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Citation: 71 Fed. Reg. 43979 2006

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### Federal Register/Vol. 71, No. 149 /Thursday, August 3, 2006/ Rules and Regulations

responsibilities established inthe Clean AirAct (CAA). This rule also is not subject to Eiecutive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it is not economically significant. In addition, this rule does
notinvolve technical standards, thus the requirements of section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule also does notimpose an information collection burden under the provisions ofthe Paperwork Reduction Actof 1995 (44U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rulereport, whichincludes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House.ofRepresentatives, and the Comptroller General of the United States prior to publication ofthe rule in the FederalRegister. A major rule
cannot take effect until 60 days after it is published inthe FederalRegister. This action is nota "major rule" as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) ofthe CAA, petitions forjudicial review ofthis action mustbe filed in the United States Court ofAppeals for the appropriate circuit by October 2, 2006. Filing a petition forreconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule forthe '
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall notpostpone the effectiveness of such rule oraction. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).) List ofSubjects in 40 CFRPart52
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: July 14, 2006. J.I. Palmer,Jr., RegionalAdministrator, Region4.
0 40 CFR part 52 isamended as follows:

PART 52-[AMENDED]

n 1. The authority citation forpart 52 continues to read as follows:

Authority:42 U.S.C. 7401 etseq. Subpart B-Alabama

m2. Section 52.50(c) isamended by revising entry for "Section 335-3-8.04"
to read as follows: 

### §52.50 Identification of plan.

(c) * * * 

### EPA-APPROVED ALABAMA REGULATIONS

State citation Title/subject State effective EPA approval date Explanation date

Chapter 335-3-8 Control of Nitrogen Oxide Emissions

Section 335-3-8-.04

..... Standards for Stationary Reciprocating Internal 03/22/05 12/28/05 (70 FR 76694). Combustion Engines.

[FRDoc. E6-12471 Filed 8-2-06; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 (EPA-R09-OAR-2006--0571, FRL-8204-81
Approvaland Promulgation of Implementation Plans forArizona; Maricopa County PM-10 Nonattainment Area; Serious Area Plan forAttainment of the24-Hour and Annual PM-10 Standards

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.
SUMMARY: EPA is taking final action under the Clean Air Act (CAA) to approve the Best Available Control Measure (BACM) andtheMost Stringent 

### Measure (MSM) demonstrations in the serious area particulate matter (PM-IO) planfor the Maricopa County portion of the metropolitan Phoenix (Arizona) nonattainment area (Maricopa County area). EPA is also grantingArizona's requestto extendthe attainment deadline from 2001 to2006. EPA originally approved these demonstrations andgranted the extension request onJuly 25, 2002. Thereafter EPA's action was challenged inthe U.S. Court ofAppeals forthe Ninth Circuit. In response tothe Cdurt's remand, EPA hasreassessed the BACM demonstration forthe significant source categories ofon-road motor vehicles and nonroad engines andequipment exhaust, specifically regarding whether

ornot California Air Resources Board (CARB) diesel is a BACM. EPA has also reassessed the MSM demonstration.

DATES: EffectiveDate: This rule is 

### effective on September 5,2006. ADDRESSES: You can inspect copies of the docket forthis action at EPA's 

### Region IX office during normal business hours by appointment atthe following locations: Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Air andRadiation Docket and Information Center, U.S. Environmental Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail Code 6102T), Washington,DC 20460.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972- 3959, lo.doris@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.


### I. Summary ofProposedAction

On July 1, 2005, EPA proposed to reapprove the BACM and MSM

. demonstrations in the Maricopa County 

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area's serious area PM-10 plan.1 EPA also proposed againto grantArizona's request for an extension ofthe area's attainment deadline from December 31, .2001 to December 31, 2006. 70 FR 38064. This proposed action responded
to a remand bythe U.S. Court of Appeals for the Ninth Circuit on the issue ofwhether CARB diesel mustbe included in the serious area plan as a BACM and aMSM. See Vigilv. Leavitt, 366 F.3d 1025, amended at 381 F.3d 826 (9thCir. 2004). EPA re-examined the feasibility ofCARB diesel forboth the on-road motor vehicle exhaust and nonroad engines and equipmbnt exhaust

source categories. Inits proposed approval inresponse to the remand, EPA concluded that implementation of CARB diesel is not feasible for on-road
motor vehicles because Arizona cannot obtain aCAA'section 211(c)(4) waiver of federal preemption and it is not feasible for nonroad engines and equipment because ofthe uncertainties with fuel availability, storage.and segregation and

concerns about program effectiveness due to owners and operators fueling outside the Maricopa County area. 70 FR 38064.

II. Public Comments and EPA Responses

EPAreceived two comment letters: One from Joy E. Herr-Cardillo, Staff Attorney, Arizona Center for Law inthe Public Interest (ACLPI), on behalf of Phoenix residents Robin Silver, Sandra L. Bahr and David Matusow; and one from Nancy C.Wrona, Director, Air Quality Division,Arizona Department of Environmental Quality (ADEQ). In general, the comments from ACLPI oppose our proposed rule and the
comments from ADEQ support our proposed rule. EPA appreciates the time and effort made by the commenters in reviewing the proposed rule and providing comments. We have

1 On July 25, 2002, EPAapproved multiple documents submitted toEPA by Arizona forthe Maricopa County area as meeting the CAA requirements for serious PM-10 nonattainment

areas forthe 24-hour and annual PM-10 national ambient air quality standards (NAAQS}. Among these documents is the "Revised MAG 1999 Serious Area Particulate Plan forPM-10 forthe Maricopa County Nonattainment Area," February 2000 (MAG plan) that includes the BACM demonstrations for all significant source categories (except agriculture) forboth the 24-hour and annual PM-10 standards and theState's request and supporting documentation, including the most stringent

measure analysis (except foragriculture) for an attainment data extension for both standards.EPA's July 25, 2002 final action included approval of these elements ofthe MAG plan. For a detailed discussion ofthe MAG plan and the serious area PM-10 requirements, please seeEPA's proposed and final approval actions at 65 FR 19964 (April 13, 2000), 66 FR 50252 (October2, 2001), and 67FR 48718 (July 25;2002). 

### summarized the comments and provided our responses below.

A. On-RoadMotor VehicleExhaust


### Comment1:ACLPI asserts thatEPA is allowing Arizona to exclude CARB diesel as aBACM simply because the State did notrequest a CAA section 211(c)(4)(A) Waiver. ACLPI states that section 211(c)(4)(A) generally prohibits the statefrom implementing fuel controls that are not identicalto any Federal standard inplace,but that the statute allows EPA to "approve an otherwise preempted state fuel measure
asnecessary ifno other measures would bring about timely attainment, or if other measures exist and aretechnically possible toimplement but are unreasonable orimpracticable."

ACLPI argues that the appropriate question is notwhether the State has requested awaiver, but rather whether ithas provided a reasonedjustification forfailure to include CARB diesel as a control measure. ACLPIbelieves that the State has notprovided such a justification andthat under our "guidance" at 56 FR 58658, when a control measure isrejected,.the state must provide areasoned justification. ACLPI includes the following sentence, purportedly from that Federal Register notice, to buttress this point: "'[t]he burden ison the State to demonstrate that an available control method for an existing source is infeasible or otherwise unreasonable and,therefore, would not constitute RACM [or BACM].'."

ACLPIcontends that EPA's speculation that thestatewould not qualify for a waiverbecause CARB diesel is notnecessary for attainment cannot excuse the state's failure to provide a reasonedjustification. ACLPI asserts that EPA cannot simplyrely for this purpose on the State's demonstration thatthe area willnot attain until December 2006 because EPA improperly approved that date without CARB diesel as a MSM.

Finally, ACLPI comments thatEPA's conclusion that CARB diesel is not needed for attainment conflicts with the Agency's guidance at 59 FR 42011- 42012 that "theBACM analysis mustbe independent ofthe attainment analysis

Response:Initially we note that we did notrely on Arizona's failureto request a CAA section 211(c)(4) waiver inaccepting the State's exclusion of CARB diesel as aBACM. Rather, we acknowledged that a state is eligible to obtain awaiver offederal preemption under certain circumstances, but concluded thatArizona would not have been able to obtain such awaiver here. Under section 211(c)(4)(C)(i), 2 EPA

can approve the implementation of CARB diesel by Arizona only ifthe Agency "finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard that the plan implements." Further, EPA "may find that a State control or prohibition is necessary to achieve the standard ifno other measures that would bring about timely attainment exist, or ifother

measures exist and are technically possible to implement, but are unreasonable or impracticable." Because EPA has approved the state's demonstration of attainment of the PM10NAAQS (67FR 48718), EPA believes that the state would not be able to provide a demonstration that CARB diesel is necessary to achieve-the NAAQS for PM-10 and thus would not be able to obtain a section 211(c)(4)(C)(i) waiver necessary to implement CARB diesel foron-road motor vehicles. 70 FR 38064, 38065. 3

We agree with ACLPI thatgenerally

an appropriate inquiry, among others, in

a BACM analysis is whether there exists

a reasonedjustification for excluding a control measure. 65 FR 19964, 19967 (April 13, 2000). However, a BACM analysis is not undertaken in a vacuum. Ifit is notpossible for the State to obtain

a waiver under section 211(c)(4), it would not be able to implement CARB diesel in the nonattainment area. Therefore it is not necessary for the State to provide areasoned justification forrejecting CARB diesel as BACM. The State should notbe compelled to undertake a pointless analysis.4

2In August 2005, CAA section 211(c)(4)(C) was amended and renumbered by the Energy Policy Act of2005, 42 USCS 15801 etseq. The amendments place additional restrictions onEPA's authority under that provision.

IBecause we have determined that we could not approve CAR1 diesel into the Arizona SIP under section 211(c)(4)(C)(i), we believe that we need not address the effect ofthe new provisions ofthe Energy PolicyAct of 2005in today's action.

4To support its contention that theburden is on the state to demonstrate that a measure is not a BACM, ACLPImisquotes a sentence from an unrelated EPA proposed rule as: "[tlhe burden is on the State to demonstrate thatan available control method * * * is infeasible and, therefore, would
not constitute RACM [or BACM]." The actual quotation is from aFederal Register notice in which EPA describes a moderate area PM-10 guidance document and states: "[tlhe burden is on the State to demonstrate that an available control method * * *is infeasible and, therefore, would not constitute RACM [or RACTI." 56 FR 58656, 58658 (November 21, 1991) (emphasis added; brackets in original). There is nothing so definitive in EPA's serious area guidance regarding the responsibility ofthe State to provide the primary justification forrejecting a measure as BACM. Moreover, the Ninth Circuit, in determining that it could not find in EPA's approval ofthe MAG plan thereasoned justification forrejecting CARB diesel, observed that "Arizona has offered one explanation,

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ACLPI's assertion that EPA cannot rely on the State's demon~trati6n that the area will notattain until December 2006 because EPA improperly approved that date without CARB diesel as a MSM is also misguided. In granting the State's request foran extension ofthe attainment deadline from December 31, 2001 to December 31, 2006under CAA section 188(e), EPA concluded that the MAG plan "includes the most stringent

measures that are included in the implementation plan of any State or are achieved in practice inany State, and

can feasibly be implemented in the area." 67 FR at 48739. As we explained inour final approval ofthe State's PM10 plan, section 188(e) does notcompel the adoption ofevery possible MSM. We have interpreted the MSM requirement consistent with how we have historically interpreted thegeneral RACM provision in section 172(c)(1), i.e., we have long held that a state is not obligated to adopt and implement

measures that will not contribute to expeditious attainment. We are interpreting the MSM requirement using the same principle.

Before we can grant an attainment date extension, the statemust show that its plan will result in attainment bythe "most expeditious alternative date practicable." See CAA sections 188(e) and 189(b)(1)(A)(ii). Ifa state can show that including a certain set ofpotential MSM would not result in more expeditious attainment, then it is reasonable and consistent with the Act
notto require their inclusion as a condition of approval. Id.at 48723- 48724. Here we appropriately

- concluded that the implementation of

CARB diesel would not advance attainment ofthe PM-10 NAAQS and thus was notrequired to be adopted under the MSM requirement. Id.at 48725. As a result, having determined that the State had demonstrated that attainmentby December 31, 2006 was the most expeditious alternative date under section 188(e), EPA properly granted the State's request for an attainment date extension to that date.

Finally, EPA disagrees that its conclusion, pursuant to section 188(e), that CARB diesel is not needed for expeditious attainment conflicts with the Agency's BACM guidance. There is nothing in EPA's guidance for PM-10 serious area plans (59 FR 41998 (August 16, 1994)) that requires that a BACM analysis be entirely independent of attainment questions. More importantly, the Act does not linkthe BACM and

whichEPA has declined toratify, and EPA has not proffered an adequate explanation ofits own." 381 F. 3d at 843. attainment demonstration requirements. As noted inEPA's guidance, under section 189(b)(2), states have only 18 months following reclassification to submit their BACM demonstrations, but up to four years to submit attainment demonstrations. Therefore, EPA concluded that "Congress intended BACM demonstrations to be based more
on the feasibility of implementing the

measures rather than on an analysis of the attainment needs ofthe area." 59 FR at42012. In contrast, the Actdoes not specify an implementation deadline for MSM. However,because the clear intent ofsection 188(e) is to minimize the length ofany attainment date extension, the implementation ofMSM must necessarily take into account the attainment needs ofthe area. 66 FR at 50282.

B.NonroadEnginesandEquipment Exhaust

Comment2:Fuel availability: ACLPI
comments that to conclude that CARB diesel is not a BACM due to uncertainty about the fuel's availability in Maricopa County, EPA relies principally on outdated information (the state's submission in 1999 and aMathPro study conducted in 1998) and incomplete information that fails to consider the availability (as ofJanuary 1, 2006) of similar diesel fuel inTexas (approved into the Texas SIPby EPA at 66 FR 57196 (2001)) as well as in California.

Response:The conditions EPA relied

on from the 1998 and 1999 documents still exist, i.e., Arizona has no refineries and therefore must depend onrefineries inother states forfuel supplies, -principallyCalifornia, New Mexico, and Texas. Even though CARB diesel fuel is produced inCalifornia, and to some extent may be produced to meet Low Emission Diesel (LED) fuel requirements ineastern and central Texas as discussed below, there are limits on refinery capacity in each state, as evidenced by (1) our discussion in the proposed rule ofprojected refining capacity forCARB diesel in California, which ACLPI does not dispute, and (2) the recent disruption offuel production, including diesel fuel, inthe aftermath of Hurricanes Katrina and Rita.

As a result offuel supply problems causedb, hurricane damage to refineries and other oil production facilities inthe GulfCoast area, EPA issued waivers ofcertain gasoline and diesel fuel requirements, initially applicable in all 50 states, for a sixteen dayperiod from August 31 to September 15, 2005. The initial waiver was extended for a smaller number ofstates, including New Mexico and Texas, for highway diesel fuel sulfur content through October 25, 2005. Additionally, EPA granted a waiver ofthe start date for the Texas LED fuel through January 31, 2006.

Arizona and California fuel supplies

were also affected by the hurricanes, since California depends on imports for 5to 10% ofits gasoline supply, and Arizona depends on California and Texas for a great majority ofits gasoline supply. Arizona requested and received

awaiver ofits SIP-approved Reid Vapor Pressure (RVP) gasoline requirement for the Phoenix area through its duration, September 30, 2005. California requested and received waivers ofits SIP-approved RVP-gasoline requirement through October 31, 2005, the end ofits

summerRVP gasoline restriction. For copies ofthe relevant waivers, see EPA's fuelwaiver Web site at http:// www.epa.govlcompliance/katrinal waiver/index.htmlor EPA's docket for this rule.

The issuance ofthese fuel waivers illustrates the limits onrefinery capacity in the states cited byACLPI, California and Texas, which provide the great majority offuel supplies to Arizona. This limitation, in addition to the information provided inthe proposed rule on current projections ofCARB diesel production in California, supports our conclusion that thereis continuing uncertainty regarding Arizona's sources offuel supplies as indicated inthe 1998 study and 1999 report.

- ACLPI also states that EPA relied on incomplete information by failing to consider the availability (as ofJanuary 1,20065) ofsimilar diesel fuel in Texas

as well as in California. As noted above, CARB diesel may be produced to meet the LED fuel requirements in eastern and central Texas, but it is not required

as aresult of(1) the permissible use of substitutes forLED fuel that achieve equivalent NOx reductions but not necessarily equivalent PM reductions, and (2) recent changes thatremoved the low sulfur requirement from the LED rule. See 70 FR 58325. We note that California has made the low sulfur requirement ofits CARB diesel rule

more stringent, implementing a 15 ppm sulfur content requirement as of

5As noted above, the LED startdate for retailers has now been moved to January 31, 2006, following issuance byEPA offuel waivers dated September 27 and October 18, 2005, as a result ofthe supply disruptions caused by Hurricanes Katrina and Rita. See theEPA website noted above for copies ofthe relevant waivers. Additionally, EPA has approved two subsequent SIPrevisions making changes to the LED fuel program. See 70 FR 17321 (April 6, 2005) and 70 FR 58325 (October6, 2005). 

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September 1, 2006 at the retail level,6 but Texas has eliminated the sulfur
content requirement completely, deferring to federal requirements for low sulfur content for bothhighway and nonroad diesel fuel. (See footnote 8 for

a briefdescription ofthese requirements.)

A significant difference between CARB diesel and the Texas LED fuel program is the ability offuel producers
to meet the LED obligations by using substitutes that achieve equivalent NOx emission reductions. For example, a producer may be able to achieve equivalent NOx reductions by substituting early introduction oflow sulfur gasoline, at leastuntil all relevant EPA requirements for low sulfur gasoline have been implemented, orby the use ofdiesel fuel with additives which do not necessarily meet the LED limit on aromatic hydrocarbons and the minimum cetane number but would still achieve the same NOx reductions. 7
Substitutes in the Texas LED program that achieve equivalent NOx reductions

are not designed to achieve the PM emission reductions that would be critical ifCARB diesel fuel were to be required inthe Maricopa County area.

Another significant difference between CARB diesel and the Texas LED fuel program is the elimination in the latter ofthe low sulfur requirement. EPA approved this change into the relevant Texas ozone SIPsbecause the low sulfur.requirement did not directly reduce the VOC orNOx emissions that

are precursors to the formation'ofozone, and because EPA's requirements for low sulfur diesel fuel will begin implementation in 2006 and 2007. 8

6See Section 2281(a)(2)-(3) of the California Diesel Fuel Regulations, with amendments effective August 14, 2004, at thefollowing Web site: http:// www.arb.ca.gov/fuels/diesel/081404dslregs.pdf.

7See Sections 114.312(f) and 114.318 ofthe LED fuelprogram regulations, which provide for alternative diesel fuel formulations and alternative emission reduction plans, at the following Website: http://www.tceq.state.tx.us/implementationlair/sipl cleandiesel.html.Although Section 114.312(f) provides that alternative diesel fuel formulations
must provide comparable or betterreductions of NOx and PM, three ofthefour alternative diesel fuel formulation approval letters to date have cited NOx reductions alone, or (in one case) reductions ofNOx and hydrocarbons, but not PM, as the basis for approval. (See approval letters forTXLED-A00001, dated May 10, 2005, TXLED-A-00005, dated December 13, 2005, and TXLED-A-00006, dated April 26, 2006, atthe same website.) Section 114.318 provides that the alternative emissions reduction plan must demonstrate emission reductions associated with LED compliance through

an equivalent substitute fuel strategythat is achieved through diesel fuel or early gasoline sulfur reduction offsetsthat meet specified NOx reduction requirements or a combination ofsuch strategies.

8As noted in theproposed rule, federal requirements for low sulfur diesel fuel for nonroad

use will be implemented at 15 ppm in 2010; None ofthe*Texas ozone attainment demonstration SIP submissions relied

on sulfur emission reductions from the LED fuel program.

EPA specifically states, however, that reducing sulfur emissions (through implementing the low sulfur standard) does reduce sulfur dioxides and particulate matter emissions. 70 FR at 58326. However, since there are no SO2
orPM-10 nonattainment areas in the
eastern and central areas ofTexas (the LED covered area), and no monitored violations ofthese standards in these
areas, removing the low sulfur standard

was not critical to the LED fuel program. Id.Removing the low sulfur standard, however, means the LED fuel program is

no longer equivalent to CARB diesel for

an area such as Maricopa County which ACLPI argfes needs CARB diesel to meet the PM-10 standards.

Thus, ACLPI's claim that EPA relied

on incomplete information in failing to consider availability ofCARB diesel fuel inTexas is notcompelling. The LED fuel program is not equivalent to CARB diesel because it allows substitution of other fuels, including gasoline, that achieve equivalent NOx emission reductions, and has recently been revised to eliminate the low sulfur requirement which would directly affect PM emission reductions. Furthermore, the LED fuel requirement was developed for ozone nonattainment

areas inTexas, notPM nonattainment

areas.

Comment3:Fuel storage and supply: ACLPI comments that EPA raises a potential problem offuture fuel storage and supplybut does not evaluate it except by relying on hypothetical observations ofa single ADWM employee. ACLPI states that since the presumption when evaluating potential BACM is in favor ofincluding the control measure unless a reasoned justification is offered to exclude it,this potential problem is notenough to justify excluding it.

Response:Although ACLPI describes this "potential problem" as one offuel storage and "supply," EPA's proposed rule more accurately describes the scope ofthe problem as fuel storage and "segregation." Ifthe nonroad diesel fuel for the Maricopa County area were CARB diesel, there would be a third type ofdiesel fuel in addition to the two

beginning in2007, the federal requirement forlow sulfur dieselfuel fornonroad usewillbegin implementation at 500 ppm.Federal requirements for lowsulfur dieselfuel for highwayuse willbe implemented at15 ppm in2006. 70 FR70498 (November 22, 2005). As noted inthe MAG plan, Arizona already restricts the sulfurcontentof nonroad diesel fuel intheMaricopa County area to 500 ppm. (MAGplan, page 9-47.) types (federal highway diesel fuel and Federal nbnroad diesel fuel)currently required for distribution statewide. These three fuels, and the three types of gasoline that are required for the state (CleanerBurning Gasoline for the Maricopa County area, oxygenated gasoline for Tucson inthe winter, and conventional gasoline for the rest ofthe state), as well asjet fuel, mustbe stored and transported separately in the fuel storage and distribution systems. These systems include pipelines, terminal tanks, truck tanks, and retail tanks. If
not properly segregated, the fuels can be contaminated which would complicate the fuel distribution system since the contaminated fuels would need to be reblended tobe suitable for another use. 9

The Arizona Department ofWeights and Measures (ADWM) is the State agency responsible for implementing and enforcing fuelsrequirements in the State. The cited employee, the Air and Fuel Quality Program Manager, regularly gathers information from representatives offuel suppliers and distributors about the storage of different types offuel for distribution in the State as part of aroutine effort to

assess the potential for fuel supply interruptions. This employee regularly reports on this information to the Governor's office as part ofan effortto anticipate and resolve potential problems with fuel supply or demand. 1 0 Thus, this employee has the authority and the experience to know iftank farms for fuel storage inthe Maricopa County area are atmaximum capacity."

Additionally, ADEQ notes in its ' August 1, 2005 comment letter on our proposed rule that "breakout tankage" does not exist onthe eastern part ofthe pipeline. Breakout tankage, unlike the storage tanks located in the Maricopa

9Additionally, as noted in our proposed rule, if nonroad diesel fuel is not kept segregated strictly fornonroad use, andit is available for useby both on-road vehicles as well as nonroad engines and equipment, the nonroad diesel fuel wouldbe preemptedjust as if it were intended only foruse by on-road vehicles. 70 FR at 38066, footnote 8.

1oSeeDecember 22, 2005 Memorandum, "December 20, 2005 telephone conversation with Duane Yantorno, Air and Fuel Quality Program Manager, Arizona Department ofWeights and Measures, Ira Domsky, Deputy Director. Division of Air Quality, Arizona Department ofEnvironmental Quality, Carol Weisner, EPA Region 9, and Wienke Tax, EPA Region 9, on Feasibility ofRequiring CARB Diesel Fuel in Maricopa County PM-10 Nonattainment Area." Yantorno confirmed thenext day, after speaking with representatives offuel suppliers and/ordistributors, that the two large tank farms in the Maricopa area are at or near maximum capacity. One ofthe facilities might be ableto acconfiodate a different type offuel for storage, but theother could not.

I'These tank farms are the large terminal tanks available for storing fuel once the fuelhas been off, loaded from a pipeline or other distribution method.

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County area, are storage tanks at intermediate terminals outside the area. On the West Kinder Morgan pipeline, intermediate terminals are located in Colton, California; on the East Kinder Morgan pipeline, intermediate terminals

are located in El Paso, Texas, and Tucson, Arizona. 12ADEQ comments that refiners from Texas orNew Mexico wanting to bring CARB diesel to the Maricopa market would have to barge it through the Panama Canal to California for distribution through the western 

### pipeline system to find adequate "breakout tankage'" forstoring the fuel separately.

Comment 4:Fueling outside Maricopa 

### County: ACLPI comments thatEPA relies on speculation that nonroad diesel fuelusers will refuel outside the nonattainment area to avoid paying the higher cost ofCARB diesel. ACLPI claims that EPA's only support comes from MAG plan statements, which are themselves unsupported, and irrelevant comments about the trucking industry, and it ignores EPA's explicit rejection of this argument in the 2001 SIP approval ofthe Texas low emission diesel fuel control.

Response:It is the size ofthe covered
area, as well as the incentive to avoid the higher cost ofCARB diesel fuel, that EPA cited as its principal reasons for the uncertainty in effectiveness of implementing CARB diesel in the Maricopa area fornonroad engines and equipment alone. 70 FR 38064. Because ofthe markedly different circumstances, ACLPI's reliance on statements from the Texas LED SIP approval are misplaced. Texas will require sale ofLED fuel which, as noted inresponse to

- Comment 2 above, is not equivalent to CARB diesel fuel, foruse by both onroad vehicles and nonroad engines and equipment in an area that includes 110 counties ineastern and central Texas withborders from 153 to 454 miles wide, asnoted inthe excerpt quoted by ACLPI. This area includes most ofthe largest cities inTexas: Houston,Dallas, San Antonio, and Austin. Similarly, California requires sale'of CAR3 diesel fuel statewide (approximately 58 counties totaling 163,696 square miles,http://www.dof.ca.gov/HTMLFSDATA/stat-abs/tables/al.xls) for use by both on-road vehicles and nonroad engines and equipment.

The Maricopa County areathat would be covered by aCARB diesel fuel program, by contrast, is much smaller (approximately 66 miles across its widest point, as we noted in our proposed rule (70 FR at 38067) and

12SeeDecember 22, 2005 Memorandum cited in footnote 9.
- would be limited to fuel for nonroad engines and equipment. As ADEQ noted in its August 1,2005 comment letter, enforcement ofthe requirement would be virtually impossible because it would be relatively easy to evade, eitherby purchasing Federal nonroad diesel fuel outside the covered area, orby purchasing Federal highway diesel fuel within the covered area. 13

Inboth California and Texas, the size ofthe covered areas and the application ofthe requirement to both highway vehicles and nonroad engines and equipment establish much more. extensive programs that essentially provide only one type of diesel fuel for sale in very large geographic areas, substantially reducing the potential for evading the special diesel fuel requirements.

C.MSMDemonstrationandExtension of

AttainmentDate
Comment 5:ACLPI states that, because EPA did not undertake anew analysis ofCARB diesel as a MSM for purposes ofthe attainment date extension, ACLPI incorporates by reference comments it submitted "in
response to previQus rulemakings, as well as the arguments and analysis set forth in the Opening and Reply briefs filed in Vigil * * * (specifically Opening Brief,pp. 21-27; 14 Reply Brief, pp. 9-18.)"

Response:The Vigil Cb6rt's remand of EPA's approval ofthe attainment date extension is limited. The Court concluded that "[w]e also remand the question ofArizona's eligibility for the extension, insofar as thatquestion dependsonEPA'sdetermination regarding MSM." (Emphasis added). 381 F. 3d at487. Therefore to the extent that ACLPI intends to incorporate by

13ForFederal tax purposes, nonroad diesel fuel is dyed red to distinguishit easily from highway diesel fuel. Both Federal and Arizona excise taxes applyto highway diesel fuelbut not to nonroad diesel fuel. Arizona law (as noted in ADEQ's August 1, 2005 comment letter) provides for refunds to users oftaxed highway diesel fuelwho demonstrate they actuallyused the fuel in nonroad equipment. This ability to seek a refund means the Arizona excise tax on highway diesel fuel ($0.26 pergallon) is probably not a significant obstacle to

someone who wants to avoid the presumably higher cost ofCARB diesel by purchasing highway diesel fuel which would not be subject to the CARB diesel fuel requirements. EPA notes, however, that Arizona sales and usetax (8% ofthepurchase price ofthe fuel) would likely apply to purchases of highway diesel fuel that are shown to be for nonroad use, and would be deducted from the refund. See January 20, 2006 Memorandum, "January 12, 2006 telephone conversation between Tim Lee, Director ofRevenue Audits, Arizona Department ofTransportation, and Carol Weisner, EPA Region 9,regarding Arizona excise tax on diesel fuel."

14EPAnotes that the discussion ofMSM begins

on p. 24 ofACLPI's Opening Brief. reference its comments and arguments

on aspects ofthe extension other than MSM, it is precluded from raising them inthis rulemaking.

While ACLPI does not specify, we
.assume that by "previous rulemakings" it is referring to EPA's proposed approvals ofthe seriousPM-10 plan for the Maricopa County area.at 65 FR 19964 (April 13, 2000) and 66 FR 50252 (October 2, 2001). ACLPI commehted on these proposed actions in letters from, Joy Herr-Cardillo to Frances Wicher, EPA Region 9, dated July 20, 2000 and November 1,2001. EPA has previously addressed the arguments relating to MSM and the attainment date extension

as it relates to MSM raised by ACLPI in their briefs and these letters. See 67 FR at48722-48725 and EPA's Response Briefin Vigil at 10-12 and 30-34. Discussions also relevant to these issues

can be found inEPA's proposed approvals ofthe serious PM-IO plan for the Maricopa County area at 65 FR 19964 and 66 FR 50252.

III. FinalAction

In response to the Vigil Court's remand, EPA is again approving the BACM demonstration inthe MAG plan for the source categories ofon-road and nonroad vehicle exhaust without CARB diesel. CARB diesel is not feasible for on-road motor vehicles because Arizona cannot obtain a CAA section 211(c)(4)(C)(i) waiver forpurposes of PM-10 attainment. CARB diesel is not feasible for nonroad engines and equipment because ofthe uncertainties with fuel availability, sto.rage and segregation and concerns about program effectiveness due to owners and operators fueling outside the Maricopa County'area. Therefore, EPA is also again approving the MSM demonstration in the MAG plan and the associated extension ofthe attainment deadline for the area from December 31, 2001 to December 31, 2006.

In its remand to EPA, the Vigil Court did not vacate our approval ofthe MAG plan as it relates to the BACM and MSM demonstrations, and the associated extension of the attainment deadline for the Maricopa County area. These actions

are codified at 40 CFR 52.123(j)(2), (4) and (7) and remain ineffect. See 67 FR at 48739.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a "significant regulatory action" and therefore is not subject to review by the Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211,

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### 43984 Federal Register/Vol. 71, No. 149/Thursday, August 3, 2006/Rules and R~gulations

"Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies that this rule will nothave a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose
any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (Pub.L. 104-4).

This rule also does nothave tribal implications because it will nothave a substantial direct effect on one ormore Indian tribes, on therelationship between the Federal Government and Indian tribes, or onthe distribution of power and responsibilities between the Federal Government and Indian tribes,

as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does nothave-Federalism implications because it does not have substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution ofpower and responsibilities established in the Clean AirAct. This rule also is not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meetthe criteria of the Clean Air Act. Inthis context, in the absence ofa prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission,
to use VCS in'place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act.Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do notapply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rulereport, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published inthe Federal Register. This action is not a "major rule" as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuitby October 2, 2006. Filing a petition forreconsideration by the Administrator ofthis final rule does
notaffect the finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which apetition forjudicial review may be filed, and shall notpostpone the effectiveness of such rule or action. This action may not bechallenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Listof Subjects in 40 CFR Part52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

Dated: July 14, 2006. Laura Yoshii, ActingRegionalAdministrator, RegionIX. [FRDoc. E6-12483 Filed 8-2-06; 8:45 am]

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 300 [FRL-8205-1]

National Oil and Hazardous Substance Pollution Contingency Plan; National PrioritiesList
AGENCY: Environmental Protection Agency (EPA). ACTION: Technical Correction offinal partial deletion ofthe Motor Wheel Disposal Superfund Site from the National Priorities List.

SUMMARY: On June 23, 2006 (70 FR 36019) EPA published atechnical correction to afinal notice ofdeletion from the National Priorities List forthe Motor Wheel, Lansing, Michigan Site. The technical correction had an error in the amendatory language. This action is correcting this error. DATES: Effective Date:This action is effective as ofAugust 3, 2006. ADDRESSES: Comprehensive information

on the Site, as well as the comments that were received during the comment period are available at: Robert Paulson, Community Involvement Coordinator, U.S. EPA, P19J, 77 W. Jackson, Chicago, IL, (312) 886-0272 or 1-800-621-8431.
FOR FURTHER INFORMATION CONTACT: Gladys Beard, State NPL Deletion Process Manager, U.S. EPA (SR-6J), 77 W. Jackson, Chicago, IL 60604, (312) 886-7253 or 1-800-621-8431. SUPPLEMENTARY INFORMATION: InformationRepositories: Repositories have been established to provide detailed information concerning this decision at the following address: U.S. EPA Region V, 77 W.Jackson, Chicago, IL 60604, (312) 353-5821, Monday through Friday 8 a.m. to 4 p.m.; The Lansing Public Library, Reference Section, 401 Capital Ave., Lansing, MI 48933. On June 22, 2000 (65 FR 38806), EPA published a "Notice ofintent to delete 3.45 acres ofland from the Motor Wheel Disposal Site from theNational Priorities List; request for comments," and on June 22, 2000 (65 FR 38774), a "Direct final notice ofdeletion for 3.45

acres ofland for the Motor Wheel Superfund Site from the National Priorities List (NPL)." The EPA is publishing this Technical Correction to the June 22, 2000, finalnotice of deletion due to errors that were published inthat notice, a subsequent technical correction dated June 23, 2006, and in the National Priorities List
at 40 CFR part.300, Appendix B. After review ofthe final notice ofdeletion and the National Priorities List, EPA is

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