Approval and Promulgation of State Implementation Plans; ArizonaMaricopa County Ozone Nonattainment Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ 68-0011; FRL-5835-8]

Approval and Promulgation of State Implementation Plans;

Arizona--Maricopa County Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a State

Implementation Plan (SIP) revision submitted by the State of Arizona on

April 29, 1997, establishing a summertime gasoline Reid Vapor Pressure

(RVP) limit of 7.0 pounds per square inch (psi) for gasoline

distributed in the Maricopa County (Phoenix) ozone nonattainment area.

Arizona has lowered the summertime RVP limit for this area to reduce

emissions of volatile organic compounds (VOC) in accordance with the

requirements of the Clean Air Act, as amended in 1990 (CAA). Arizona's

fuel requirement is not preempted by federal fuels requirements because

EPA is finding that the control measure is necessary for the Maricopa

area to attain the national ambient air quality standards (NAAQS) for

ozone and is approving the measure into the Arizona SIP.

DATES: This direct final rule is effective on August 11, 1997, unless

EPA receives adverse or critical comments by July 11,

[[Page 31735]]

1997. If such comments are received, EPA will withdraw this direct

final rule and publish a timely notice in the Federal Register.

ADDRESSES: Written comments should be sent to the Region IX contact

listed below. Copies of the SIP revision are available in the docket

(#AZ-RVP-97) for this rulemaking, which is open for public inspection

at the addresses below. A copy of this notice is also available on EPA,

Region IX's website at http://www.epa.gov/region09.

Air Planning Office (AIR-2), Air Division, Region IX, U.S.

Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA

94105

Arizona Department of Environmental Quality, Office of Outreach and

Information, First Floor, 3033 N. Central Avenue, Phoenix Arizona 85012

FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, Air Planning Office,

AIR-2, Air Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-

1225.

SUPPLEMENTARY INFORMATION:

I. Reid Vapor Pressure

Reid Vapor Pressure (RVP) is a measure of a gasoline's volatility

and is a measurement of the rate at which gasoline evaporates and emits

VOC; the lower the RVP, the lower the rate of evaporation. The RVP of

gasoline can be lowered by reducing the amount of its volatile

components, such as butane. Lowering RVP in the summer months can

offset the effect of summer temperature upon the volatility of

gasoline, which, in turn, lowers emissions of VOC. However, because VOC

is a necessary component in the production of ground level ozone in hot

summer months, reduction of RVP will help ozone nonattainment areas

like the Maricopa (Phoenix), Arizona, area attain the NAAQS for ozone

1 and thereby produce benefits for human health and the

environment.

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\1\ The Maricopa area is classified as a ``moderate'' ozone

nonattainment area under the CAA. 40 CFR 81.303.

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The primary emission benefits from low RVP gasoline come from

reductions in evaporative emissions; exhaust emission reductions are

very small or nonexistent. Because oxides of nitrogen (NOX)

are a product of combustion, they will not be found in evaporative

emissions, and low RVP gasoline will have little or no effect on

NOX.

II. State Submittal

Section 13 of Arizona House Bill (H.B.) 2001 (1993 Special

Session), originally codified in Arizona Revised Statutes (ARS) at

section 41-2083(E) 2, was passed by the Arizona legislature

on November 12, 1993. This provision limits the maximum summer vapor

pressure (or Reid vapor pressure) of gasoline fuel sold in the Maricopa

area to 7.0 psi beginning May 31, 1995 through September 30, 1995, and

will continue to apply from May 31 through September 30 of each year

thereafter. Gasoline distributed in the Maricopa area by refineries,

importers, carriers, retail stations and other end users who sell or

dispense gasoline must meet the 7.0 psi limit during those periods. The

State of Arizona submitted section 13 of H.B. 2001 to EPA as a SIP

revision on April 29, 1997.

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\2\ This section is currently codified in the ARS as section 41-

2083(F).

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III. Clean Air Act Requirements

In determining the approvability of a SIP revision, EPA must

evaluate the proposed revision for consistency with the requirements of

the CAA and EPA regulations, as found in section 110 and part D of the

CAA and 40 CFR part 51 (Requirements for Preparation, Adoption, and

Submittal of Implementation Plans).

For SIP revisions addressing fuel measures, an additional statutory

requirement applies. CAA section 211(c)(4)(A) prohibits state

regulation of a fuel characteristic or component for which EPA has

adopted a control or prohibition, unless the state control is identical

to the federal control. Section 211(c)(4)(C) provides an exception to

this preemption if the measure is approved in a SIP. EPA can approve

such a SIP provision if it finds that the control or prohibition is

necessary to achieve a NAAQS. EPA can make this finding if no other

measures exist that would bring about timely attainment or if other

measures exist and are technically possible to implement, but are

unreasonable or impracticable. See section 211(c)(4)(C). The

requirements of section 211(c)(4) are discussed in further detail

below.

IV. EPA Evaluation

A. General SIP Requirements

As discussed below, EPA has evaluated the submitted SIP revision

and has determined that it is consistent with the requirements of the

CAA and EPA regulations. On May 8, 1997, EPA found that the April 29,

1997 SIP revision conformed to EPA's completeness criteria in 40 CFR

part 51, Appendix V.

The SIP submittal contains: ARS 41-2083(E) (now section (F)) as

established in section 13 of 1993 Special Session House Bill 2001;

documentation of the public notice and hearing regarding the SIP

revision, dated March 17, 1994; evidence of State legal authority; and

VOC air quality modeling. Additional supporting information regarding

enforcement and compliance assurance for the SIP revision can be found

in the ARS (specifically in Chapter 15, Department of Weights and

Measures, of title 41) and the Arizona Administrative Code (ARC).

Arizona Department of Weights and Measures implements the RVP limit

and has the necessary authority under the ARS and ARC to obtain samples

(ARS 41-2066(A)), test (ARS 41-2083(c) and ARC R20-2-720), prohibit the

sale of non-conforming gasoline (ARS 41-2066(A)(2) and ARC R20-2-110),

and to impose civil penalties on any person who violates the fuel

requirements of any provision of ARS 41-2083 (ARS 41-2115(a)). EPA has

concluded that these provisions confer on the State the requisite

authority to enforce compliance with the 7 psi RVP limit.

B. Section 211(c)(4)

1. Federal Preemption

CAA section 211(c)(4)(A) preempts certain state fuel regulations by

prohibiting a state from prescribing or attempting to enforce any

control or prohibition on any characteristic or component of a fuel or

fuel additive for the purposes of motor vehicle emission control if the

Administrator has prescribed under section 211(c)(1) a control or

prohibition applicable to such characteristic or component of the fuel

or fuel additive, unless the state prohibition is identical to the

prohibition or control prescribed by the Administrator.

EPA first proposed to regulate summertime gasoline RVP in 1987 (52

FR 31274). EPA's gasoline RVP proposal resulted in a two-phased final

regulation that Congress incorporated into the CAA at section 211(h).

Phase I of the regulation took effect in 1990 (54 FR 11868) for the

years 1990 and 1991. Phase II of the regulation became effective in

1992 (55 FR 23658). These regulations are found in 40 CFR 80.27. Under

the regulations, the continental United States is divided into two

control regions, Class B and Class C. Generally speaking, the Class B

states are the warmer southern and western states, and Class C states

are the cooler northern states. The Phase II regulation

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limits the volatility of gasoline sold during the high ozone season to

9.0 psi RVP for Class C areas and 7.8 psi RVP for Class B ozone

nonattainment areas. Arizona is a Class B state and is therefore

required under the federal rule to meet the 7.8 psi RVP standard.

Arizona has recently requested to opt into EPA's reformulated

gasoline program (RFG). Should that opt in be approved as has been

proposed, then the applicable federal standard for RVP in the Maricopa

ozone nonattainment area would be dictated by the requirements of the

RFG program. Like the RVP rule, the RFG regulation also divides the

continental United States into two control regions: Region 1 and Region

2. The Maricopa area is in Region 1 and would be subject to a maximum

RVP limitation of 7.2 psi under the federal RFG program. See 40 CFR

80.41.

Because Arizona's fuel requirement for the Maricopa nonattainment

area limiting summertime RVP to 7.0 psi is not identical to the federal

fuel standards applicable to the fuel characteristic RVP (i.e., federal

phase II volatility limit of 7.8 psi or federal phase I RFG RVP limit

of 7.2 psi), Arizona's requirement is preempted unless it is in the

Arizona SIP.

2. Finding of Necessity

Section 211(c)(4)(C) allows a state to prescribe and enforce

controls or prohibitions on the use of a fuel or fuel additive for the

purposes of motor vehicle emission control if the control or

prohibition is contained in the applicable SIP. Section 211(c)(4)(C)

states that the Administrator may approve such provisions in a SIP:

if [s]he finds that the State control or prohibition is necessary to

achieve the national primary or secondary ambient air quality

standard which the plan implements. The Administrator may find that

a state control or prohibition is necessary to achieve that 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. The Administrator

may make a finding of necessity under this subparagraph even if the

plan for the area does not contain an approved demonstration of

timely attainment.

Thus, to implement a state low RVP requirement, a state must submit

a SIP revision adopting the state fuel control and must include

specific information showing the measure is necessary to meet the ozone

NAAQS, based on the statutory specifications for showing necessity.

The State, the Maricopa County air pollution control agency, and

the local jurisdictions in Maricopa County have adopted and implemented

a broad range of ozone control measures including the summertime low

RVP limit of 7.0 psi, an enhanced inspection and maintenance (I/M)

program, stage II vapor recovery, an employer trip reduction program,

many transportation control measures, and numerous stationary and area

VOC controls. See the MAG 1993 Ozone Plan and Addendum, Maricopa

Association of Governments, March 1994.

The State has also recently adopted additional ozone control

measures and undertaken additional planning efforts. In January of this

year, the State requested that the Maricopa nonattainment area be

included in EPA's reformulated gasoline (RFG) program to help avoid any

ozone NAAQS exceedances.3 Legislation passed in the 1997

session included adoption of California's off-road engine standards, a

state reformulated gasoline program,4 and new standards for

industrial cleaning solvents. Finally, the Arizona Department of

Environmental Quality (ADEQ) has developed a Voluntary Early Ozone Plan

(VEOP) including air quality modeling and additional control measures

beyond those included in the legislation.

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\3\ By letter dated January 17, 1997, Governor Symington of the

State of Arizona applied to EPA to include the Maricopa County

moderate ozone nonattainment area in the federal RFG program.

Pursuant to the Governor's letter and section 211(k)(6) of the CAA,

EPA proposed an effective date for the federal RFG program of June

1, 1997 or 30 days after the publication of the final notice,

whichever was later. See 62 FR 7164 (February 18, 1997).

\4\ The State RFG program for the Maricopa area has two phases.

By June 1, 1998, gasoline sold must meet standards similar to EPA's

Phase I RFG program or California's Phase II RFG program. Starting

May 1, 1999, gasoline must meet standards similar to EPA's Phase II

RFG program or California's Phase II RFG program.

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The State's RVP SIP submittal includes the Urban Airshed Model

(UAM) modeling demonstration from the draft VEOP. See Exhibit 6,

Appendix B of the SIP submittal. The modeling used 1996 as the base

year and evaluated the effects of existing and future control measures.

Arizona's low RVP requirement is built into the 1996 base year

inventory and modeled out to the 1999 5 and 2010 projected

attainment years.

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\5\ 1999 was chosen as the modeling year because it is the next

ozone attainment date in the Clean Air Act after 1996. See CAA

181(a)(1).

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In addition to a low RVP requirement, Arizona evaluated all

reasonable and practicable additional control measures that could be

implemented in the Maricopa area. The fifteen control measures that

were evaluated for 1999 are: (1) purge test in I/M (evaluated for

2010); (2) final I/M cutpoints; (3) I/M testing of constant 4-by-4

vehicles; (4) federal RFG (both Phase I and Phase II RFG at 7.2 psi

RVP; (5) adoption of California standards for off-road mobile sources;

(6) voluntary catalyst replacement program; (7) voluntary vehicle

retirement program; (8) voluntary commercial lawn mower replacement;

(9) new standards for the use of industrial cleaning solvents; (10)

alternative fuels tax incentives; (11) Motor Vehicle Division

registration enforcement and mandatory insurance; (12) pollution

prevention; (13) temporary power at construction sites; (14)

alternative-fueled buses; and (15) traffic light synchronization. See

Exhibit 5 of the SIP submittal.

Results from the VOC modeling demonstration showed that, using 7.0

psi RVP gasoline plus all other measures identified including federal

RFG, the Maricopa area still fails to attain the 12.0 ppm ozone NAAQS

in 1999.6 See Exhibit 5 of the SIP submittal. Given this

result, it is clear that the State's low RVP requirement is a necessary

component of the strategy to achieve timely attainment of the ozone

strategy in the Maricopa area and that there are no other measures that

are reasonable and practicable that would bring about timely

attainment.

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\6\ The State is continuing to evaluate the results of the UAM

modeling in the VEOP. See ``Status Report on the Metropolitan

Phoenix Voluntary Early Ozone Plan,'' April 1997. This continuing

evaluation may change some of the modeling results, such as the

effect of NOX controls on ozone concentrations. Given the

continued exceedances of the ozone standard in the Maricopa area and

the area's rapid rate of growth, it is very unlikely that revised

modeling would show that implementation of all identified control

measures, including the 7 psi RVP limitation, will reduce emissions

more than is necessary for timely attainment.

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C. Adjustment of the RVP Lower Limit in the Federal Reformulated Gas

Program

The federal RFG program includes standards for the RVP of gasoline.

The maximum RVP of RFG is controlled primarily because of the increased

VOC emissions that result from gasoline with higher RVP levels.

In addition, the minimum RVP standard addresses vehicle

driveability problems, such as poor starting and running, that can

occur when low volatility gasoline does not vaporize in the vehicle

engine. As a result, under 40 CFR 80.42(c)(1), the nationwide

summertime minimum RVP allowed for RFG is 6.6 psi, although under 40

CFR 80.45(f)(1) this minimum RVP standard changes to 6.4 psi beginning

in 1998.

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Arizona has requested that EPA approve a SIP revision setting a

maximum summertime volatility standard for the Maricopa area of 7.0

psi. As a result of today's approval of this SIP revision as well as

Arizona's opt-in to federal RFG, refiners supplying RFG for the

Maricopa area for use during the summer will have to meet an RVP

standard of 6.6 psi minimum (a federal standard) and 7.0 psi maximum

(the State imposed standard). At the March 18, 1997, public hearing and

in subsequent comments to the Agency regarding the Maricopa area opt-

in, various refiners suggested that this narrow RVP range would create

gasoline production problems because of testing variability, but that

this problem would be resolved if the RVP minimum standard were 6.4

psi. In addition, the American Automobile Manufacturers Association has

indicated in a letter to EPA, dated April 4, 1997, that a summertime

minimum RVP of 6.4 psi for use in the Maricopa area would not create

vehicle performance problems. (See docket AZ-RVP-97.)

For these reasons, EPA believes it is appropriate to allow a

minimum RVP of 6.4 psi for VOC-controlled RFG in the Maricopa area. As

a result, EPA will forego enforcement of the 6.6 psi minimum RVP

standard under section 80.42(c)(1) for VOC-controlled RFG used in the

Maricopa area, including RFG produced for the Maricopa market that is

used in non-RFG areas around Maricopa, provided the following

conditions are met.

(1) RFG must meet a minimum RVP standard of 6.4 psi during the

period May 1 through October 31.

(2) All other RFG must meet a minimum RVP standard of 6.6 psi.

(3) The refiner or importer must specify in the product transfer

documents, required in section 80.77, the VOC-controlled RFG is for use

only in the Maricopa covered area.

Enforcement of the RFG requirements in this manner will expire on

January 1, 1998. (See EPA letter dated, April 18, 1997, to Urvan

Sternfels, President, National Petroleum Refiners Association from

Steven A. Herman, Assistant Administrator).

D. Conclusion

EPA has evaluated the submitted SIP revision and has determined

that it is consistent with the CAA and EPA regulations. EPA has also

found that Arizona's 7 psi RVP limit is necessary for attainment in the

Maricopa ozone nonattainment area, as required by section 211(c)(4)(C)

for approval into the SIP. Therefore, Arizona's requirement to limit

summertime low RVP gasoline is being approved into the Arizona SIP

under section 110(k)(3) of the CAA as meeting the requirements of

section 110(a) and part D.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future implementation

plan. Each request for revision to the state implementation plan shall

be considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

EPA is publishing this document without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective August 11, 1997, unless, within 30 days of its publication,

adverse or critical comments are received.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective August 11, 1997.

V. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This federal action authorizes and approves requirements previously

adopted by the State, and imposes no new requirements. Therefore,

because this action does not impose any new requirements, the

Administrator certifies that it does not have a significant impact on

any small entities affected. Moreover, due to the nature of the

Federal-State relationship under the CAA, preparation of a flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in

expenditures to State, local, and tribal governments in the aggregate,

or to the private sector, of $100 million or more in any one year.

Under Section 205, EPA must select the most cost-effective and least

burdensome alternative that achieves the objectives of the rule and is

consistent with statutory requirements. Section 203 requires EPA to

establish a plan for informing and advising any small governments that

may be significantly or uniquely impacted by the rule.

EPA has determined that this approval action does not include a

Federal mandate that may result in expenditures of $100 million or more

to either State, local, and tribal governments in the aggregate, or to

the private sector in any one year. This Federal action authorizes and

approves requirements previously adopted by the State, and imposes no

new requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, will result from this

action.

D. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the Administrative Procedure Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted a report containing this rule and other

required information

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to the U.S. Senate, the U.S. House of Representatives and the

Comptroller General of the General Accounting Office prior to

publication of the rule in today's Federal Register. This rule is not a

``major rule'' as defined by section 804(2) of the APA as amended.

E. Petitions for Judicial Review

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 August 11, 1997. 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 it will 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, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Ozone,

Volatile organic compounds.

Note: Incorporation by reference of the State Implementation

Plan for the State of Arizona was approved by the Director of the

Federal Register on July 1, 1982.

Dated: May 28, 1997.

Felicia Marcus,

Regional Administrator.

For the reasons stated in the preamble, part 52, chapter I, title

40 of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

Subpart D--Arizona

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

2. Section 52.120 is amended by adding paragraph (c)(87) to read as

follows:

Sec. 52.120 Identification of plan.

* * * * *

(c) * * *

(87) New and amended fuel regulations for the following Arizona

Department of Environmental Quality plan revisions were submitted on

April 29, 1997, by the Governor's designee.

(i) Incorporation by reference.

(A) Arizona Revised Statutes.

(1) Section 13 of H.B, 2001 (A.R.S. Sec. 41-2083(E)), adopted on

November 12, 1993.

[FR Doc. 97-15093 Filed 6-10-97; 8:45 am]

BILLING CODE 6560-50-P