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

responsibilities established in the Clean

Air Act (CAA). This rule also is not

subject to Eiecutive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885, April 23, 1997),

because it is not economically

significant. In addition, this rule does

not involve technical standards, thus

the requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule also

does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House.of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by October 2, 2006. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the '

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See CAA

section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Volatile

organic compounds.

Dated: July 14, 2006.

J.I. Palmer, Jr.,

Regional Administrator, Region 4.

0 40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

n 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart B-Alabama

m 2. Section 52.50(c) is amended 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.

[FR Doc. 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

Approval and Promulgation of

Implementation Plans for Arizona;

Maricopa County PM-10

Nonattainment Area; Serious Area Plan

for Attainment of the 24-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) and theMost Stringent

Measure (MSM) demonstrations in the

serious area particulate matter (PM-IO)

plan for the Maricopa County portion of

the metropolitan Phoenix (Arizona)

nonattainment area (Maricopa County

area). EPA is also granting Arizona's

request to extend the attainment

deadline from 2001 to 2006. EPA

originally approved these

demonstrations and granted the

extension request on July 25, 2002.

Thereafter EPA's action was challenged

in the U.S. Court ofAppeals for the

Ninth Circuit. In response to the Cdurt's

remand, EPA has reassessed the BACM

demonstration for the significant source

categories of on-road motor vehicles and

nonroad engines and equipment

exhaust, specifically regarding whether

or not California Air Resources Board

(CARB) diesel is a BACM. EPA has also

reassessed the MSM demonstration.

DATES: Effective Date: This rule is

effective on September 5, 2006.

ADDRESSES: You can inspect copies of

the docket for this action at EPA's

Region IX office during normal business

hours by appointment at the following

locations: Environmental Protection

Agency, Region IX, 75 Hawthorne

Street, San Francisco, CA 94105-3901.

Air and Radiation 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 of Proposed Action

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 again to grant Arizona's

request for an extension of the area's

attainment deadline from December 31,

.2001 to December 31, 2006. 70 FR

38064. This proposed action responded

to a remand by the U.S. Court of

Appeals for the Ninth Circuit on the

issue of whether CARB diesel must be

included in the serious area plan as a

BACM and a MSM. See Vigil v. Leavitt,

366 F.3d 1025, amended at 381 F.3d 826

(9th Cir. 2004). EPA re-examined the

feasibility of CARB diesel for both the

on-road motor vehicle exhaust and

nonroad engines and equipmbnt exhaust

source categories. In its proposed

approval in response to the remand,

EPA concluded that implementation of

CARB diesel is not feasible for on-road

motor vehicles because Arizona cannot

obtain a CAA'section 211(c)(4) waiver of

federal preemption and it is not feasible

for nonroad engines and equipment

because of the 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

EPA received two comment letters:

One from Joy E. Herr-Cardillo, Staff

Attorney, Arizona Center for Law in the

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, EPA approved multiple

documents submitted to EPA by Arizona for the

Maricopa County area as meeting the CAA

requirements for serious PM-10 nonattainment

areas for the 24-hour and annual PM-10 national

ambient air quality standards (NAAQS}. Among

these documents is the "Revised MAG 1999 Serious

Area Particulate Plan for PM-10 for the Maricopa

County Nonattainment Area," February 2000 (MAG

plan) that includes the BACM demonstrations for

all significant source categories (except agriculture)

for both the 24-hour and annual PM-10 standards

and the State's request and supporting

documentation, including the most stringent

measure analysis (except for agriculture) for an

attainment data extension for both standards. EPA's

July 25, 2002 final action included approval of

these elements of the MAG plan. For a detailed

discussion of the MAG plan and the serious area

PM-10 requirements, please see EPA's proposed

and final approval actions at 65 FR 19964 (April 13,

2000), 66 FR 50252 (October 2, 2001), and 67 FR

48718 (July 25; 2002).

summarized the comments and

provided our responses below.

A. On-Road Motor Vehicle Exhaust

Comment 1: ACLPI asserts that EPA is

allowing Arizona to exclude CARB

diesel as a BACM simply because the

State did not request a CAA section

211(c)(4)(A) Waiver. ACLPI states that

section 211(c)(4)(A) generally prohibits

the state from implementing fuel

controls that are not identical to any

Federal standard in place, but that the

statute allows EPA to "approve an

otherwise preempted state fuel measure

as necessary if no other measures would

bring about timely attainment, or if

other measures exist and are technically

possible to implement but are

unreasonable or impracticable."

ACLPI argues that the appropriate

question is not whether the State has

requested a waiver, but rather whether

it has provided a reasoned justification

for failure to include CARB diesel as a

control measure. ACLPI believes that

the State has not provided such a

justification and that under our "guidance" at 56 FR 58658, when a

control measure is rejected, .the state

must provide a reasoned justification.

ACLPI includes the following sentence,

purportedly from that Federal Register

notice, to buttress this point: "'[t]he

burden is on 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].'."

ACLPI contends that EPA's

speculation that the state would not

qualify for a waiver because CARB

diesel is not necessary for attainment

cannot excuse the state's failure to

provide a reasoned justification. ACLPI

asserts that EPA cannot simply rely for

this purpose on the State's

demonstration that the area will not

attain until December 2006 because EPA

improperly approved that date without

CARB diesel as a MSM.

Finally, ACLPI comments that EPA's

conclusion that CARB diesel is not

needed for attainment conflicts with the

Agency's guidance at 59 FR 42011-

42012 that "the BACM analysis must be

independent of the attainment analysis

Response: Initially we note that we

did not rely on Arizona's failure to

request a CAA section 211(c)(4) waiver

in accepting the State's exclusion of

CARB diesel as a BACM. Rather, we

acknowledged that a state is eligible to

obtain a waiver of federal preemption

under certain circumstances, but

concluded that Arizona would not have

been able to obtain such a waiver here.

Under section 211(c)(4)(C)(i), 2 EPA

can approve the implementation of

CARB diesel by Arizona only if the

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 if no

other measures that would bring about

timely attainment exist, or if other

measures exist and are technically

possible to implement, but are

unreasonable or impracticable."

Because EPA has approved the state's

demonstration of attainment of the PM10 NAAQS (67 FR 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 for on-road motor vehicles. 70 FR

38064, 38065. 3

We agree with ACLPI that generally

an appropriate inquiry, among others, in

a BACM analysis is whether there exists

a reasoned justification for excluding a

control measure. 65 FR 19964, 19967

(April 13, 2000). However, a BACM

analysis is not undertaken in a vacuum.

If it is not possible 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 a reasoned justification

for rejecting CARB diesel as BACM. The

State should not be compelled to

undertake a pointless analysis.4

2 In August 2005, CAA section 211(c)(4)(C) was

amended and renumbered by the Energy Policy Act

of 2005, 42 USCS 15801 et seq. The amendments

place additional restrictions on EPA's authority

under that provision.

I Because 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 of the new provisions of the

Energy Policy Act of 2005 in today's action.

4 To support its contention that the burden is on

the state to demonstrate that a measure is not a

BACM, ACLPI misquotes a sentence from an

unrelated EPA proposed rule as: "[tlhe burden is on

the State to demonstrate that an available control

method * * * is infeasible and, therefore, would

not constitute RACM [or BACM]." The actual

quotation is from a Federal 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 of the State to provide the primary

justification for rejecting a measure as BACM.

Moreover, the Ninth Circuit, in determining that it

could not find in EPA's approval of the MAG plan

the reasoned justification for rejecting CARB diesel,

observed that "Arizona has offered one explanation,

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

ACLPI's assertion that EPA cannot

rely on the State's demon~trati6n that

the area will not attain until December

2006 because EPA improperly approved

that date without CARB diesel as a

MSM is also misguided. In granting the

State's request for an extension of the

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 in any State, and

can feasibly be implemented in the

area." 67 FR at 48739. As we explained

in our final approval of the State's PM10 plan, section 188(e) does not compel

the adoption of every possible MSM. We

have interpreted the MSM requirement

consistent with how we have

historically interpreted the general

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 state must show that

its plan will result in attainment by the

"most expeditious alternative date

practicable." See CAA sections 188(e)

and 189(b)(1)(A)(ii). If a state can show

that including a certain set of potential

MSM would not result in more

expeditious attainment, then it is

reasonable and consistent with the Act

not to 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 of the PM-10 NAAQS and

thus was not required to be adopted

under the MSM requirement. Id. at

48725. As a result, having determined

that the State had demonstrated that

attainment by 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 link the BACM and

which EPA has declined to ratify, and EPA has not

proffered an adequate explanation of its own." 381

F. 3d at 843.

attainment demonstration requirements.

As noted in EPA'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 of the area." 59 FR

at 42012. In contrast, the Act does not

specify an implementation deadline for

MSM. However, because the clear intent

of section 188(e) is to minimize the

length of any attainment date extension,

the implementation of MSM must

necessarily take into account the

attainment needs of the area. 66 FR at

50282.

B. Nonroad Engines and Equipment

Exhaust

Comment 2: 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 a MathPro

study conducted in 1998) and

incomplete information that fails to

consider the availability (as of January

1, 2006) of similar diesel fuel in Texas

(approved into the Texas SIP by 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 on refineries

in other states for fuel supplies,

-principally California, New Mexico, and

Texas. Even though CARB diesel fuel is

produced in California, and to some

extent may be produced to meet Low

Emission Diesel (LED) fuel requirements

in eastern 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 of projected refining

capacity for CARB diesel in California,

which ACLPI does not dispute, and (2)

the recent disruption of fuel production,

including diesel fuel, in the aftermath of

Hurricanes Katrina and Rita.

As a result of fuel supply problems

caused b, hurricane damage to

refineries and other oil production

facilities in the Gulf Coast area, EPA

issued waivers of certain gasoline and

diesel fuel requirements, initially

applicable in all 50 states, for a sixteen

day period from August 31 to September

15, 2005. The initial waiver was

extended for a smaller number of states,

including New Mexico and Texas, for

highway diesel fuel sulfur content

through October 25, 2005. Additionally,

EPA granted a waiver of the 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

5 to 10% of its gasoline supply, and

Arizona depends on California and

Texas for a great majority of its gasoline

supply. Arizona requested and received

a waiver of its SIP-approved Reid Vapor

Pressure (RVP) gasoline requirement for

the Phoenix area through its duration,

September 30, 2005. California

requested and received waivers of its

SIP-approved RVP-gasoline requirement

through October 31, 2005, the end of its

summer RVP gasoline restriction. For

copies of the relevant waivers, see EPA's

fuel waiver Web site at http://

www.epa.govlcompliance/katrinal

waiver/index.html or EPA's docket for

this rule.

The issuance of these fuel waivers

illustrates the limits on refinery capacity

in the states cited by ACLPI, California

and Texas, which provide the great

majority of fuel supplies to Arizona.

This limitation, in addition to the

information provided in the proposed

rule on current projections of CARB

diesel production in California,

supports our conclusion that there is

continuing uncertainty regarding

Arizona's sources of fuel supplies as

indicated in the 1998 study and 1999

report.

- ACLPI also states that EPA relied on

incomplete information by failing to

consider the availability (as of January

1, 20065) of similar 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 a result of (1) the permissible use of

substitutes for LED fuel that achieve

equivalent NOx reductions but not

necessarily equivalent PM reductions,

and (2) recent changes that removed the

low sulfur requirement from the LED

rule. See 70 FR 58325. We note that

California has made the low sulfur

requirement of its CARB diesel rule

more stringent, implementing a 15 ppm

sulfur content requirement as of

5As noted above, the LED start date for retailers

has now been moved to January 31, 2006, following

issuance by EPA of fuel waivers dated September

27 and October 18, 2005, as a result of the supply

disruptions caused by Hurricanes Katrina and Rita.

See the EPA website noted above for copies of the

relevant waivers. Additionally, EPA has approved

two subsequent SIP revisions making changes to the

LED fuel program. See 70 FR 17321 (April 6, 2005)

and 70 FR 58325 (October 6, 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 both highway and

nonroad diesel fuel. (See footnote 8 for

a brief description of these

requirements.)

A significant difference between

CARB diesel and the Texas LED fuel

program is the ability of fuel 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 of low

sulfur gasoline, at least until all relevant

EPA requirements for low sulfur

gasoline have been implemented, or by

the use of diesel 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 if CARB diesel fuel were to be

required in the Maricopa County area.

Another significant difference

between CARB diesel and the Texas

LED fuel program is the elimination in

the latter of the low sulfur requirement.

EPA approved this change into the

relevant Texas ozone SIPs because the

low sulfur.requirement did not directly

reduce the VOC or NOx emissions that

are precursors to the formation' of ozone,

and because EPA's requirements for low

sulfur diesel fuel will begin

implementation in 2006 and 2007. 8

6 See Section 2281(a)(2)-(3) of the California

Diesel Fuel Regulations, with amendments effective

August 14, 2004, at the following Web site: http://

www.arb.ca.gov/fuels/diesel/081404dslregs.pdf.

7See Sections 114.312(f) and 114.318 of the LED

fuel program regulations, which provide for

alternative diesel fuel formulations and alternative

emission reduction plans, at the following Web site:

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 better reductions of

NOx and PM, three of the four alternative diesel

fuel formulation approval letters to date have cited

NOx reductions alone, or (in one case) reductions

of NOx and hydrocarbons, but not PM, as the basis

for approval. (See approval letters for TXLED-A00001, dated May 10, 2005, TXLED-A-00005, dated

December 13, 2005, and TXLED-A-00006, dated

April 26, 2006, at the 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 strategy that is

achieved through diesel fuel or early gasoline sulfur

reduction offsets that meet specified NOx reduction

requirements or a combination of such strategies.

8 As noted in the proposed rule, federal

requirements for low sulfur diesel fuel for nonroad

use will be implemented at 15 ppm in 2010;

None of the*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 SO 2

or PM-10 nonattainment areas in the

eastern and central areas of Texas (the

LED covered area), and no monitored

violations of these 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 of CARB diesel fuel

in Texas is not compelling. 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 in Texas, not PM nonattainment

areas.

Comment 3: Fuel storage and supply:

ACLPI comments that EPA raises a

potential problem of future fuel storage

and supply but does not evaluate it

except by relying on hypothetical

observations of a single ADWM

employee. ACLPI states that since the

presumption when evaluating potential

BACM is in favor of including the

control measure unless a reasoned

justification is offered to exclude it, this

potential problem is not enough to

justify excluding it.

Response: Although ACLPI describes

this "potential problem" as one of fuel

storage and "supply," EPA's proposed

rule more accurately describes the scope

of the problem as fuel storage and

"segregation." If the nonroad diesel fuel

for the Maricopa County area were

CARB diesel, there would be a third

type of diesel fuel in addition to the two

beginning in 2007, the federal requirement for low

sulfur diesel fuel for nonroad use will begin

implementation at 500 ppm. Federal requirements

for low sulfur diesel fuel for highway use will be

implemented at 15 ppm in 2006. 70 FR 70498

(November 22, 2005). As noted in the MAG plan, Arizona already restricts the sulfur content of

nonroad diesel fuel in the Maricopa County area to

500 ppm. (MAG plan, 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

(Cleaner Burning Gasoline for the

Maricopa County area, oxygenated

gasoline for Tucson in the winter, and

conventional gasoline for the rest of the

state), as well as jet fuel, must be 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 to be suitable for another use. 9

The Arizona Department of Weights

and Measures (ADWM) is the State

agency responsible for implementing

and enforcing fuels requirements in the

State. The cited employee, the Air and

Fuel Quality Program Manager,

regularly gathers information from

representatives of fuel suppliers and

distributors about the storage of

different types of fuel for distribution in

the State as part of a routine effort to

assess the potential for fuel supply

interruptions. This employee regularly

reports on this information to the

Governor's office as part of an effort to

anticipate and resolve potential

problems with fuel supply or demand. 10

Thus, this employee has the authority

and the experience to know if tank

farms for fuel storage in the Maricopa

County area are at maximum capacity."

Additionally, ADEQ notes in its '

August 1, 2005 comment letter on our

proposed rule that "breakout tankage"

does not exist on the eastern part of the

pipeline. Breakout tankage, unlike the

storage tanks located in the Maricopa

9 Additionally, as noted in our proposed rule, if

nonroad diesel fuel is not kept segregated strictly

for nonroad use, and it is available for use by both

on-road vehicles as well as nonroad engines and

equipment, the nonroad diesel fuel would be

preempted just as if it were intended only for use

by on-road vehicles. 70 FR at 38066, footnote 8.

1o See December 22, 2005 Memorandum,

"December 20, 2005 telephone conversation with

Duane Yantorno, Air and Fuel Quality Program

Manager, Arizona Department of Weights and

Measures, Ira Domsky, Deputy Director. Division of

Air Quality, Arizona Department of Environmental

Quality, Carol Weisner, EPA Region 9, and Wienke

Tax, EPA Region 9, on Feasibility of Requiring

CARB Diesel Fuel in Maricopa County PM-10

Nonattainment Area." Yantorno confirmed the next

day, after speaking with representatives of fuel

suppliers and/or distributors, that the two large

tank farms in the Maricopa area are at or near

maximum capacity. One of the facilities might be

able to acconfiodate a different type of fuel for

storage, but the other could not.

I' These tank farms are the large terminal tanks

available for storing fuel once the fuel has been off,

loaded from a pipeline or other distribution

method.

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

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. 12 ADEQ comments

that refiners from Texas or New 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'" for storing the fuel

separately.

Comment 4: Fueling outside Maricopa

County: ACLPI comments that EPA

relies on speculation that nonroad

diesel fuel users will refuel outside the

nonattainment area to avoid paying the

higher cost of CARB 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

of the Texas low emission diesel fuel

control.

Response: It is the size of the covered

area, as well as the incentive to avoid

the higher cost of CARB diesel fuel, that

EPA cited as its principal reasons for the

uncertainty in effectiveness of

implementing CARB diesel in the

Maricopa area for nonroad engines and

equipment alone. 70 FR 38064. Because

of the markedly different circumstances,

ACLPI's reliance on statements from the

Texas LED SIP approval are misplaced.

Texas will require sale of LED fuel

which, as noted in response to -

Comment 2 above, is not equivalent to

CARB diesel fuel, for use by both onroad vehicles and nonroad engines and

equipment in an area that includes 110

counties in eastern and central Texas

with borders from 153 to 454 miles

wide, as noted in the excerpt quoted by

ACLPI. This area includes most of the

largest cities in Texas: 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 area that would

be covered by a CARB 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

12 See December 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 of the requirement would

be virtually impossible because it would

be relatively easy to evade, either by

purchasing Federal nonroad diesel fuel

outside the covered area, or by

purchasing Federal highway diesel fuel

within the covered area.13

In both California and Texas, the size

of the covered areas and the application

of the 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. MSM Demonstration and Extension

of Attainment Date

Comment 5: ACLPI states that,

because EPA did not undertake a new

analysis of CARB diesel as a MSM for

purposes of the 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 of the attainment date

extension is limited. The Court

concluded that "[w]e also remand the

question of Arizona's eligibility for the

extension, insofar as that question

depends on EPA's determination

regarding MSM." (Emphasis added). 381

F. 3d at 487. Therefore to the extent that

ACLPI intends to incorporate by

13 For Federal tax purposes, nonroad diesel fuel

is dyed red to distinguish it easily from highway

diesel fuel. Both Federal and Arizona excise taxes

apply to highway diesel fuel but not to nonroad

diesel fuel. Arizona law (as noted in ADEQ's

August 1, 2005 comment letter) provides for

refunds to users of taxed highway diesel fuel who

demonstrate they actually used the fuel in nonroad

equipment. This ability to seek a refund means the

Arizona excise tax on highway diesel fuel ($0.26

per gallon) is probably not a significant obstacle to

someone who wants to avoid the presumably higher

cost of CARB diesel by purchasing highway diesel

fuel which would not be subject to the CARB diesel

fuel requirements. EPA notes, however, that

Arizona sales and use tax (8% of the purchase price

of the 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 of Revenue Audits, Arizona

Department of Transportation, and Carol Weisner,

EPA Region 9, regarding Arizona excise tax on

diesel fuel."

14 EPA notes that the discussion of MSM begins

on p. 24 of ACLPI's Opening Brief.

reference its comments and arguments

on aspects of the extension other than

MSM, it is precluded from raising them

in this rulemaking.

While ACLPI does not specify, we

.assume that by "previous rulemakings"

it is referring to EPA's proposed

approvals of the 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

at 48722-48725 and EPA's Response

Brief in Vigil at 10-12 and 30-34.

Discussions also relevant to these issues

can be found in EPA's proposed

approvals of the serious PM-IO plan for

the Maricopa County area at 65 FR

19964 and 66 FR 50252.

III. Final Action

In response to the Vigil Court's

remand, EPA is again approving the

BACM demonstration in the MAG plan

for the source categories of on-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 for purposes of

PM-10 attainment. CARB diesel is not

feasible for nonroad engines and

equipment because of the 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 of the 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 of the 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 in effect. 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 of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

43983

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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" (66 FR 28355, May

22, 2001). This action merely approves

state law as meeting Federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104-4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000). This

action also does not have-Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves a state rule implementing a

Federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885, April 23, 1997),

because it is not economically

significant.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in'place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by October 2, 2006.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

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,

Acting Regional Administrator, Region IX.

[FR Doc. 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

Priorities List

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Technical Correction of final

partial deletion of the Motor Wheel

Disposal Superfund Site from the

National Priorities List.

SUMMARY: On June 23, 2006 (70 FR

36019) EPA published a technical

correction to a final notice of deletion

from the National Priorities List for the

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 of August 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:

Information Repositories: 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 of intent to

delete 3.45 acres of land from the Motor

Wheel Disposal Site from the National

Priorities List; request for comments,"

and on June 22, 2000 (65 FR 38774), a

"Direct final notice of deletion for 3.45

acres of land for the Motor Wheel

Superfund Site from the National

Priorities List (NPL)." The EPA is

publishing this Technical Correction to

the June 22, 2000, final notice of

deletion due to errors that were

published in that notice, a subsequent

technical correction dated June 23,

2006, and in the National Priorities List

at 40 CFR part. 300, Appendix B. After

review of the final notice of deletion

and the National Priorities List, EPA is

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