[Federal Register Volume 67, Number 127 (Tuesday, July 2, 2002)]
[Rules and Regulations]
[Pages 44369-44371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16271]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AZ-076-SIP; FRL-7238-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA finds 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) air quality standard at the Salt River monitoring site, a small 
subarea of the nonattainment area. As required by the Clean Air Act 
upon a finding of SIP inadequacy, EPA is requiring that the State of 
Arizona submit a SIP revision to correct the inadequacy.

EFFECTIVE DATE: August 1, 2002.

ADDRESSES: You can inspect a copy of the administrative record for this 
action at EPA's Region IX office during normal business hours. See 
address below.
    This document, the proposal for this final rule, 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 http://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. Email: 
[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. Background to Today's Action

    The Phoenix area is classified as a ``serious'' PM-10 nonattainment 
area and violates both the annual PM-10 standard of 50 [mu]g/
m3 and the 24-hour standard of 150 [mu]g/m3. 40 
CFR 50.6. Between 1997 and 2001, Arizona has made several SIP 
submittals that collectively address the CAA's planning requirements 
for serious PM-10 nonattainment areas for both PM-10 standards. We have 
acted on these submittals 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 those actions.
    In today's action, 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 agency, the 
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 FR 41856. Since the microscale plan, Arizona 
has made no other submittals that address the 24-hour exceedances at 
the Salt River site.
    According to its approved attainment demonstration, 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.\1\ 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. The 24-hour 
PM-10 standard is violated when the expected number of exceedances 
averages more than 1 per year over a three year period. See 40 CFR 
50.6(a). Thus the continuing violations at the Salt River monitor 
clearly show that the existing attainment demonstration for the site is 
faulty.
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    \1\ 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.
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    To assure that SIPs provide for timely attainment, section 
110(k)(5) authorizes EPA to find that a SIP is substantially inadequate 
to meet an 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.''
    On April 18, 2002 at 67 FR 19148, we published our proposed finding 
that the Arizona SIP is inadequate to assure attainment of the 24-hour 
PM-10 standard at the Salt River Site. Based on this proposed finding, 
we also proposed a SIP call that would require Arizona to revise its 
SIP to correct the deficiency and submit the corrections no later than 
18 months after the publication of the final rule. We requested 
comments on our proposals and provided a 30-day comment period, which 
closed on May 20, 2002. We received no comments.

II. The Inadequacy Finding and Call for a SIP Revision

A. Inadequacy Finding and SIP Call

    Because the attainment demonstration approved into the Phoenix area 
PM-10 SIP in 1997 is faulty and there has been no substitute attainment 
demonstration submitted to date, we find that the

[[Page 44370]]

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 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.

B. Submittal Schedule

    We set the date for submitting the revisions to the Salt River 
attainment demonstration and related provisions described below as 18 
months after the effective date of the final rule, or February 2, 2004.

C. SIP Requirements

    To fully respond to this SIP call for 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 for 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).\2\ In the SIP revision, Arizona 
need only provide for the implementation of BACM for those significant 
sources or source categories for which we have not already approved 
BACM.
    (c) A demonstration that the revised SIP includes, and provides for 
expeditious implementation of, the most stringent measures (MSM) 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 already 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.
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    \2\ 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 has now passed, the applicable deadline is ``as 
expeditiously as practicable'' under Delaney v. EPA, 898 F.2d 687 
(1990).
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    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.
    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 an 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.

VI. Administrative Requirements

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, Regulatory Planning and Review.
    This 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 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 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 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 SIP 
call.
    This rule 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 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 rule because this rule 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

[[Page 44371]]

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. For the reasons described in the 
proposal, EPA certified that this action does not have a significant 
impact on a substantial number of small entities. See 67 FR 19148, 
19151.
    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 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 constitutes 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 
to this rule.
    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 September 3, 2002. 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, Intergovernmental 
relations, particulate matter.

    Dated: June 19, 2002.
Keith Takata,
Acting Regional Administrator, Region IX.
[FR Doc. 02-16271 Filed 7-1-02; 8:45 am]
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