[Federal Register Volume 67, Number 75 (Thursday, April 18, 2002)]
[Proposed Rules]
[Pages 19148-19151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9494]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-076-SIP; FRL-7172-5]


Finding of State Implementation Plan Inadequacy; Arizona--Salt 
River Monitoring Site; Metropolitan Phoenix; PM-10 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to find that the State implementation plan 
(SIP) for the Metropolitan Phoenix (Maricopa County), Arizona PM-10 
nonattainment area is substantially inadequate to attain the 24-hour 
particulate (PM-10) national ambient air quality standard (NAAQS) at 
the Salt River monitoring site, a small subarea of the nonattainment 
area. As a result, EPA is proposing to require the State of Arizona to 
submit a SIP revision to correct the inadequacy.

DATES: Comments on this proposal must be received in writing by May 20, 
2002.

ADDRESSES: Comments should be mailed to: Frances Wicher, Office of Air 
Planning (AIR-2), EPA Region 9, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    This document and information on the PM-10 plans for the 
metropolitan Phoenix area are also available as electronic files on 
EPA's Region 9 Web Page at www.epa.gov/region09/air.

FOR FURTHER INFORMATION CONTACT: Frances Wicher, Office of Air Planning 
(AIR-2), U.S. Environmental Protection Agency, Region 9, 75 Hawthorne 
Street, San Francisco, California 94105. (415) 947-4155. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:   

    Note: In this document, ``we,'' ``us'' and ``our'' refer to EPA. 
``CAA or the Act'' refers to the Clean Air Act as amended in 1990 
and subsequently. ``PM-10'' refers to particulate matter with a 
diameter of 10 microns or less. ``24-hour standard'' refers to the 
24-hour National Ambient Air Quality Standard for PM-10 established 
at 40 CFR 50.6(a). ``SIP'' or ``plan'' refers to a state 
implementation plan. ``ADEQ'' is the Arizona Department of 
Environmental Quality. ``BACM'' and ``RFP'' are acronyms, 
respectively, for best available control measure and reasonable 
further progress.

I. Summary of Today's Proposal

    In 1997, we approved an attainment demonstration as part of the 
Metropolitan Phoenix serious area PM-10 SIP that showed the 24-hour PM-
10 standard would not be violated at the

[[Page 19149]]

Salt River site after 1998. However, data from the ambient air quality 
monitor located at the Salt River site\1\ shows continuing violations 
of the 24-hour standard. Based on these continuing violations, we 
propose to find that the SIP is substantially inadequate to provide for 
attainment of the 24-hour standard at the Salt River site. Under CAA 
section 110(k)(5), once we determine that a state's SIP is 
substantially inadequate to attain a national ambient air quality 
standard, we must require that state to revise its SIP to correct the 
inadequacy.
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    \1\ The Salt River site is located in south Phoenix next to the 
Salt River. The Salt River site is the area centered around the Salt 
River monitor located near 19th Avenue and Lower Buckeye Road.
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    Based on the proposed finding of inadequacy, we are also proposing 
to require that the State of Arizona revise its serious area PM-10 SIP 
to assure expeditious attainment of the 24-hour PM-10 standard for the 
Salt River monitoring site and submit these revisions to EPA no later 
than 18 months after publication of the final rule for this proposal.

II. Background to Today's Proposals

A. The Metropolitan Phoenix Serious Area PM-10 Plan

    The Phoenix area violates both the annual PM-10 standard of 50 
g/m\3\ and the 24-hour standard of 150 g/m\3\. 40 CFR 
50.6. In 1996, the Phoenix area was classified as a serious PM-10 
nonattainment area under the CAA and required to develop a 
nonattainment plan that provided for expeditious attainment of both 
standards and met the other applicable CAA plan requirements for 
serious areas. See 61 FR 21372 (May 10, 1996). Since 1996, Arizona has 
made several SIP submittals that collectively address these planning 
requirements and we have acted on them in several rulemakings. For more 
background on the Phoenix PM-10 SIP and our actions on it, please see 
65 FR 19964, 19965 (April 13, 2000) and 66 FR 50252, 50253 (October 2, 
2001) and the Technical Support Documents for these actions.
    In today's proposal, we are concerned with the Phoenix PM-10 SIP's 
provisions for attaining the 24-hour standard. In May, 1997, ADEQ 
submitted the Plan for Attainment of the 24-hour PM-10 Standard--
Maricopa County PM-10 Nonattainment Area, as a SIP revision. This plan, 
known as the microscale plan, included attainment and RFP 
demonstrations for the 24-hour PM-10 standard at the Salt River air 
quality monitoring site as well as three other ``microscale'' 
monitoring sites in the Phoenix area (Maryvale, Gilbert, and West 
Chandler). The demonstration for the Salt River site showed that, with 
additional controls adopted by the local air quality agencies, Maricopa 
County Environmental Services Department, attainment at the site would 
occur by May 1998. We approved the attainment and RFP demonstrations 
for the Salt River site and Maricopa County's controls on August 4, 
1997. See 62 41856.
    Since 1997, Arizona has made two other submittals to address 24-
hour exceedances in the Phoenix area. The two submittals are the 1999 
Maricopa Association of Governments (MAG) PM-10 plan and the June 2001 
Agricultural Best Management Practices (BMP) plan. The MAG plan is the 
principal part of the overall Phoenix serious area plan and uses the 
urban airshed model (UAM) to evaluate 24-hour exceedances in the 
Phoenix nonattainment area and includes additional detailed analysis 
for the two microscale sites which were impacted by agricultural 
sources. Regarding the Salt River monitoring site, the plan states that 
it presents a unique situation that is difficult to model with UAM. See 
MAG plan, Appendix A, Exhibit 7, p. VI-11. The MAG plan, however, does 
not further evaluate the 24-hour violations at the Salt River site, 
relying instead on the approved attainment demonstration in the 1997 
microscale plan.
    The BMP plan revises the microscale analysis in the MAG plan by 
demonstrating that the Arizona's agricultural BMP rule provides 
sufficient emission reductions to demonstrate attainment of the 24-hour 
PM-10 standards at the two microscale sites, Gilbert and West Chandler, 
impacted by agricultural source. The BMP plan did not include any 
analysis of the Salt River site.
    In January, 2002,\2\ we approved the MAG plan, the BMP plan, and 
several rules which, combined with the earlier microscale plan, 
constituted the Phoenix serious area plan. With these approvals, we 
have approved all the CAA-required provisions in the Phoenix serious 
area PM-10 plan.
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    \2\ The final approval was signed on January 14, 2002 but has 
not been published in the Federal Register as of the signature date 
on this proposal.
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B. Clean Air Act Provisions for Inadequate SIPs

    To assure that SIPs provide for timely attainment, section 
110(k)(5) authorizes EPA to find that a SIP is substantially inadequate 
to meet a CAA requirement, and to require (``call for'') the State to 
submit, within a specified period not to exceed 18 months, a SIP 
revision to correct the inadequacy. This requirement for a SIP revision 
is known as a ``SIP call.'' Specifically, section 110(k)(5) provides, 
in relevant part:

    Whenever the Administrator finds that the applicable 
implementation plan for any area is substantially inadequate to 
attain or maintain the relevant [NAAQS] * * *, the Administrator 
shall require the State to revise the plan as necessary to correct 
such inadequacies. The Administrator shall notify the State of the 
inadequacies, and may establish reasonable deadlines (not to exceed 
18 months after the date of such notice) for the submission of such 
plan revisions.

III. The Proposed Inadequacy Finding and Call for a SIP Revision

    According to the approved attainment demonstration in the Phoenix 
serious area plan, the Salt River site should not have violated the 24-
hour PM-10 standard after May, 1998. See 62 FR 31026, 31035. The site, 
however, continues to violate the standard.\3\ Based on data recorded 
in EPA's Aerometric Information Retrieval System (AIRS), the Salt River 
monitor had 51 expected exceedances in 1999, 43 expected exceedances in 
2000, and 19 expected exceedances through 3 quarters in 2001 or an 
average of at least 37 expected exceedances per year over the past 
three years. \4\ The 24-hour PM-10 standard is violated when the 
expected number of exceedances average more than 1 per year over a 
three year period. See 40 CFR 50.6(a). These continuing violations 
clearly show that the existing attainment demonstration is flawed.
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    \3\ The Salt River site, approximately 32 square miles in area 
or about 1 percent of the 2880 square mile Phoenix nonattainment 
area, is located in an industrial area and its 24-hour violations 
are most likely due in large part to the industrial sources that 
surround it. This is in marked contrast to other monitoring sites in 
the rest of the Phoenix nonattainment area where 24-hour exceedances 
are almost exclusively due to windblown fugitive dust. The recently-
approved provisions of the Phoenix serious area plan discussed above 
focused on windblown fugitive dust sources and adequately addressed 
24-hour exceedances in the great majority of the Phoenix 
nonattainment area.
    \4\ Ambient concentrations of PM-10 are generally not measured 
daily but rather are measures only one day in every six, the minimum 
monitoring schedule for most PM-10 monitors in EPA's regulations. 
See 40 CFR 58(d)(1). To account for the unmonitored days, the number 
of recorded exceedances is adjusted by multiplying it by six. See 40 
CFR part 50, appendix K. Therefore, one exceedances at a monitor 
operating one day in six equals, in the most simple case, six 
expected exceedance days.
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    Because the attainment demonstration approved into the Phoenix area 
PM-10 SIP in 1997 is clearly faulty and there has been no substitute 
attainment demonstration submitted to date, we

[[Page 19150]]

propose to find that the Phoenix area PM-10 SIP is substantially 
inadequate to attain the 24-hour PM-10 standard at the Salt River site. 
Therefore, pursuant to CAA section 110(k)(5), we propose to require the 
State of Arizona to submit a revision to the Phoenix area SIP that 
corrects this deficiency and complies with all other applicable CAA 
requirements as described below.

IV. The Proposed Schedule and Requirements for the Revised SIP 
Submittal

A. Submittal Schedule

    Under section 110(k)(5) of the CAA, we have the authority to 
establish the date by which a state must respond to a SIP call. This 
date can be no later than 18 months after the SIP call is issued.
    We propose that the date for submitting the revisions to the Salt 
River attainment demonstration and related provisions described below 
be 18 months after publication of the final rule, or approximately late 
October, 2003. This date is appropriate in light of the substantial 
technical work that must precede the submittal, including a year of 
detailed monitoring and inventory work to identify contributing 
sources; preparation and validation of air quality modeling; research 
on and development and adoption of necessary controls; and a public 
hearing and opportunity for public comment.

B. SIP Requirements

    CAA section 172(d) requires that any SIP revision for a 
nonattainment area that is required to be submitted in response to a 
SIP call must correct the deficiency that is the basis for the SIP call 
and must also meet all other applicable plan requirements of section 
110 and title 1, part D.
    We are proposing to find deficient a specific but limited provision 
of the Phoenix area's approved serious area SIP. The identified 
deficiency--the attainment demonstration for the Salt River site--will 
necessitate revisions to other provisions of the approved SIP but does 
not require that the State revise its entire plan for attaining the 24-
hour standard in the metropolitan Phoenix nonattainment area.
    A PM-10 attainment demonstration consists of two components: a 
control strategy and a technical evaluation, using an air quality 
model, of the effect of that control strategy on future air quality. A 
deficient attainment demonstration means that there are problems in one 
or both of these components; therefore, to correct a deficient 
attainment demonstration a state must evaluate and revise, as 
necessary, both components. Additionally, for PM-10 plans, the 
demonstration of reasonable further progress and the quantitative 
milestones required by CAA sections 172(c)(1) and 189(c) are derived 
from the control strategy and the attainment demonstration and must 
also be revised when they are revised.
    The CAA establishes specific minimum requirements for control 
strategies in serious area PM-10 plans. Section 189(b)(1)(B) requires 
that such plans provide for the implementation of BACM. Pursuant to CAA 
section 188(e), we have granted Arizona's request to extend the 
attainment date for the 24-hour standard in the Phoenix nonattainment 
area to December 31, 2006. For such extension areas, section 188(e) 
requires that SIP include to our satisfaction the most stringent 
measures found in other states' implementation plans or achieved in 
practice.
    Thus, in response to a final SIP call on the Salt River attainment 
demonstration, Arizona will need to submit the following:
    (a) A demonstration based on air quality modeling that the plan 
will provide for attainment no later than December 31, 2006 at the Salt 
River site. CAA sections 189(b)(1)(A) and 188(e).
    (b) Provisions for implementing BACM as expeditiously as 
practicable on all sources or source categories that contribute 
significantly to exceedances of the 24-hour PM-10 standard in the Salt 
River area. CAA section 189(b)(1)(B).\5\ In the SIP revision, Arizona 
need only provide for the implementation of BACM on those significant 
sources or source categories for which we have not already approved 
BACM.
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    \5\ Under CAA section 189(b)(1)(B), BACM is to be implemented no 
more than 4 years after an area is reclassified from moderate to 
serious for PM-10, or June 10, 2000 for the Phoenix area. Because 
this deadline is now passed, the applicable deadline become ``as 
expeditiously as practicable'' under Delaney v. EPA 898 F.2d 687 
(1990).
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    (c) A demonstration that the revised SIP includes, and provides for 
expeditious implementation of, the most stringent measures found in the 
implementation plan or achieved in practice that are feasible for the 
Phoenix nonattainment area for each significant source or source 
category for which we have not approved a MSM showing.
    (d) A demonstration that the revised SIP provides for reasonable 
further progress in the Salt River area. The SIP revision must also 
provide for quantitative milestones for the Salt River area which are 
to be achieved every 3 years and which are consistent with the RFP 
demonstration. To be consistent with the serious area plan, the 
milestone dates should be December 31, 2003 and December 31, 2006.
    The SIP revision must also meet the general requirements applicable 
to all SIPs including reasonable notice and public hearing under 
section 110(l), necessary assurances that the implementing agencies 
have adequate personnel, funding and authority under section 
110(a)(2)(E)(i) and 40 CFR 51.280 to carry out the SIP; and the 
description of enforcement methods for the adopted controls as required 
by 40 CFR 51.111.
    Finally, any controls adopted to demonstrate attainment at the Salt 
River site or to meet the BACM or MSM requirements must be applied to 
all similar sources in the Phoenix nonattainment area. The Salt River 
monitor, as with all the microscale monitors, was sited for two 
purposes: first, to measure air quality in the local area and second, 
to be representative of air quality at other sites in the Phoenix 
nonattainment area with similar sources. See Microscale plan, Appendix 
A, p. 2-1. The requirement to adopt controls necessary to demonstrate 
attainment at the Salt River site addresses the first purpose, to 
reduce PM-10 levels in the local area to healthy levels, while the 
requirement to apply those controls to similar sources in other areas 
of the nonattainment area addresses the second purpose, to reduce PM-10 
levels in similar, but unmonitored, areas.
    If Arizona fails to submit the required SIP revisions in response 
to a final SIP call, we are required to issue a finding that the State 
failed to make a required SIP submittal under section 179(a), a finding 
which starts a 18 month clock for the implementation of sanctions under 
the CAA and a two year clock for a federal implementation plan. See 40 
CFR 52.31.

V. Administrative Requirements

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, Regulatory Planning and Review.
    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.
    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive

[[Page 19151]]

Order 12866, and (2) concerns an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. This rule is not subject to Executive Order 13045 because it 
is not an economically significant regulatory action under Executive 
Order 12866.
    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined to include 
regulations that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs on the States, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the proposed regulation. This proposed SIP 
call is required by the Clean Air Act because the current SIP is 
substantially inadequate to attain the 24-hour PM-10 standard. 
Arizona's direct compliance costs will not be substantial because the 
SIP call requires Arizona to submit only those revisions necessary to 
address the SIP deficiency and applicable Clean Air Act requirements. 
Finally, EPA has consulted with the State and local agencies prior to 
making this proposal.
    This proposed rule, if finalized, will 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, because it is in keeping with the 
relationship and the distribution of power and responsibilities between 
EPA and the States as established by the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
proposed rule.
    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, November 6, 2000), requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.'' Executive Order 13175 does not apply to 
this proposed rule because the proposed rule, if finalized, will not 
effect any tribal government or any tribal lands and thus will have no 
tribal implications.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any proposed rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule, if finalized, 
will not have a significant economic impact on a substantial number of 
small entities. Courts have interpreted the RFA to require a regulatory 
flexibility analysis only when small entities will be subject to the 
requirements of the rule. See, Motor and Equip. MFRS. Ass'n v. Nichols, 
142 F.3d 449 (D.C. Cir. 1985).
    This proposed SIP call, if finalized, will not establish 
requirements applicable to small entities. Instead, it will require 
Arizona to develop, adopt, and submit an attainment demonstration and 
related requirements but will leave entirely to Arizona the tasks of 
determining how to obtain the emission reductions necessary to show 
attainment, including which entities to regulate, and of adopting the 
necessary regulations. Because the rule, if finalized, will not 
establish requirements applicable to small entities, I certify that 
this action does not have a significant impact on a substantial number 
of small entities.
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State, local, or 
tribal governments in the aggregate; or to 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 
for any rule requiring a budgetary impact statement. 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 proposed rule does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more in any one year to either State, local, or tribal governments in 
the aggregate, or to the private sector and has therefore not prepared 
a budgetary impact statement. This proposed rule, if finalized, will 
not significantly or uniquely impact any small governments.
    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    In making a finding of SIP deficiency, EPA's role is to review 
existing information against previously established standards (in this 
case, what constitute a violation of the 24-hour PM-10 standard). In 
this context, there is no opportunity to use VCS. Thus, the 
requirements of NTTAA section 12(d) (15 U.S.C. 272 note) do not apply.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: April 10, 2002.
Nora L. McGee,
Acting Regional Administrator, Region IX.
[FR Doc. 02-9494 Filed 4-17-02; 8:45 am]
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