienced, or the

number of violations recorded)--a fact

EPA points out in the NPRM-or the

need for federal intervention. If EPA 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 for CO. Many

areas of the country are considered to

have significantly worse CO pollution

than Maricopa County. These areas

include Los Angeles. New York, and

Denver, all of which have larger

populations, higher peak CO

concentrations, and/or greater numbers

of CO violations. In addition, all violate

more than one NAAQS.

The Maricopa area and the State of

Arizona have implemented one of the

best overall CO control strategies in the

country. The'area has an oxygenated

fuels program, one of the best inspection

and maintenance programs in the

nation, and a travel reduction programmost of which meet or exceed the

requirements for moderate CO areas

with Maricopa County's design value

(12.6 ppm) to comply with the new Clean

Air Act Amendments of 1990. Few other

CO nonattainment areas have programs

that are as comprehensive or as

effective; therefore, the need for federal

intervention in the Maricopa area for

CO attainment when compared to other

nonattainment areas nationwide is

relatively minor.

The distribution of section 105 grants is not based solely on policy choices of

the Agency. The Clean Air Act

constrains the distribution of funds. For

example, section 105(b), which

authorizes the distribution of air

pollution grants and is the largest source

of federal funds for air quality programs, requires the Administrator, in

establishing regulations for the granting

of section 105 grants, to give due

consideration to (1) the population, (2)

the extent 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

state receive less than one-half of I

percent of all section 105 grants. EPA disagrees that it arbitrarily

applied the "lack of resources" 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 which require

large amounts of EPA funds for

implementation are generally

unavailable to EPA. "Technological

fixes" (e.g., fuel measures and I/M

program enhancement improvements)

generally shift the implementation

burden to the manufacturer or car

owner, the regulatory agency's costs are

limited to enforcemenL This shift

naturally makes these measures less

costly and, therefore, more available to

EPA.

d. Technical Feasibility

Comments. ACLPI argued that EPA

had wrongly listed measures as being of

unclear feasibility even though there can

be "no serious question" of the

technological availability of most of the

measures on EPA's list because almost

all are either listed in section 108(f) of

the CAA or have already been

implemented in one or more cities

throughout the country.

ACLPI also claimed that the

requirement that a measure "materially"

reduce CO emissions to be considered

feasible is at best illegally vague and at

worst a direct violation of the Act's

requirement to adopt 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 feasibility of each TCM must

be considered in light of the current.and

future transpbrtation system in

Maricopa County to determine if the

measure could be implemented and

would in fact reduce CO emissions in

Maricopa County." 55 FR 41204,41211

(October 10, 1990).

EPA agrees that many of the 55

measures it screened are listed in CAA

section 108(f) or that many have already been implemented in one or more cities

in the country, but strongly disagrees

with the assumption that this

demonstrates the technical feasibility of

a measure for Maricopa County. The

effectiveness of each section 108(f) TCM

is dependent on the transportation and

land-use system within which it is

implemented. For example,

improvements in pedestrian amenities

will be much more effective at reducing

trips in a city such as San Francisco

with its high densities, short distances

between activity centers, and limited.

high-cost parking than they will 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 Air Quality in

Maricopa and Pima CountiesApplicability of Transportation Control

Measures" [November, 1986), the

success of a TCM can be predicated on

certain key factors characteristic of an

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 or has been

implemented elsewhere is the starting

point for evaluating the measure for

Maricopa, but it is not the end point that

finds the measure is appropriate for

Maricopa.

It should also be noted that the

Maricopa area has already implemented

many of the measures on the list

including several that EPA has listed as

having questionable technical feasibility

such as park-and-ride lots, one-way

streets, and on-street parking

restrictions. In reviewing measures

already being implemented by the State

and local governments, the Agency was

interested in the incremental effect of

EPA enhancing these measures. A

finding of questionable or negative

technical feasibility for these measures

was based on the belief that EPA could

not enhance the measure beyond its

existing level, not on the belief that the

measure is ineffective as Implemented in

Maricopa County.

Finally, many of the section 1081

measures have long lead times for

implementation. For example, transit

improvements such as the expansion of

the bus fleet (which requires the

purchase of new buses) can take well

over a year to implement. Given that the

FIP projects attainment in less than one

year from promulgation, many of the

section 108(f) measures could not be

implemented prior to the attainment

date and therefore not necessary for

attainment as soon as possible.

In the manner that EPA used it in the

NPRM, "materially" means a reasonable

degree Of certainty that some level-no

matter how slight--of emission

reductions will occur from

implementation of the measure by EPA.

EPA disagrees that the CAA requires

implementation of measures which do

not reduce emissions. Such measures

would not be considered either "reasonably available" or "available" to

attain as soon as possible.

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e. Socio-Economic Impacts

Comments. ACLPI believed that EPA

wrongly used the standard of socially or

economically disruptive, draconian, and

absurd to screen out measures and

states that the Agency did not identify

which measures it rejected (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 it was not congressional intent to

require absurd, socially or economically

disruptive, or draconian measures. See

the approval of the Maricopa SIP, 53 FR

30224, 30233 (August 10, 1988), the

ANPRM for South Coast, 53 FR 49494,

49509 (December 7, 1988), and Delaney

v. EPA, 898 F.2d at 692 citing EPA

guidance in 44 FR 20375 (April 4, 1979).

ACLPI provides no reasons to lead EPA

to reconsider this belief. In fact,

Congress required nonattainment plans

to include the identification and

analysis of the air quality, health,

welfare, economic, energy, and social

effects of the 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 of economical

or social disruptiveness; however, these

criteria, when added to the findings on

other criteria, caused two measures, "mandatory no-drive-days" and

"relocation of major traffic generators,"

to be 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

itself to quantification; it is best defined

by example. Examples include gasoline

or fuel rationing, directed source

closures or relocations, or mandatory

widespread driving restrictions.

C. Federal Measures

As discussed above, EPA's evaluation

of potential control measures indicated

that just two measures, an oxygenated

fuels program at 2.7 percent oxygen and

a wintertime gasoline volatility (RVP)

limit of 10 psi, when combined with

existing State and local programs are sufficient to bring about attainment in

Maricopa County by December 31, 1991.

EPA proposed both these measures on

October 10, 1990 and received

considerable comment on them. See 55

FR 41204, 41213 for a discussion of the

proposed oxygenated fuels program and

55 FR 41204, 41220 for a 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 a minimum oxygen content of

2.7 percent oxygen and to have a RVP

level of no more than 10 psi. Gasoline

blended with ethanol at 2.7 percent

oxygen and above is granted a RVP

exemption of 1 psi. 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 of each

measure, a summary of the comments

received, and the Agency's response to

those comments are given below.

1. Oxygenated Fuels Program

Summary of 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 of 2.7 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 motor vehicles. Also,

because Arizona statute already

mandates an oxygenated fuels program

(at a minimum oxygen content of 2.3

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 of the 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 of 2.7 percent oxygen

in lieu of the averaging and trading

scheme discussed in the NPRM.

primarily because of the 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 FIP will be in effect for only

one year before Arizona must submit

regulations for the 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 of marketable oxygen credits

from gasolines with oxygen contents

higher than 2.7 percent by weight to

offset the sale or use of gasoline with a

lower oxygen content. EPA believes that

the additional time granted by the new

CAA amendments will help assure the

development of an 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 for the 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 for the 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 of October 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.

EPA recognizes 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 of up to 2.9 percent

oxygen by weight. This will offset the

negative effects of dilution and density

upon the oxygen content of gasoline

blends during transportation. No such

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discretionary policy is specifically

needed for the other common oxygenate,

ethanol, because this compound may be

legally blended at concentrations as

high as 10 percent by volume (i.e., 3.7

percent oxygen by weight).

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 latter requirement 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 for use at manufacturers'

proving grounds and motor vehicle

racing events. Again, this provision 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 in a motor vehicle operated

by a fleet owner within the

nonattainment area to contain not less

than 2.7 per cent oxygen by weight.

Finally, no changes were made to the

test procedures for the determination of

oxygen level and they are being

promulgated as proposed.

Response to Comments

a. Effective Date

Proposal Summary. EPA proposed to

implement the oxygenated fuels program

on October 1, 1991. The Agency also

asked for comments regarding the

possibility of an earlier effective date.

Comments. The Renewable Fuels

Association (RFA) stated that the

incremental oxygenate demand

associated with the proposed

implementation date of October 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 if the same

held true for other types of oxygenates,

e.g., MTBE.

The Atlantic Richfield Company

(ARCO), the major ethanol blender in

Maricopa County, expressed concern

over implementing the program earlier.

Specifically, the company commented

that gasoline suppliers have already

established contracts for oxygenates

this winter and must be given a

reasonable amount of time to negotiate

additional oxygenate supplies at a

reasonable price. ARCO further

indicated that gasoline suppliers are

already somewhat at the mercy of the

oxygenate suppliers with respect to

available supply, and that mandating

additional oxygen in gasoline on a short

term basis could increase demand

relative to supply. The company noted

that this would substantially increase

the cost of incremental supplies not

already negotiated.

No comments were received from

MTBE blenders regarding the

implementation date for the program.

Response. EPA does not anticipate

that the proposed date of October 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 with moving 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 is available for a

smooth and efficient transition to the

higher oxygen level.

In considering the feasibility of an

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 of ethanol

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

of this 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 of the

current winter CO period 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 of the 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

date of October 1, 1991, as originally

proposed.

b. Averaging Option

Proposal Summary. EPA proposed

two compliance options for parties

subject to the oxygenated fuels

regulations: a minimum oxygen content

of 2.7 percent or an averaging and

trading program with the oxygen content

target of 2.7 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 not be locked out of the

oxygenate market under such a scheme

as it could potentially be under a 2.7

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 that 30-day period.

Comments. The comments received

were overwhelmingly against the

proposed use of an averaging scheme as

a means of complying with the oxygen

content standard. Many reasons were

given including:

* Arizona already has a successful

program in place using a minimum

oxygen content;

* Only ethanol blenders would be

generating oxygen credits;

9 The activities of credit brokers and

traders would go unregulated;

* Labeling would be impossible under

an averaging scheme;

* A thirty-day averaging period

would be too short, - If older cars were to receive the

lower oxygenated fuels, the effect on

emissions could be very detrimental.

Response. EPA believes an averaging

program is highly desirable and

workable; however, because of the

adverse comment and the very short

promulgation schedule for this rule, the

Agency is adopting a minimum oxygen

content standard at this time and

delaying the adoption of an averaging

and trading program until it promulgates

a national averaging and trading

program as required under the Clean Air

Act Amendments of 1990.

The new Clean Air Act Amendments

will require that all CO non-attainment

areas with a design value of 9.5 or

greater adopt and implement in 1992 an

oxygenated fuels programs requiring 2.7

percent oxygen on the average. The new

Amendments also require the Agency to

promulgate by August 15, 1991, guidance

on the use of marketable oxygen credits

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 of an effective

federal averaging and trading program.

In 1992, the Maricopa non-atainment

area will be subject to the CAA

requirement for a 2.7 percent

oxygenated fuels program complete with

an averaging program; therefore, the

oxygenated fuels rule being promulgated

today shall be in effect for only one year

before it is superseded by the national

program for averaging and trading.

c. Minimum Oxygen Content and

Blending Tolerance

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 content by 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 of test precision, the industry-accepted analytical

tolerance for oxygen content in fuel is

0.2 percent. This view 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

test reproducibility.

Response. The Agency recognizes that

by setting the minimum oxygen content

at 2.7 percent, it is in effect setting the

minimum requirement at the highest legally-permissible concentration

allowed in unleaded gasoline for the

most common oxygenating compound,

MTBE. Under a recently-issued revised

interpretive rule on substantially similar

fuels, fuels blended with MTBE may contain up to 2.7 percent oxygen by

weight, regardless of the blend content

necessary to achieve that measurement.

EPA also recognizes that through the

effects of density and dilution, the

original blend oxygen content may

decrease from the time of production to

the time of delivery at the retail outlet.

The Agency does not agree with the

comments suggesting that fuels which

fall below the mandated 2.7 percent

minimum be allowed to avoid penalty.

Therefore, in order to preserve the CO

emission reductions which have been

identified as necessary for the Maricopa

non-attainment area, EPA intends to

exercise discretion in enforcing the - maximum MTBE limit by allowing a

blending tolerance of up to 2.9 percent

oxygen by weight. This blending

tolerance is necessary due to the

negative effects of dilution and density

on oxygen content which occur when

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 MTBE blends of

2.9 percent oxygen by weight. No such

discretionary policy is specifically

needed for the other common oxygenate,

ethanol, because this compound may be

legally blended at concentrations as

high as 3.7 percent oxygen by weight

(i.e., 10 percent ethanol by volume).

d. Labeling

Proposal Summary. The NPRM called

for pump stands to be labeled only with

the type of oxygenate contained in the

blend. Invoices which accompany the

fuel from its point of origin would

contain additional information

concerning oxygenate content.

Comments. A number of different

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 of the

blends by weight, is irrelevant and will

serve only to confuse consumers.

On the other hand, the Maricopa

Association of Governments (MAC)

believed that information on the oxygen

content by volume is necessary because

of automobile manufacturer's warranties

and the limitations they place on use of

oxygenated fuels.

Response. In this final rule, EPA is

calling for pump outlets to be labeled

with oxygenate type and the maximum

blend percentage of that oxygenate by volume (e.g., "This fuel contains up to

15% MTBE.") Labels shall also contain a

statement that the gasoline is

oxygenated and will reduce carbon

monoxide emissions from motor

vehicles. (This latter requirement is

consistent with the new CAA

requirements for winter oxygenate

programs.) Travel manifests and

invoices will be required to also contain

information on the type of oxygenate,

the percentage of that oxygenate by volume, and the percentage of oxygen

by weight contained in the blend.

As to the warranty question, it is

improper for manufacturers to fail to

honor warranties based on the use by

consumers of legal, EPA-waivered fuels.

Once this FIP rule has been

promulgated, the Agency will inform

vehicle manufacturers by letter of the

new blending tolerance of 2.9 percent

oxygen for MTBE.

e. Exemption for Off-Highway Motor

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 or uses were proposed.

Comments. The Arizona Department

of Environmental Quality (ADEQ

commented that the State had found it

desirable to exclude certain special.

classes of motor 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 in EPA's final rulemaking.

Response. It seems reasonable that

EPA should grant this exemption. Much

of the non-oxygenated fuel (e.g., aviation

fuel) will be burned outside of the

boundaries of the nonattainment area.

For the non-oxygenated gasoline

consumed within the area, the Agency

believes that any air quality effect

would be negligible because of the small

amount of fuel involved. Also, the

exemption appears appropriate from a

technical perspective because at least

some of these 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 of oxygenated fuel, sold from

October 1 through March 31 in the

Maricopa County nonattainment area,

for the fueling of motor vehicles. The

term "motor vehicle" is defined as "any

self-propelled vehicle designed for

transporting persons or property on a

street or highway," CAA section 216(2).

Therefore, the use of oxygenated 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.

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2. Wintertime Gasoline Volatility Limit

Summary of Final Rule

The Agency is promulgating a Reid

vapor pressure (RVP) limit of 10 psi 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 for this 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 of October 1 to March 31

thereafter. The Agency does not believe

an earlier effective date is technically

feasible.

EPA is 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 in gasoline.) The

exemption will help ensure the

continued availability of ethanol blends

in the Maricopa area, maintain

competition between oxygenates in the

marketplace, and provide consumers

with a choice of oxygenated 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. Effective Date

Proposal Summary. EPA proposed to

limit the RVP of gasoline sold in the

Maricopa County nonattainment area to

a maximum of 10 psi during the winter

months beginning on October 1, 1991.

The Agency noted that most 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 of the oil

companies expressed concern that

controlling the RVP of gasoline 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 of gasoline being distributed

throughout the combined marketing area

of the 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 of October 1991, if addditional

tankage indeed proved necessary. They

suggested that two options existed

under this scenario. First, EPA could

provide additional leadtime for facilities

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 of the

South Coast FIP proposal, 55 FR 36458

(September 5, 1990).

Response. The Agency finds the oil

industry comments inconclusive due to

the lack of substance. No details were

provided to support. the industry claims.

Furthermore, none of the 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 of a change in

the RVP level of gasoline in Maricopa

County.

To better understand the technical

issues involved, EPA undertook a limited investigation of the refinery

storage and pipeline distribution system

for southern California refineries. The

Agency also relied on its past

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 other gasoline 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 of lease agreement.

The Agency feels that the ability to

produce and segregate special

oxygenated gasolines should generally

apply to the RVP requirement as well.

Furthermore, any refiner 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.

EPA understands 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 is not to

suggest that supplying Maricopa County

with a special low volatility gasoline

may not be difficult in at least some

instances. However, the Agency

believes most, if not all, of the refineries

and the pipeline company have the

capability to accommodate two different

types of base gasoline within the

existing capacity and operating practice

of the 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 be justified 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 of the 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 1 through 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 that low volatility gasoline is

necessary in Maricopa County for the

entire six month period, as proposed, In

order to attain compliance. Beyond

asking for a shorter compliance period,

no commenters indicated that RVP

control was not necessary during this

period. In addition, EPA reminds the

commenters that the emission control

requirements of Arizona are not

necessarily related to the air quality

needs of southern California. Finally,

EPA will shortly be withdrawing its

proposed South Coast FIP. The district

court order requiring the promulgation of

this FIP has recently been vacated.

Nonetheless, EPA's review of the

pipeline distribution system also

revealed that the pipeline, which

supplies Arizona along with parts of

southern California, currently accepts

on 10 psi RVP gasoline for transport

during October and March as a result of

the pipeline company's compliance

strategy with the current summertime

volatility standards. Therefore, for all

practical purposes, it appears Arizona

already receives 10 psi gasolines in

October and March even in the absence

of a regulatory requirement. Of course,

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 VP Exemption

Proposal Summary. Oxygenated fuels

are made by adding either alcohol (e.g.,

ethanol) or ether compounds to typical

gasoline. The use of alcohol increases

the volatility of the final oxygenated

blend beyond that of the base gasoline.

This results in an RVP boost of

approximately 0.8 psi under the

conditions of the proposal. Ether

blending agents have no significant

effect on this fuel characteristic. The

higher RVP of ethanol blends acts in the

opposite direction of the oxygen content

in reducing CO emissions. Therefore,

ethanol and ether blends with the same

oxygen content will exhibit different

clean air potentials.

The Agency discussed the loss of air

quality benefits in the proposal which

could occur under an averaging program

if the market share of ethanol blends in

Maricopa County was large. However,

EPA concluded that such a situation

was unlikely and that the potential

adverse air quality effect of ethanol

blends with somewhat higher volatilities

could be tolerated in the attainment

demonstration. Based on these

considerations, the Agency proposed to

provide a 1 psi RVP allowance from the

otherwise applicable wintertime RVP

standard for ethanol blends of 3.5

percent oxygen and above by weight (9

percent ethanol and above by volume).

Comments. The only negative

comment on the proposed RVP

exemption came from Texaco. The

company stated that the exemption

should not be provided. Texaco also

noted that if the exemption were

granted, it should be allowed only for

full ethanol blends, as proposed (i.e., 3.5

percent by weight]. No explanation for

these positions were provided.

The remaining commenters, ARCO

and RFA. supported the exemption.

However, they asked for a 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 ether blends

with 2.7 percent oxygen may result in

the elimination of ethanol from the

marketplace. RFA also argued that the

lower concentration would continue to

satisfy what it portrayed EPA's express

goal whereby fuels containing trace

amounts of alcohol are not eligible for

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 on RVP. Therefore, RFA

suggested there is no real difference

between the fuels in this regard.

Response. In evaluating the

appropriateness of providing an RVP

exemption for ethanol blends, 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 of the averaging

option. (No averaging 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

quality perspective, the previous

conclusion regarding the acceptability of

the exemption is unchanged.

Regarding the availability of

oxygenates, EPA has repeatedly stated

the desirability of providing consumers

with a choice of oxygenated fuels.

Maintaining this feature of the current

State program was underscored in

comments from the ADEQ. If the

increased cost of having to blend

ethanol at a level of 3.5 percent oxygen

Is prohibitive, as suggested by ARCO,

then this choice will not be available.

While EPA is unable to determine if this

would indeed occur as a consequence of

promulgating the exemption as

proposed, neither is the Agency able to

dismiss this as a likely outcome.

Nonetheless, granting the exemption for

ethanol blends meeting the minimum

oxygen content standard of 2.7 percent

by weight will obviously do the most to

ensure a continued choice of oxygenates

in the Maricopa market.

Turning to the issue of enforcement,

EPA indicated in the proposal that the

RVP exemption was patterned after a

similar provision for ethanol blends in

the national summertime RVP

standards. In fashioning the summertime

exemption, EPA explained that requiring

high levels of ethanol would aid

enforcement activities by assuring that

fuel containing only trace amounts of

alcohol did not qualify for this special

treatment. The Agency agrees with RFA

that lowering the minimum required

oxygen content from 3.5 percent (9

percent ethanol by volume) 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 I psi exemption from the

wintertime RVP standard for

oxygenated gasoline containing 7.3

percent ethanol by volume (i.e., 2.7

percent by weight).

d. R VP Control Effectiveness

Proposal Summary. EPA proposed a

10 psi maximum RVP in all fuel sold

during the mandate period in

conjunction with a 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 the proposal,

EPA requested comments on the

adequacy of the RVP control measures

at temperatures in the range of 40* to

70 0F.

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 of oxygenates. Graphical data

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from a recent but unpublished American

Petroleum Institute (API) study was

presented for ten late model vehicles

tested at 35, 55, and 80 °F on 9.0, 10.5,

and 13 psi gasoline and 9.0 and 13 psi

gasoline blended with 15 percent MTBE

by volume. These blend data indicated

equal average CO emissions 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 CO versus oxygen relationship

detailed in the EPA document

"Guidance on Estimating Motor Vehicle

Emission Reductions From the Use of

Alternative Fuels and Fuel Blends,"

Uanuary 1988) and (2) the CO versus

RVP relationship used in EPA's

MOBILE4 emission factor model as

detailed in Chapter 8 of the MOBILE4

supporting documentation. The effects

of oxygen listed in the Guidance

Document were based on testing at the

standard Federal Test Procedure(FTP)

temperature of 75 °F. The effects of RVP

on CO were based on testing of 9.0 psi

and 11.7 psi non-oxygenated gasolines

in 16 cars at 50 °F compared to these

and many other cars 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 °F provided by

commenters. While these data offer

some indication that the FIP benefit

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 to EPA'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 second highest 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 of the

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 of peak

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

period potentially underestimates the

benefit of reduced RVP on the ambient

CO concentrations in Phoenix. The

Agency was concerned with taking too

much emission reduction benefit for

RVP controls, and therefore chose to

make a number of conservative

assumptions for this phase of the

modeling analysis.

e. Driveability and Safety

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 of the

wintertime gasolines being marketed in

Arizona were already at or near the

proposed 10 psi RVP limit. Nonetheless,

EPA fully 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 the potential use of these fuels in

colder areas of the State.

Comments. Four general comments

were received regarding the potential

use of low 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. The lack of specific

comments on this issue make it difficult

to judge whether driveability and safety

are real concerns, 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 of today's Final Rule.

The Agency's analysis focused on the

potential use of 10 psi RVP gasolines in

colder areas of the State, since none of

the commenters specifically questioned

the adequacy of the previous analysis

for the Maricopa area, or the validity of

EPA's conclusions. As will be seen in

the following discussion, there does not

appear to be an unacceptable risk from

the potential use of these 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 of gasoline

that is currently being marketed in the

colder, northern areas of Arizona. The

analysis used Flagstaff as a reasonable

example of such an area because: (1)

This city experiences some of the

coldest wintertime temperatures in the

State, (2) historical temperature data are

readily available, (3) most of the

gasoline used in this region presently

originates from the Phoenix bulk

terminal, and (4) Flagstaff is within

reasonable driving distance of Phoenix

(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 be near, or in some cases below, the

proposed standard of 10 psi during the

coldest months of the year. If these fuels

were causing unacceptable driveability

or safety problems, the Agency would

expect to find some evidence of such

events in the public record. However,

despite the existence of low 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) of gasoline sold in

Flagstaff during extremely cold

temperatures, with those marketed in

other parts of the country under similar

conditions. (EPA originally used this

methodology in the national Phase II

RVP rulemaking to evaluate the

feasibility of reduced volatility fuel in

the summertime.) The comparison

revealed that the TVP of "controlled"

gasoline (10 RVP gasoline) in Flagstaff

under extreme climatic conditions was

generally equivalent to the minimum

TVP for other areas of the country.

Therefore, gasolines with volatility

levels similar to the controlled level of

10 psi RPV are already being marketed

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in colder areas of Arizona and appear to

be no worse than gasolines sold

elsewhere of the 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 of driveability or safety risk even

in colder areas of the State.

If ARCO or other gasoline suppliers

anticipate that driveability with

controlled gasolines may be

unacceptable, EPA notes that several

alternatives exist for providing higher

volatility fuels in areas outside of the

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. Of course, such higher RVP fuels

would need to be segregated from the

controlled gasolines. If inadequate

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 of oxygenate to otherwise low

RVP gasoline to increase the volatility of

the final blend. Even small amounts of

ethanol provide an RVP increase of 0.8

psi, and EPA approved methanol/

cosolvent mixtures can boost RVP by

about 2 psi. If additional 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

FIP proposal.

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 if necessary. Gasoline

could also be transported by truck from

refineries located in New Mexico and

Texas. These alternatives could increase

the price of gasoline for the affected

areas, although the effect should be

relatively small.

If any of the aforementioned options

are implemented, the only vehicles that

by necessity may be operating with low

volatility oxygenated gasoline in colder

areas of the State are those driven from

Phoenix to such final destinations. As

described above, this is similar to the

present in-use situation, because

gasolines with RVPs at or near the

controlled level of 10 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 10.0 psi will increase

the number of commuting vehicles using

such fuel, it will not fundamentally

change existing operating practices that

have proven acceptable in the past.

f. Exemptions

Based on ADEQ's comments

concerning exemptions under the

oxygenated fuels program, the Agency

believes that it is reasonable to provide

an exemption from the volatility control

program for manufacturer's proving

ground operations. The agency

recognizes the necessity to provide

reasonable testing flexibility for these

operators.

3. Cost of the Promulgated Control

Measures

EPA estimates that the increase from

2.3 to 2.7 percent oxygen content will

result in a 0.8 cents per gallon increase

in the price of gasoline. The estimate is

based on a 5.0 cents per gallon increase

in the price of gasoline 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 of the oxygenated

fuels program in the new Clean Air Act

Amendments. Using an alternative

analysis based on spot market prices of

MTBE and gasoline as of August 29,

1990, the price increase would be 0.66

cent per gallon. Based on expected 1991

gasoline consumption during the

oxygenated fuels season of 475.3 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 in the production of MTBE

and a trend toward more cost-efficient

refinery blending of oxygenates.

EPA estimates that the limit on

gasoline volatility would cost about 0.27

cents per gallon for each 1 psi reduction

in RVP. This number takes into account

both the increase in the cost of

producing lower RVP gasoline and the

savings in fuel economy associated with

this fuel. Based on an average RVP of

11.2 psi observed during the 1989/90

oxygenated fuels season, the net

increase in the price of gasoline as a

result of the RVP control program would

be 0.324 cents per gallon. Using the

Maricopa County gasoline consumption

figure given about, the incremental cost

of the RVP control program during the

first year should be $1.5 million.

EPA received no comments on the

above analysis. Several commenters did

raise the issue of costs 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 of Arizona'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, "...if an 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 and RVP limit rules

which EPA Is promulgating today as

part of the applicable implementation

plan for the Maricopa nonattainment

area. EPA, therefore, recognizes that

these federal rules will have the effect of

pre-empting existing State regulations

when these rules become effective on

October 1, 1991.

EPA wishes to make it clear that it

will honor any State regulations which,

when approved by the State legislature,

adopt any of the 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

of the SIP, EPA welcomes the return of

State and local enforcement.

D. Attainment and Maintenance

Demonstrations

The two measures being promulgated

today, a 10-psi RVP limit and an

increase in the oxygen content of fuels

from 2.3 percent to 2.7 percent,

combined with the existing SIP

measures including the Maricopa travel

reduction program (TRP), will provide

sufficient emission reductions to reduce

the ambient CO concentration in

Maricopa County to the level of the

NAAQS by the end of 1991. No other

combinations of potentially 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 of all

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control measures in place the day the

design value was recorded. In Maricopa

County in mid-December, 1989, the

oxygenated fuels program was operating

at 2.3 percent oxygen, the majority of the

TCMs which EPA credited in the 1987

MAG plan were in place, and the

voluntary no drive day program (the

Clean Air Campaign) was operating.

Because the design value reflects the

impact of all these programs, the

attainment demonstration implicitly

includes the benefits of these programs.

There are only three measures for

which EPA granted emission reduction

credit in its 1988 Maricopa SIP approval

that still can be 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 flow improvements (both

starting in 1995). For simplicity and

since attainment will occur by late 1991,

the attainment demonstration in Table I

considers only the TRP. HOV lanes and

freeway flow improvements, therefore

will provide additional reductions after

1995 to ensure 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 of 9 ppm in

late 1991 and maintain that standard

until after 2001. Under EPA regulation

and policy, an approvable

implementation plan must demonstrate

maintenance for the ten-year period

after plan approval. The proposed 10 psi

RVP limit and 2.7 percent oxygenated

fuels program, combined with

reductions from the travel reduction

program and other SIP measures, are

sufficient to demonstrate maintenance

for the required ten years.

Comments received by EPA on 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 do not affect the results

of the attainment demonstration. The

balance of the comments on the

attainment demonstration related to the

effectiveness of the RVP rule. These

comments are addressed in the

discussion of the RVP rule.

V. Attainment and Maintenance of the

CO NAAQS in Pima County

For the proposal, EPA reviewed recent

ambient air quality data for Pima

County, the 1987 Pima plan, and new

population and vehicle miles traveled

(VMT) projections for Pima County.

Monitored ambient air quality data

show that the area has not exceeded the

CO NAAQS in the last two years. The

1987 Pima plan projected attainment of

the CO NAAQS in early 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, and programmed

road improvements. The Pima plan did

not rely, for either attainment or

maintenance, upon any of the additional

measures being proposed In the plan

(e.g., the travel reduction program) or

later adopted by the State legislature

(e.g., the loaded-mode I/M program and

the oxygenated fuels program). Finally,

new population and VMT forecasts for

the Pima area have recently been

completed and are predicting

substantially less growth in 1990 and

future years than was assumed in the

1987 Pima plan.

Combined, these three factors argue

strongly that the 1987 Pima plan

accurately predicted that attainment

would occur in or before early 1990.

Therefore, EPA concludes today that

sufficient emission reductions have

already been achieved in Pima County

to assure that current CO emission

levels are below those needed to attain

the CO NAAQS and that no additional

federal measures are needed to ensure

attainment.

EPA performed hot-spot modeling

using the approved hot-spot model,

CAL3QHC, to determine if sufficient

measures were in place to ensure

maintenance in Pima County for the

required ten-year period after plan

promulgation, i.e., until early 2001. This

hot-spot modeling showed that with the

existing control strategy that ambient

CO concentrations for the next ten years

will be well below the CO NAAQS even

under "worst-case" meteorological

conditions. EPA, therefore, finds that no

additional controls are necessary for

maintenance in Pima 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 or maintain for at

least 10 years the CO NAAQS in Pima

County. Minor comments on the

modeling were given by the Pima

County Department of Environmental

Quality at the public hearing. These

comments, which are fully addressed in

the TSD, do not affect EPA's conclusion

that sufficient measures are in 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

list of transportation projects that would

be delayed while an inadequate SIP is

being revised and a process to adopt

measures to compensate for

unanticipated emission reduction

shortfalls. Both parts are triggered when

the EPA Administrator determines that

a SIP is inadequate and additional

emission reductions are necessary. See

48 FR 7187, 7192 (January 22, 1981). 4

To assure that the contingency

procedures in the Maricopa and Pima

implementation plans comply with

Agency guidance, EPA is today

promulgating contingency procedures

that will ensure that any emission

reduction shortfalls which may occur

during the ten-year period covered by

this FIP are identified and corrected. For

reasons discussed in the NPRM. the

Agency will use a certified violation of

the CO NAAQS occurring after

December 31, 1991 in Maricopa County or after January 28, 1991 in Pima County

as the initial trigger for its contingency

process. A certified violation not caused

by an exceptional event (as defined by

EPA guideline) would then trigger a

determination by the Agency of whether

additional control measures are

necessary to assure maintenance of the

4 The Clean Air Act Amendments of 1990 require

SIPs in general "to provide for the implementation

of specific measures to be undertaken if an area

fails to make reasonable further progress, or to

attain the [NAAQS] by the attainment date

applicable under [Part DI . . . [sluch measures

shall be included in the plan revision as contingency

measures to take effect in any such case without

further action by the State or the Administrator."

See new section 172(c)(9). This requirement is

substantially different from EPA's pre-amendment

policy for contingency procedures quoted in the

main text. Both because of the timing of rulemaking

(the proposal was published prior to the passage of

the amendments) and because the Ninth Circuit

specifically cited EPA's pre-amendment contingency

requirements as the missing element in the Axizona

SIPs, EPA is promulgating 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, the process 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 the Administrator that the

implementation plan is inadequate; a

violation of the CO NAAQS does not by

itself constitute a finding that the SIP is

inadequate.

A. Contingency Procedures

1. Response to Comments

Comments. Only the Arizona Center

for Law in the Public Interest {ACLPI)

commented on the contingency

procedures. ACLPI commented 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 this report

should trigger the delay of the listed

transportation projects and a FIP

revision (to be completed within 180

days).

Response. In developing the

contingency procedures, the Agency followed its 1982 SIP guidance. Under

the guidance, the contingency process is

to be initiated "when the Administrator

determines that a SIP is inadequate to

attain NAAQSs and that additional

emission reductions are needed." 46 FR

7182, 7187 (January 22, 1981), emphasis

added. A violation of the CO NAAQS

after the projected date of attainment is

an indication that the SIP may be

inadequate, not that the SIP is

inadequate. There are a number of

reasons why a violation may occur after

the projected date of attainment, not all

of which 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 be reviewed before a

determination of adequacy is made.

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 in the 1982 SIP guidance]

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 for public comment. It should be

noted that EPA's 1982 SIP guidance does

not give a time frame in which the

contingency process must be 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 of transportation 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 just monitors within

an EPA-certified network would be used

as the initial trigger for the 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

Finding of CO NAAQS Violation

After December 31, 1991 for the

Maricopa CO nonattainment area or

after January 28, 1991 for the 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

Guideline on the Identification and Use

of Air Quality Data Affected by

Exceptional Events, 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 of the

end of the 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 of the 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.

Determination of the Need for

Additional Measures

After making a finding that a CO

violation has occurred, the Agency shall

determine the cause of the violation by

determining the implementation status

of the plan control strategy and by

comparing the current emissions

inventory to the plan projections. EPA

shall work with the appropriate State

and local agencies in making this

determination.

(a) If incomplete implementation or

non-implementation of plan 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 of publication of the initial

NPRM, a notice of final 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 of highway

projects subject to delay and shall

initiate the delay of transportation

projects. Should the Agency find that no

additional measures are needed, the

NFRM shall contain this finding and

conclude the contingency process.

(b) If emission levels are found to be

at or below those projected as needed

for maintenance, the Agency shall

perform the air quality modeling

necessary to determine a new level of

emission reductions needed to maintain.

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 of publication of the initial

NPRM a notice of final 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 of highway

projects subject to delay and shall

initiate the delay of transportation

projects. Should the Agency find that no

additional measures are needed, the

NFRM shall contain this finding and

conclude the contingency process.

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Project Delay

Final notification by EPA In the

Federal Register that additional control

measures are necessary to maintain the

CO NAAQS in either Maricopa County

or Pima County shall trigger the

requirement to delay projects on the list

of projects with potentially adverse air

quality impacts appearing below or as

updated by the Agency through notice

and comment rulemaking. Under

Department of Transportation (DOT)

regulations at 23 CFR 770.9(e)(2), the

Federal Highway Administration

(FHWA) shall not authorize

construction of any project contained on

the contingency list.

Proposal of Additional Measures

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 55 FR 41204,

41210 (October 10, 1990) as modified in

today's notice.

Promulgation of Additional Measures

Within six months of the publication

of the proposal and after consideration

of all comments received, the EPA

Administrator shall sign a notice of final

rulemaking promulgating all additional

measures available to EPA which could

correct the emission reduction shortfall.

Publication of this final notice in the

Federal Register would lift the

requirement to delay transportation

projects.

B. List of Highway Projects Subject to

Delay

Given below are the lists of

transportation projects in Maricopa and

Pima Counties that will be delayed

under the contingency process if EPA

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) for FY 1989/90-1993/94.

In the NPRM, EPA listed projects by

their TIP number. The Agency, however,

did not make clear in the proposal that

the listing of the TIP number was done

only as a convenient means of

identifying the projects. It is the project

description and not the TIP number

which defines which projects will be

delayed. To make this point clear, TIP

numbers have been removed from the

lists. The breaking up of a listed project

into several projects or repackaging the

project with other projects will not

remove It from the list of projects

subject to delay.

1. Response to Comments

EPA received considerable comment

on the lists of transportation projects

potentially subject to delay.

Comment ACLPI objected to the

exemptions used by EPA to exclude

projects from the list stating that the

exemptions are inconsistent with EPA

guidance and the Clean Air Act These

exemptions are listed in the NPRM at 55

FR 41204,41224 (October 10, 1990).

Response. EPA believes it acted

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 should not be listed.

The first guide was the language from its

1982 SIP guidance 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 the language

relating to highway funding sanctions in

section 176[a) of the CAA. Section

176(a) prohibits the Secretary of

Transportation from approving "any

projects or awardling] any grants under

title 23, United States 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 delay projects 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 which projects are

exempt from highway sanctions, they do

not effectively change the exemptions

used by EPA to develop the list of

transportation projects.

Comment. MAG commented that EPA

provides no process for (1) removing

projects from the list if they are later

shown not to have adverse air quality

impact or 12) updating the list as new

TIPs are adopted.

Response. In response to these

comments and a similar one from

ACLPI, EPA has revised its contingency

procedures to include, in the initial

NPRM which announces a violation of

the CO NAAQS, an updated list of

highway projects for public comment.

This updated list would be based on the

latest TIP and the public, including state

and local agencies, would have 30 days

to provide comments. This comment

period would provide an opportunity to

submit new information on the air

quality impacts of listed projects.

Comment MAG requested removal of

seven of the nine projects listed for

Maricopa County because either the

project had been deprogrammed from

the TIP, the project includes HOV lanes,

or the project has beneficial air quality

impacts.

Response. On reviewing MAG's

request, EPA has removed two projects

from the list because they have already

been funded and therefore EPA could

not delay them in the future should

contingency be triggered. The Agency,

however, has retained the remaining

projects because either the project could

eventually be reprogrammed or the

Agency did not agree that there is a

conclusive demonstration that the

project has air quality benefits. The two

projects with HOV lanes were retained

because the lanes are a small part of

major interchange improvements and

the 1.7 miles of lanes 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 CO modeling upon

which EPA based its proposed FIP, and

finally each project (because of its

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 of conformity with itself."

Response. The fact that projects are

contained in a TIP which has been

found to conform to the SIP is irrelevant

to their listing as subject to delay. When

MAG made its finding that the TIP in

which these projects are listed

conformed, it was stating only that the

TIP did not Impede the implementation

of adopted TCMs. See The 1989/90

through 1993/94 Transportation

Improvement Program for the Maricopa

County Area, MAG, September 27,1989.

page 16. MAG's conformity finding on

this TIP states nothing about the

potential air quality implications of the

projects and therefore cannot be used as

grounds that a project does not have

potentially adverse air quality impacts.

The delay of projects would only be

triggered if the implementation plan was

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found to be inadequate to attain or

maintain the CO NAAQS. Under these

circumstances, all projects with

potentially adverse air quality impacts

need to be reviewed to determine if

additional measures are available that can offset their potential to increase

emissions. This remains true whether or

not the project was included in modeling

used in the plan. EPA agrees that as federally-funded projects these projects will undergo

environmental review and welcomes

this as another means to ensure air

quality is considered as part of these

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.

The inclusion of a project in the

modeling assumptions used for a

implementation plans no longer

constitutes grounds for finding that a

project conforms. The CAA

Amendments of 1990 defines conformity

to mean conformity to an

implementation plan's purpose of

eliminating or reducing the severity and

number of violations of the NAAQS and

achieving expeditious attainment of the

standards and assuring that federal

activities will not cause or contribute to

any new violation of any standard in

any area, increase the frequency or

severity of any existing violation of any

standard in any area, or delay timely attainment of any standard or any

required interim emission reductions or

other milestone in any area. Therefore

the delay of a project, even if that

project is assumed in the SIP baseline,

cannot automatically put the FIP "out of

conformity with itself' because the

conformity of a project requires a

showing beyond merely "assumed in the

SIP." It should also be remembered that

the projects are listed because of their

potentially adverse air quality impacts, i.e., they may cause or contribute to

NAAQS violations or increase

emissions that may delay required interim emission reductions. These

projects, therefore. may have difficulty in being found in conformity.

Comment. MAG commented that EPA

should take into account existing environmental assessments or other

site-specific documentation regarding the short or long-range impacts of the

listed projects in order to avoid

inadvertently delaying projects which

would improve or not harm air quality. Response. EPA would welcome an

opportunity to review an existing

environmental assessments and would • consider information in them when

considering whether to list a project

EPA, however, received no such

documents for this rulemaking. As

discussed above, should the contingency

process be triggered, EPA will propose

an updated list and provide MAG and

others the opportunity to submit

information (including existing

environmental assessments, etc.) on the

air quality impacts of the projects and to

request removal of projects which are

clearly demonstrated to have no adverse

impacts.

Comment. PAG found the "blanket

inclusion of 'capacity-enhancing'

projects" to be inappropriate in cases

where congestion is a major problem or

where emissions reductions are

substantial.

Response. EPA did not use the

criterion of "capacity-enhancement" to

arrive at its list of highway projects

subject to delay. 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 will remove it from the list. EPA

cannot remove a project simply because

it relieves congestion without the

demonstration that it also will reduce

emissions. PAG did not request the

removal of any specific project from its

list.

Comment. The Arizona Department of

Transportation requested that EPA not

have a list of projects subject to delay in

its FIP.

Response. The Agency does not

believe that it has the option to remove

the list of highway projects subject to

delay from this FIP. The Ninth Circuit's

order in Delaney requires EPA to

promulgate plans which contain

contingency provisions "in accordance

with [EPA's] guidelines." EPA guidance

clearly requires a list of highway

projects which will be delayed if the

Administrator finds the SIP inadequate

to attain the NAAQSs and additional

emission reductions are necessary.

Therefore, EPA is constrained by the

Delaney order and its existing guidance

to include a list of highway projects

subject to delay in the CO FIP it

promulgates for Arizona.

1. List of Projects Subject to DelayPima County

Project descriptions are from the

1989/90-1993/94 Pima County

Transportation Improvement Program,

Pima Association of Governments, 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,

construct east 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. List of Projects Subject to DelayMaricopa County

Project descriptions are from the

1989/90-1993/94 Maricopa County

Transportation Improvement Program,

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 to assure

conformity:

(1) "Administrative and technical

procedures and agency responsibilities for

ensuring in response to section 178(c) of the

Clear Air Act, that transportation plans,

programs, and projects approved by a metropolitan planning organization [MPO) are in conformance with the SIP," 46 FR 7182,

7187; and

(2) "Identifqicatloni, to the extent possible,

of the direct and indirect emissions

associated with major federal

actions, . . . that will take place during the

period covered by the SIP." 46 FR 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, or plan which does not

conform to the applicable

implementation plan approved or promulgated under section 110. Section

176(c) also prohibits any federal

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department, agency, or instrumentality

from taking supportive actions on any

activity that does not conform to a plan

approved or promulgated under section

110.

A. Conformity Procedures

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 Clear Air Act

Amendments of 1990. These new

amendments have more detailed

conformity requirements than the 1977

CAA amendments did. Section 176(c)(1)

of the amendments define conformity as

conformity to an implementation plan's

purpose of eliminating or reducing the

severity and number of violations of the

NAAQS and achieving expeditious

attainment of the standards and

assuring that federal activities will not

cause or contribute to any new violation

of any standard in any area, increase

the frequency or severity of any existing

violation of any standard in any area, or

delay timely attainment of any 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 is not

significantly different from that used by

the Agency to develop its proposed

regulations; however, EPA has

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 of Transportation (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 for Maricopa 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 of analysis and its cost as well as

the difficulty in performing the analysis

within the one-year cycle for TIP

preparation. EPA does not 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 of the

public to reasonably review conformity

findings. If MAG finds it too difficult to

comply with the conformity regulation

under an annual TIP cycle, MAG has the

option under the U.S. DOT regulations

of preparing TIPs on a biennial basis.

PAG also raised the issue of resources

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 of the air quality problem

experienced in the nonattainment area

and that the MPO will develop criteria

and procedures for determining where

projects within the plan/program may

exacerbate CO concentrations so as not

to have to model every link and/or

intersection.

ACLPI objected to three of the

exemptions provided in the proposed

regulation for project-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 for projects outside the

nonattainment area and specific safety

projects are unwarranted. EPA is

promulgating this conformity 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

is reasonable. 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 of the 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.

ACLPI also 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 to justify 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 of all 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 of the

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

to be used by MAG and PAG when they

make a conformity finding prior to

approving any transportation plan,

program, or project and do not apply to

other non-transportation-related federal

activities which these MPOs may

approve. 5 The scope of the 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 of Environmental

Quality (ADEQ) and the Pima County

Department of Environmental 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.

5 Although EPA's regulation, as required by the

1982 SIP guidance, only applies to MPO's approval

of transportation plans, programs, and projects, this

does not remove the requirement in CAA section

176(c) that federal departments, agencies, and

instrumentalities must determine conformity of their

actions or that MPOs must determine the conformity

of any non-transportation project that they may approve.

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Federal Reiister I Vol. 56. No. 28 I Monday, February 11, 1991 / Rules and Regulations 57

In determining the emission levels

expected from implementation of the

plan/program, the MPO should use the

same EPA-approved emission factor

model used in the applicable

implementation plan. Where the impact

of implemented TCMs are included in

calculating these emission levels, their

effectiveness should reflect their

updated effectiveness rather than their

effectiveness as assumed in the plan.

Under the conformity regulation, the

MPO is required to determine, using air

quality modeling, the micro-scale and.

where appropriate to the air quality

problem, regional ambient CO levels

which would result from implementation

of the plan/program during the period

covered by the applicable plan. The

MPO should develop and document

criteria and procedures for determining

where projects within the plan/program

may cause CO violations and/or

exacerbate CO concentrations already

above the standard and should use

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 the projects,

and the level of service 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 an implementation plan

approved or promulgated under CAA

section 110. Where an MPO cannot

make each of the findings under the

conformity regulation, it cannot approve

a plan, program, or project until it has

been modified so as to conform.

Modifications can include elimination of

the projects that cause the nonconformance, modifications to such

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. Identification of Emissions from

Federal Facilities

EPA's 1982 SIP guidance requires the

SIP to identify, to the extent feasible, the

expected emissions from federal

activities. The sole purpose of this

requirement is to ease the review of

federal conformity determinations by

state and local agencies. The lack of an

explicit identification in the SIP of

emissions from a federal activity does

not eliminate the requirement in section

176(c) of the CAA (as amended in 1977

and retained in the 1990 amendments)

that the federal agency affirm the

conformity to the SIP of any activities it

supports. Similarly, the failure of a SIP

to explicitly identify emissions from a

federal activity does not constitute

either an automatic finding of

conformity or of nonconformity for the

federal activity in question. It always

remains the duty of a federal agency to

make a determination of conformity for

its projects independent of what the SIP

may say about that project.

For the NPRM. EPA identified

potential future federal activities in the

Maricopa and Pima area during the tenyear period covered by the FIP. For this

final notice, EPA attempted to quantify

the emissions associated with these

activities. For most of the listed projects,

the Agency lacked the information

necessary to develop emission estimates

primarily because the project was not

well enough defined. in addition, many

of the 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.

Only ACLPI commented on the list of

federal activities. ACLPI listed a number

of federal actions it believed should be

on EPA's list of federal activities. These

listed activities include the sale of

properties by the Resolution Trust

Corporation, land exchanges by the

Bureau of Land Management, and

activities by the Arizona Department of

Environmental Quality (ADEQ) and the

Arizona Department of Transportation

(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 EPA had 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 of properties

by the Resolution Trust Corporation to

the list of federal activities for both

Pima and Maricopa Counties. EPA

contacted the Bureau of Land

Management during the proposal stage

and did not discover any pending or

anticipated land exchanges; therefore,

EPA has not added any BLM activities

to the list.

EPA believes that it was

Inappropriate to add the ADEQ

activities to the list because these state

activities are not federal actions which

should be subject to conformity. ACLPI

cannot turn state actions-ADEQ's

approvals of wastewater systems for

new subdivisions and issuance of water

pollution permits-into federal actions

simply on the grounds that ADEQ

receives general federal assistance

funds to administer these programs.

Under such administrative programs, it

is the state which makes the approval or

issues the permit rather than the federal

agency. Under ACLPI's broad

interpretation of section 176(c), every

action by a state or local agency that

receives any federal funding be subject

to conformity. This result clearly is not

in keeping with the language of section

176(c). Therefore, EPA believes that it

need not add these ADEQ activities to

its list of federal activities.

EPA agrees that some of the funds

that U.S. DOT provides to ADOT are

used for planning, research, and other

purposes, but is unsure how

transportation planning and research by

ADOT could contribute to increased

emissions until such plans and research

are converted to actual construction or

operational changes, actions which if

undertaken in either Maricopa or Pima

Counties would be programmed in a TIP

and therefore would undergo conformity

review. Therefore, EPA has not listed

these activities.

1. List of Federal Activities for Pima

County

Federal cy Federal activity

Dept. of Agricuture

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).

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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 of Federal Activities for Maricopa

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 ............................. Co nstruction of a new

wastewater treatment

plant '.

Rasolution Trust Sale of Property (See list In

Corporation. TSD).

I The NPRM erroneously listed the expansion of

four existing wastewater treatment plants.

VIII. Delegation of Substitution of FIP

Measures

The Administrator of the

Environmental Protection Agency has

the authority to delegate implementation

and enforcement of a FP measure to an Arizona State agency, to a regional

agency in Arizona or to a local

government within its jurisdictional

boundaries. Prior to any delegation, the

Administrator would have to determine

that the agency or jurisdiction

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 of Arizona may wish to

submit to EPA 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 SIP noted by the Ninth Circuit. As

stated by ADEQ in its comments on the

proposal, the development of an approvable SIP, consistent with the

Delaney order, will require much more than the adoption of the equivalent of

the oxygenated fuels and RVP limit rules

in this FIP. The State and its local

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 Act Amendments 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 Delaney decision 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, or investment.

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 for review 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

of this notice.

This rulemaking was also submitted

to the Office of Management 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 of the Regulatory

Flexibility Act requires that the

Administrator certify that regulations do

not have a significant impact on a

substantial number of small 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 of public refueling facilities) do

not constitute small entities. Second, the

geographic scope of the 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 of small entities

because of the limited capital

investment required.

XI. Reporting and Recordkeeping

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 of Information

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 of Subjects in 40 CFR Part 52

Air pollution control, Air quality plan,

Carbon monoxide, Mobile sources,

Reporting and recordkeeping

requirements.

Authority: 42 U.S.C. 7401-7462 (1989); Ninth

Circuit order in Delaney v. EPA. 898 F.2d 887.

Dated: January 28,1991.

William K. Reilly,

Administrator.

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Federal Register / Vol. 56, No. 28 / Monday, February 11, 1991 / Rules and Regulations 5477

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 on freeways ........................................

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

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

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

9. S gnal synchronl.......................................

10. Reversible lanes on arterial .................................. 11. One-way streets .............. . . ................

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

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

14. Bus pullouts In curbs ..............................................

15. Bicycle travel and support facilities .......................

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 patterns which support transit ................

37. Relocation of major traffic generators from

highly congested 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 vehicles which do not pass the I/M program.

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For the reasons set forth in the

preamble, Subpart D, Part 52,

Subchapter C, Chapter I of Title 40,

Code of Federal Regulations, is

amended as follows:

PART 52-APPROVAL AND

PROMULGATION OF

IMPLEMENTATION PLANS

Subpart D-Arizona

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401-7642.

2.40 CFR part 52 is amended by

adding § 52.124 as follows:

§ 52.124 Part D disapproval.

(a) The following portions of the

Arizona SIP are disapproved because

they do not meet the requirements of

Part D of the 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 CFR part 52 is amended by

adding new § § 52.136, 52.137, and 52.138

to subpart D to read as follows:

§ 52.136 Oxygenated fuels program.

(a) Definitions.

(1) Fleet owner means a registered

owner or lessee of at least tgwenty-five

vehicles.

(2) Maricopa County nonattainment

area means 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) Motor vehicle means any selfpropelled vehicle designed for

transportation of persons or property on

a street or highway. (5) Motor vehicle racing event means

a race that uses unlicensed vehicles

which are designed and manufactured

specifically for racing purposes and that

is conducted on a public or private

racecourse for the entertainment of the

general public. A motor vehicle racing

event includes practice, qualifying, and

demonstration laps conducted as part of

the activities related to a motor vehicle

race.

(b) Regulatory standard. Except as

provided under paragraph (c) of this

section, no person shall first introduce

into commerce within the Maricopa CO

nonattainment area ("control area")

during the period October 1, 1991, to

March 31, 1992. and each period of

October I to March 31 thereafter

("control period"), for the fueling of

motor vehicles, gasoline whose oxygen

content is less than 2.7 percent (by

weight), as determined pursuant to

paragraph (d) of this 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

by weight.

(c) Exceptions to paragraph (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, and oxygen

content calculations. (1) For the purpose

of determining compliance with the

standards listed in paragraph (b) of this

section, the oxygen content of gasoline

shall be determined by:

(i) Use of one of the sampling

methodologies specified in appendix D

of 40 CFR part 80 to obtain a

representative sample of the gasoline to

be tested;

(ii) Use of the testing methodologies

specified in appendix A of this section

to determine the mass concentration of

each oxygenate in the gasoline sampled;

and

(iii) Calculation of the oxygen content

of the gasoline sampled by multiplying

the mass concentration of each

oxygenate in the gasoline sampled by

the oxygen mass concentration of the

oxygenate set forth in paragraph (d)(2)

of this section.

(2) For purposes of this 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 of gasoline is sampled by

use of one of the methodologies set forth

in appendix D of 40 CFR part 80 and

tested by use of the test methodologies

set forth in appendix A of this section.

The gas chromatograph analysis

indicates that the gasoline sampled

contains an ethanol mass concentration

of 9.85% (0.0985). The oxygen contents of

the gasoline sampled is calculated as

follows:

Oxygen Content = (Ethanol Mass concentration in Gasoline

Sample) X (Oxygen Mass Concentration

of Ethanol) = (0.0985) X (0.3473)

=0.0342

= 3.42

(ii) Example 2. Assume that a batch of

gasoline is sampled by use of one of the

methodologies set forth in appendix D of

40 CFR part 80 and tested by use of the

methodologies set forth in appendix A of

this section. The gas chromatograph

analysis indicates 1hat the gasoline

sampled contains a methanol mass.

concentration of 4.50% (0.0450) and an

ethanol mass concentration of 2.25%

(0.0225). The oxygen content of the

gasoline sample is calculated as follows:

Oxygen Content = (Methanol Mass concentration in

Gasoline Sample) X (Oxygen Mass

Concentration of Methanol) + (Ethanol

Mass Concentration in Gasoline Sample) X (Oxygen Mass 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 from which gasoline is dispensed

at a retail outlet or wholesale purchaserconsumer facility in the control area

shall be affixed during the control

period with a legible and conspicuous

label which 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 of gasoline 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 does not 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 or his

authorized representative during such

period. (f) Prohibited Acts. Such violations

will include, but are not limited to:

(1) Selling supplying, offering for sale, offering for supply or otherwise 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 or wholesale purchaser-consumer

pump stand;

(3) Failure to properly label an invoice

or other gasoline delivery document.

Appendix A to § 52.136-Testing

Procedures

Method-ASTM Standard Test Method for

Determination of C, to C, Alcohols and

MTBE In Gasoline by Gas Chromatography

1. Scope.

1.1 This test method covers a

procedure for determination 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 and MTBE

are determined from 1.0 to 10 volume %.

1.3 Sl (metric] units of measurement

are preferred and used throughout this

standard. Alternative units, in common

usage, are also provided to improve the

clarity and aid the user of this test

method.

1.4 This standard may involve

hazardous materials, operations, and

equipment. This standard does not

purport to address all of the safety problems associated with its use. It is

the responsibility of the user of this

standard to establish appropriate safety and health practices and determine the

applicability or regulatory limitations

prior to use.

2. Referenced Documents.

2.1 ASTM Standards:

D4057 Practice for Manual Sampling of

Petroleum and Petroleum Product

D4307 Practice for Preparation of

Liquid Blends for Use as Analytical

Standards

D4626 Practice for Calculation of Gas

Chromatographic Response Factors

E260 Practice for Packed Column Gas

Chromatographic Procedures

E355 Practice for Gas Chromatography

Terms and Relationships

3. Descriptions of Terms Specific to

This Standard.

3.1 MTBE-methyl teriary butyl

ether.

3.2 Low Volume Connector--a

special union for connecting two lengths

of tubing 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 in gas

chromatography using capillary

columns. The split ratio is the ratio of

the toal flow of the carrier gas to the

sample inlet versus the flow of carrier

gas to the capillary column. Typical

values range from 10:1 to 500:1

depending upon the amount of sample

injected and the type of capillary

column used.

3.5 WCOT-abbreviation for a type

of capillary column used in gas

chromatography that is wall-coated

open tubular. This type of column is

prepared by coating the inside of the

capillary with a thin film of stationary

phase.

3.6 TCEP-1,2,3-tri-2-

cyanoethoxypropane-a gas

chromatographic liquid phase.

4. Summary of Test Method.

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 of any 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 are measured; and the

concentration of each component is

calculated with reference to the internal

standard.

5. Significance and Use.

5.1 Alcohols and other oxygenates

may be added to gasoline to increase

the octane number. Type and

concentration of various oxygenates are

specified and regulated to ensure

acceptable commercial gasoline quality.

Drivability, vapor pressure, phase

separation, and evaporative emissions

are some of the concerns associated

with oxygenated fuels.

5.2 This test method 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 in Table 1, and has a

column switching and backflushing

system. Carrier gas flow controllers

shall be capable of precise 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 of precise 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 of at

least 2 mm at a signal-to-noise ratio of at

least 5 to I for 0.005 volume %

concentration of an oxygenate.

6.1.3 Switching and Backflushing

Valve-A valve, to be located within the

gas chromatographic column oven,

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5480 Federal Register / Vol. 56, No. 28 / Monday, February 11, 1991 / Rules and Regu!a"lns

capable of performing the functions

described in section 11.0. The value

shall be of low 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 of the analyses used for the

development of Section 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

strongly recommended to ensure

repeatable switching times. Such a

device should be synchronized with

injection and data collection times. If no

such device is available, a stopwatch,

started at the time of Injection, should

be used to indicate the proper valve

switching time.

6.1.5 Injection System-The

chromatograph should be equipped with

a splitting-type inlet device. Split

injection is necessary to maintain the

actual chromatographed sample size

within the limits of column and detector

optimum efficiency and linearity.

6.1.6 Sample Introduction-Any

system capable of introducing 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 of 5 mV or less. Fullscale response time should be I a or less

with sufficient sensitivity and stability

to meet the requirements of 6.1.2.

6.2.2 Integrator or Computer--

Devices capable of meeting the

requirements of 6.1.2, and providing

graphic and digital presentation of the

chromatographic data are recommended

for use. 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 to that described in 6.3.1.1

can be used. The column shall perform

at the same temperatures as required for

the column in 6.3.2

6.3.1.1 TCEP Micro-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 0.14 to 0.15 g of 20% (mass/

mass) TCEP on 80/100 mesh

Chromosorb P(AW). This column was

used in the cooperative study to provide

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.) long by 0.53 mm

(0.021-in.) inside diameter fused silica

WCOT column with a 2.6 pm film

thickness of cross-linked methyl

siloxane. This column was used, in the

cooperative study to provide the

Precision and Bias data referred to in

Section 15.

7. Reagents and Materials.

7.1 Carrier Gas-Carrier gas

appropriate to the type of detector used.

Helium has been used successfully. The

minimum purity of the 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 of known purity and

free of the other components to be

analyzed.

Note 1: Warning-These materials are

flammable and may be harmful or fatal if

ingested or inhaled.

7.3 Preparation of Calibration

Blends-For best results, these

components must be added to a stock

gasoline or petroleum naphtha, free of

oxygenates (Warning-See Note 2).

Refer to Test Method D 4307 for

preparation of liquid blends. The

preparation of several different blends,

at different concentration levels

covering the scope of the method, is

recommended. These will be used to

establish the linearity of the component

response.

Note 2. Warning-Extremely flammable.

Vapors harmful if inhaled.

7.4 Methylene Chloride-Used for

column preparation. Reagent grade, free

of non-volatile residue.

Note 3: Warning-Harmful If inhaled. High

concentrations may cause unconsciousness or death.

8 Preparation of Column Packings.

8.1 TCEP Column Packing:

8.1.1 Any satisfactory method, used

in the practice of the art that will

produce a column capable of retaining

the C, to C, alcohols and MTBE from

components of the same boiling point

range in a gasoline sample. The

following procedure has been used

successfully.

8.1.2 Completely dissolve 10 g of

TCEP in 100 mL of methylene chloride.

Next add 40 g of 80/100 mesh

Chromosorb P(AW) to the TCEP

solution. Quickly transfer this mixture to

a drying dish, in a fume hood, without

scraping any of the residual packing

from the sides of the 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-packed TCEP

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 of silvered

wire, a small mesh screen or stainless

steel frit inside one end of the tube.

Slowly add 0.14 to 0.15 g of packing

material to the column and gently

vibrate to settle the packing inside the

column. When-strands of wire are used

to retain packing material inside the

column, leave 6.0 mm (0.25 in.) of space

at the top of the 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 Apparatus and

Establishment of Conditions.

11.1 Assembly-Connect the WCOT

column to the valve system using low

volume connectors and narrow bore

tubing. It is important to minimize the

volume of the chromatographic system

that comes in contact with the sample,

otherwise peak broadening will occur.

11.2 Adjust the operating conditions

to those listed in Table 1, but do not turn

on the detector circuits. Check the

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

system for leaks before proceeding

further.

11.3 Flow Rate Adjustment:

11.3.1 Attach a flow measuring

device to the column vent with the valve

in the RESET position and the pressure

to the injection port to give 5.0 mL/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 of 70

mL/min. Recheck the column vent flow

set in 11.3.1 and adjust if necessary.

11.3.3 Switch the valve to the

BACKFLUSH position and adjust the

variable restrictor to give the same

column vent flow set in 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 of 3.0 to 3.2 mL/

min at the detector exit. When required

for the particular instrumentation used,

add makeup flow or TCD switching flow

to give a total of 21 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 of the

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 of 0.23 min. With the

valve RESET, inject 39L of a 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 of benzene 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 of the

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 of the chromatogram.

When the valve BACKFLUSH is

switched too late, part or all of the

MTBE component is vented resulting in

an incorrect MTBE measurement.

12. Calibration and Standardization.

12.1 Identification-Determine the

retention time of each 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 of each oxygenate and of the

internal standard by either manual

method or electronic integrator.

Calculate the relative volume response

factor of each oxygenate, relative to the

internal standard. according to Test

Method D 4626.

13. Procedure.

13.1 Preparation of SamplePrecisely add a quantity of the internal

standard to an accurately measured

quantity of sample. Concentrations of I

to 5 volume % have been used

successfully.

13.2 Chromatographic Analysis--

Introduce a representative aliquot of the

sample, containing internal standard.

into the chromatograph using the same

technique as used for the calibration

analyses. An injection volume of 3 ,L

with a 15:1 split ratio has been used

successfully.

13.3 Interpretation of

Chromatogram-Compare the results of

sample analyses to those of calibration

analyses to determine identification of

oxygenates present.

TABLE 2.-RETENTION CHARACTERISTICS

FOR TCEP/WCOT COLUMN SET CONDITIONS AS IN TABLE 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 IN TABLE 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 of each

oxygenate peak and that of the internal

standard. Calculate the volume percent

of oxygenate as follows:

VsXPATXIoo

Vl -

PAsXSrxV 0

where:

V, = volume percent of oxygenate to be

determined,

Vs=volune of internal standard (tert-amyl

alcohol) added.

VG=volume of gasoline sample taken.

PAI=peak area of oxygenate to be

determined,

PA.=peak area of the Internal standard [tertamyl alcohol), and

S1=relative volume response factor of each

component (relative to the internal

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 of the

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, in the long run, in the normal and

correct operation of the test method

exceed the following values only in one

case in twenty (see Table 3).

Methanol 0.086X (V+0.070) Isobutanol

0.064 X (V + o.086)

Ethanol 0.083X(V+0.000) sec-Butanol

0.014XV112

Isopropanol 0.052X(V+0.150) tertButanol 0.052 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.

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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 0.214 X (V + 0.150) tertButanol 0.178X (V+0.388)

n-Propanol 0.163 X (V+0.026) n-Butanol

0.415X(V+0.020)

MTBE 0.244 X (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 and prohibitions on

gasoline volatility and liability for violations.

(a) Definitions. For the purpose of this

section:

(1) Carrier means any distributor who

transports or stores or causes the

transportation or storage of gasoline

without taking title to or otherwise

having any ownership of the gasoline,

and without altering either the quality or

quantity of the gasoline.

(2) Distributor means any person who

transport or stores or causes the

transportation or storage of gasoline at

any point between any gasoline refinery

or importer's facility and any retail

outlet or wholesale purchaserconsumer's facility.

(3) Ethanol blending plant means any

refinery at which gasoline is produced

solely through the addition of ethanol to

gasoline, and at which the quality and

quantity of gasoline is not altered in any

other manner.

(4) Ethanol blender means any person

who owns, leases, operates, controls, or

supervises an ethanol blending plant.

(5) Fleet owner means a registered

owner or lessee of at least twenty-five

vehicles.

(6) Importer means a person who

Imports gasoline or gasoline blending

stocks or components from a foreign

country into the United States (including

the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Northern Mariana Islands).

(7) Manufacturer's proving ground

means a facility whose sole purpose is

to develop complete advanced vehicles

for an automotive manufacturer.

(8) Maricopa County nonattainment

area means the carbon monoxide

nonattainment area in Maricopa County

as described in 40 CFR 81.303, (i.e., the

MAG urban planning area).

(9) Motor vehicle means any selfpropelled vehicle designed for

transportation of persons or property on

a street or highway. (10) Refiner means any person who

owns, leases, operates, controls, or

supervises a refinery. (11) Retailer means any person who

owns, leases, operates, controls, or

supervises a retail outlet.

(12) Reseller means any person who

purchases gasoline identified by the

corporate, trade, or brand name of a

refiner from such refiner or a distributor

and resells or transfers it to retailers or

wholesale purchaser-consumers

displaying the refiner'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 of gasoline and

which purchases or obtains gasoline

from a supplier for use in motor vehicles

and receives delivery of that product

into a storage tank of at least 550-gallon

capacity substantially under the control

of that organization.

(b) Prohibited Activities. Except as

provided under paragraph (c) of this

section, during the regulatory control

periods no refiner, importer, distributor,

reseller, carrier, retailer or wholesale

purchaser-consumer shall sell, offer for

sale, dispense, supply, or offer for

supply, for the refueling of motor

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 time period 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, 1992 and each October I to

March 31 period thereafter.

HeinOnline -- 56 Fed. Reg. 5482 1991
Federal Register / Vol. 58, No. 28 / Monday, February 11, 1991 / Rules and Regulations

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 to paragraph (b) of this

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 of Compliance.

Compliance with the standards listed in

paragraph (b) of this section shall be

determined by use of one of the

sampling methodologies specified In

appendix D to 40 CFR 80 and one of the

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

of paragraphs (g) through (m) of this

section.

(f) Special provisions for alcohol

blends.

(1) Any gasoline which meets the

requirements of paragraph [f)(2) of this

section and which is marketed in

accordance with the requirements of

paragraph (f)(3) of this section shall not

be in violation of this section if its Reid

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 of the testing methodologies

specified in appendix F to 40 CFR 80.

The maximum ethanol content of

gasoline shall not exceed any applicable

waiver conditions under section 211(f)(4)

of the 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 of the 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 that the 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) Each invoice, loading ticket, bill of

lading, delivery ticket and other

document which accompanies the

shipment of such 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 the blend (by volume) and the

percentage of oxygen (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

for inspection by the Administrator or

his authorized representative during

such period.

(g) Violations at Refineries or

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 or at an importer's

facility, the refiner or importer shall be

deemed in violation.

(h) Violations at Carrier Facilities.

Where a violation of the applicable

standard set forth in paragraph (b) of

this section is detected at a carrier's

facility, whether in a transport vehicle,

in a 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) of this section; and

(2) The refiner (if he is not an ethanol

blender) at whose refinery the gasoline

was produced or the importer at whose

facility the gasoline was imported.

except as provided in paragraph (m)(2)

of this section; and

(3) The ethanol blender (if any) at

whose ethanol blending plant the

gasoline was produced, except as

provided in paragraph (m)(6) of this

section.

(I) Violations at Branded Distributor

or Reseller Facilities, or Ethanol

Blending Plants. Where a violation of

the applicable standard set forth in

paragraph (b) of this section is detected

at a distributor facility, a reseller

facility, or an ethanol blending plant

which is operating under the corporate,

trade, or brand name of a gasoline

refiner or any of its marketing

subsidiaries, the following parties shall

be deemed in violation:

(1) The distributor or reseller, except as provided in paragraph (m)(31 of this

section;

(2) The carrier (if any), if the carrier

caused the gasoline to violate the

applicable standard;

(3) The refiner under whose corporate,

trade, or brand name (or that of any 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 (if any) at

whose ethanol blending plant the

gasoline was produced. except as

provided in (m)(6) of this section.

(j) Violations at Unbranded

Distributor Facilities or Ethanol

Blending Plants. Where a violation of

the applicable standard set forth in

paragraph (b) of this section is detected

at a distributor facility or an ethanol

blending plant not operating under a

refiner's corporate, trade, or brand

name, or that of any of its marketing

subsidiaries, the following parties shall

be deemed in violation:

(1) The distributor, except as provided

in paragraph (m)(3) of this section:

(2) The carrier (if any), if the carrier

caused the gasoline to violate the

applicable standard:

(3) The refiner (if he 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) of this section: and

(4) The ethanol blender (if any) at

whose ethanol blending plant the

gasoline was produced, except as

provided in paragraph (m)(6) of this

section.

(k) Violations at Branded Retail

Outlets or Wholesale PurchaserConsumer Facilities. Where a violation

of the applicable standard set forth in

paragraph (b) of this section is detected

at a retail outlet or at a wholesale

purchaser-consumer facility displaying

the corporate, trade, or brand name of a

gasoline refiner or any of its marketing

subsidiaries, the following parties shall

be deemed in violation:

(1) The retailer or wholesale

purchaser-consumer, except as provided

in paragraph (m)(5) of this section;

(2) The distributor and/or reseller (if

any), except as provided in paragraph

(m)(3) of this section;

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(3) The carrier (if any), if the carrier

caused the gasoline to violate the

applicable standard;

(4) The refiner whose corporate, trade,

or brand name (or that of any of its

marketing subsidiaries] is displayed at

the retail outlet or wholesale purchaserconsumer facility, except as provided in

paragraph (m)(4) of this section; and

(5) The ethanol blender (if any) at

whose ethanol blending plant the

gasoline was produced, except as provided in paragraph (m)(6) of this

section.

(1) Violations at Unbranded Retail

Outlets or Wholesale PurchaserConsumer Facilities. Where a violation

of the applicable standard set forth in

paragraph (b) of this section is detected

at a retail outlet or at a wholesale

purchaser-consumer facility not

displaying the corporate, trade, or brand

name of a refinery or any of its

marketing subsidiaries, the following

parties shall be deemed In violation:

(1) The retailer or wholesale

purchaser-consumer, except as provided

in paragraph (m)(5) of this section;

(2) The distributor (if any), except as

provided in paragraph (m)(3) of this

section;

(3) The carrier (if any), if the carrier

caused the gasoline to violate the

applicable standard; and

(4) The ethanol blender (if any) 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) of this section, the

carrier shall not be deemed in violation

if he 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, or distributor from

whom the gasoline was received, which

represented to the carrier that the

gasoline was in compliance with the

applicable standard when delivered to

the carrier; and

(ii) Evidence of an oversight program

conducted by the carrier, such as

periodic sampling and testing of

incoming gasoline, for monitoring the

volatility of gasoline 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 would be in violation under

paragraphs (h)(2) or (j)(3) of this section,

the refiner or importer shall not be

deemed in violation if he can

demonstrate:

(i) That the violation was not caused

by him or his employee or agent; and

(ii) Tests results, performed in

accordance with the sampling and

testing methodologies set forth in

Appendices D and E to 40 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 not be deemed in violation if he

can demonstrate:

(i) That the violation was not caused

by him or his employee or agent; and

(ii) Bills of lading, invoices, delivery tickets, loading tickets or other

documents from the refiner at whose

refinery the gasoline was produced, the

importer at whose facility the gasoline

was imported, or a carrier, reseller or

distributor from whom the gasoline was

received, which represented to the

distributor or reseller 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 or reseller,

such as periodic sampling and testing of

gasoline, for monitoring the volatility of

gasoline that the distributor or reseller

sells, supplies, offers for sale or supply,

or transports.

(4) In any case in which a refiner

would be in violation under paragraphs

(i)(3) or (k)(4) of this section, the refiner

shall not be deemed in violation if he

can demonstrate all of the following: (i) Test results, performed in

accordance with the sampling and

testing methodologies set forth in

Appendices D and E to 40 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 or his employee or agent; and

(iii) That the violation:

(A) Was caused by an act in violation

of law (other than the Act or this part),

or an act of sabotage or vandalism,

whether or not such acts are violations

of law in the jurisdiction where the

violation of the requirements of this part

occurred, or

(B) Was caused by the action of a

reseller, an ethanol blender, or a retailer

supplied by such reseller or ethanol

blender, in violation of a contractual

undertaking imposed by the refiner on

such reseller 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

(C) Was caused by the action of a

retailer who is supplied directly by the

refiner (and not by a reseller), in

violation of a 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 of a

distributor or an ethanol blender subject

to a contract with the refiner for

transportation of gasoline from a

terminal to a distributor, ethanol

blender, retailer or wholesale purchaserconsumer, in violation of a contractual

undertaking imposed by the refiner 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

the refiner but engaged by him for

transportation of gasoline from a

terminal to a distributor, ethanol

blender, retailer or wholesale purchaserconsumer, despite reasonable efforts by

the refiner (such as specification or

inspection of equipment) to prevent such

action, or

(F) Occurred at a wholesale

purchaser-consumer facility: Provided,

however, that if such wholesale

purchaser-consumer was supplied by a

reseller or ethanol blender the refiner

must demonstrate that the violation

could not 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) of this 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 or must 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) of this section, the retailer or

wholesale purchaser-consumer shall not

be deemed in violation if he can

demonstrate that the violation was not

caused by him or his 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) of this section, the ethanol blender

shall not be deemed in violation if he

can demonstrate:

(i) That the violation was not caused

by him or his employee or agent; and

(ii) Bills of lading, invoices, delivery

tickets, loading tickets or other

documents from the refiner at whose

refinery the gasoline was produced, the

importer at whose facility the gasoline

was imported, or the 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 of an oversight program

conducted by the ethanol blender, such

as periodic sampling and testing of

gasoline, for monitoring the volatility of

gasoline that the ethanol blender sells,

supplies, offers for sale or supply, or

transports; and

(iv) That the gasoline determined to

be in violation contained no more than

10 percent ethanol (by volume) when it

was delivered to the next party 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)

of this section the respective party must

demonstrate by reasonably 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 of this

regulation is to provide procedures as

part of the Arizona carbon monixide

implementation plans for metropolitan

transportation planning organizations

(MPOs) to use when determining

conformity of transportation plans,

programs, and projects. Section 176(c) of

the Clean Air Act (42 U.S.C. 7506(c))

prohibits MPOs from approving any

project, program, or plan which does not

conform to an implementation plan

approved or promulgated under section

110.

(b) Definitions.

(1) Applicable implementation plan or

applicable plan means the portion (or

portions) of the implementation plan, or

most recent revision thereof, which has

been approved under section 110 of the

Clean Air Act, 42 U.S.C. 7410, or

promulgated under section 110(c) of the

CAA, 42 U.S.C. 7410(c).

(2) Carbon monoxide national

ambient air quality standard (CO

NAAQS) means the standards for

carbon monoxide promulgated by the

Administrator under section 109, 42

U.S.C. 7409, of the Clean Air Act and

found in 40 CFR 50.8

(3) Cause means resulting in a

violation of the CO NAAQS in an area

which previously did not have ambient

CO concentrations above the CO

NAAQS.

(4) Contribute means resulting in

measurably higher average 8-hour

ambient CO concentrations over the

NAAQS or an increased number of

violations of the NAAQS in an area

which currently experiences CO levels

above the standard.

(5) Metropolitan planning

organization (MPO) means the

organization designated under 23 U.S.C.

134 and 23 CFR part 450.106. For the

specific purposes of this regulation,

MPO means either the Maricopa

Association of Governments or the Pima

Association of Governments.

(6) Nonattainment area means for the

specific purpose of this 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 control measure

(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 of transportation

improvements including an annual (or

biennial) element which is required in 23

CFR part 450.

(9) Unified planning work program or

"UPWP" means the program 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

the next 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

or 9A. UPWPs are also known as overall

work programs or OWPs.

(c) Applicability. These procedures

shall apply only to the Maricopa

Association of Governments 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 metropolitan planning

organization for Pima County, Arizona.

(d) Procedures.

(1) Transportation Plans and

Transportation Improvement Programs.

(i) Documentation. The MPO shall

prepare for each transportation plan and

program (except for the unified planning

work program), as part of the plan 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) the levels of vehicle trips, vehicle

miles traveled, and congestion that

were:

(1) assumed in the applicable plan,

and

(2) expected to result from the

implementation of the plan'/program

over the period covered by the

applicable plan considering any growth

likely to result from the implementation

of the plan/program;

(C) for each major transportation

control measure in the applicable

implementation plan;

(1) the TCM's implementation

schedule and, if determined in the

applicable plan, expected effectiveness

in reducing CO emissions,

(2) the TCM's current implementation

status and, if feasible, its current

effectiveness in reducing CO emissions,

and

(3) actions in the plan/program which

may beneficially or adversely affect the

implementation and/or effectiveness of

the TCM;

(D) the CO emission levels resulting

from the implementation of the plan/

program over the period covered by the

applicable plan considering any growth

likely to result from the implementation

of the plan/program; and

(E) the ambient CO concentration

levels, micro-scale and regional

resulting from the implementation of the

plan/program over the period covered

by the applicable plan considering any

growth likely to result from the

implementation of the plan or program.

(ii) Findings. Prior to approving a

transportation plan/program, the MPO

shall determine if the plan/program

conforms to the applicable

implementation plan. In making this

determination, the MPO shall make and

support each of the following findings

for each transportation plan and

program using the information

documented in paragraph (d)(1)(i) of this

section:

(A) that implementation of the

transportation plan/program will

provide for the implementation of TCMs

in the applicable plan on the schedule

set forth in the applicable plan;

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(B) that CO emission levels,

microscale and regional, resulting from

the implementation of the plan/program

will not delay attainment or

achievement of any interim emission

reductions needed for attainment and/or

interfere with maintenance of the CO

NAAQS throughout the nonattainment

area during the period covered by the

applicable plan; and

(C) that implementation of the plan/

program would not cause or contribute

to a violation of the CO NAAQS

anywhere within the nonattainment

area during the period covered by the

applicable plan.

(2) Amendments to a Transportation

Plan or Transportation Implementation

Program. Prior to 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) of this

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) of this

section within the last three years or

from a Plan or TIP amendment that has

been found to conform under procedures

in paragraph (d)(2) of this section in the

past three years, the MPO shall

document as part of the approval

document:

(A) the TIP project number,

(B) whether the project 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) If the design and scope of the

project has not changed significantly,

the MPO may find the project

conforming; or

(2) If the design and scope of the

project has changed significantly or the

design and scope of the project could

not be determined from the TIP, the

MPO shall use the procedures in

paragraph (d)(3}(ii) of this section to

determine if the project conforms to the

applicable implementation plan. (ii) For projects not exempted under

paragraph (e) of this section and not in a

plan or a TIP that has been found to

conform under procedures in paragraph

(d)(1) of this section within the last three

years:

(A) Documentation. The MPO shall

document as part of the approval

document for each 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) the levels of vehicle trips, vehicle

miles traveled, and congestion that are

(1) assumed in the applicable plan,

and

(i) expected to result over the period

covered by the applicable plan from the

construction of the project considering

any growth likely to result from the

project; (3) for each transportation control

measure in the applicable plan likely to

be affected by the project:

(i) its implementation schedule and

expected emission reduction

effectiveness from the applicable plan,

(b") its current implementation status

and, if feasible, its current effectiveness,

and

(iii) any actions as part of the project

which may beneficially or adversely

affect the implementation and/or

effectiveness of the TCM;

(4) CO emission levels which will

result from the project over the period

covered by the applicable plan*

considering any growth likely to result

from the project; and

(5) ambient CO concentration levels

which will result from the project over

the period covered by the applicable

plan considering any growth likely to

result from the project.

(B) Findings. Prior to approving any

transportation project, the MPO shall

determine if the project 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 in paragraph

(d)(2)(ii)(A) of this section:

(1) that the project will provide for the

implementation of TCMs 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 of the 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 of the CO

NAAQS during the period 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) Exempt Projects.

An individual project is exempt from

the requirements of paragraph (d) of this

section if it 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 of the

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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