[Federal Register Volume 72, Number 161 (Tuesday, August 21, 2007)]
[Rules and Regulations]
[Pages 46564-46567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16223]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2006-0526; FRL-8446-1]


Approval and Promulgation of Implementation Plans; Arizona--
Phoenix PM-10 Nonattainment Area; Salt River Area Plan for Attainment 
of the 24-hour PM-10 Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval under the Clean Air Act (CAA) of 
provisions of the Revised PM-10 State Implementation Plan (SIP) for the 
Salt River Area submitted by the State of Arizona to EPA in October and 
November 2005. These submittals include adopted rules, resolutions and 
measures that address particulate matter (PM-10) emissions from 
fugitive dust sources.

DATES: Effective Date: This rule is effective on September 20, 2007.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2006-0526 for 
this action. The index to the docket is available electronically at 
www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne 
Street, San Francisco, California. While all documents in the docket 
are listed in the index, some information may be publicly available 
only at the hard copy location (e.g., copyrighted material), and some 
may not be publicly available in either location (e.g., Confidential 
Business Information). To inspect the hard copy materials, please 
schedule an appointment during normal business hours with the contact 
listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX, (415) 947-
4124, [email protected].

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

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On July 12, 2006 (71 FR 39251), EPA proposed to approve the rules, 
resolutions and measures listed below into the Arizona PM-10 SIP 
pursuant to the cited CAA sections. We also proposed on July 12, 2006, 
to approve Maricopa County Air Quality Department (MCAQD) Rule 316, 
``Nonmetallic Mineral Processing,'' adopted on June 8, 2005. In this 
final rule we are approving all the items listed below. EPA is not, 
however, including Rule 316 in this final action because we are re-
evaluating the rule and expect to address it in a separate rulemaking.

                                 Table I
------------------------------------------------------------------------
           Rule/measure/commitment              Relevant CAA section(s)
------------------------------------------------------------------------
Maricopa County Air Quality Department         189(b)(1)(B) and 188(e).
 (MCAQD) Rule 325, ``Brick and Structural
 Clay Products (BSCP) Manufacturing,''
 adopted August 10, 2005.
MCAQD Rule 310, ``Fugitive Dust,'' adopted     189(b) and 188(e) for
 April 7, 2004.                                 subsections 304.5 and
                                                502. 110(a) for other
                                                subsections.
MCAQD Rule 310.01, ``Fugitive Dust From Open   110(a).
 Areas, Vacant Lots, Unpaved Parking Lots,
 and Unpaved Roadways,'' adopted February 17,
 2005.
MCAQD Appendix C, ``Fugitive Dust Test         189(b) and 188(e) for
 Methods,'' adopted April 7, 2004.              subsection 3.3.2. 110(a)
                                                for other subsections.
MCAQD Appendix F, ``Soil Designations,''       189(b) and 188(e).
 adopted April 7, 2004.
MCAQD ``Application for Dust Control           189(b) and 188(e) for
 Permit,'' adopted June 22, 2005 \1\.           Section 2, subsections
                                                10 and 11, and Section
                                                3, subsection I. 110(a)
                                                for other subsections.
MCAQD `Guidance for Application for Dust       189(b) and 188(e) for
 Control Permit,'' adopted June 22, 2005 \2\.   Section 2, subsection
                                                13, and Section 3.
                                                110(a) for other
                                                subsections.
Maricopa County Board Resolution No. C-85-05-  189(b) for enforcement
 005-0-00, adopted January 19, 2005.            resource provisions of
                                                Measures 1 through 4.
                                                110(a) for other
                                                provisions, including
                                                Measure 5.
City of Phoenix Resolution No. 20114, adopted  110(a).
 June 16, 2004.
Resolutions from 17 municipalities \3\ and     110(a).
 the Arizona Department of Transportation,
 adopted on various dates.
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\1\ The reference to an adoption date of July 1, 2005, in the proposed
  rule was a clerical error (71 FR at 39253).
\2\ See footnote 1.
\3\ The reference to resolutions from 18 municipalities in the proposed
  rule was a clerical error (71 FR at 39253).


[[Page 46565]]

    These provisions were submitted as part of the Revised PM-10 State 
Implementation Plan for the Salt River Area, Arizona Department of 
Environmental Quality (ADEQ), September 2005 (Salt River plan) 
submitted to EPA on October 7, 2005, and the Revised PM-10 State 
Implementation Plan for the Salt River Area, Additional Submittals 
(Maricopa County Rule 310.01, Maricopa Dust Control Permit and Guidance 
for Application for Dust Control Permit), ADEQ, September 2005, 
Additional Submittal in November 2005, (Salt River supplement), 
submitted on November 29, 2005.
    Located in metropolitan Phoenix, the Salt River area is a 32-square 
mile subarea of the metropolitan Phoenix (Maricopa County) serious PM-
10 nonattainment area. For additional background on the Salt River 
portion of the Phoenix PM-10 nonattainment area, see 67 FR 19148 (April 
18, 2002) and 67 FR 44369 (July 2, 2002).\1\
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    \1\ On July 25, 2002, EPA approved multiple documents submitted 
to EPA by Arizona for the Phoenix 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 Maricopa Association of 
Governments (MAG) 1999 Serious Area Particulate Plan for PM-10 for 
the Maricopa County Nonattainment Area, February 2000 (MAG plan), 
that includes the Best Available Control Measures (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 (MSM) analysis (except for agriculture) for an 
attainment date extension to 2006 for both standards. EPA's July 25, 
2002, final action included approval of these elements of the MAG 
plan. 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). EPA revoked the annual PM-10 standard effective 
December 18, 2006. 71 FR 61144 (October 17, 2006).
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    We proposed to approve the specified rules, resolutions and 
measures in the Salt River plan and supplement because we determined 
that they complied with the referenced CAA requirements. CAA section 
189(b)(1)(B) requires serious area PM-10 plans to provide for the 
implementation of Best Available Control Measures (BACM). CAA section 
188(e) requires a state seeking an extension of a serious PM-10 area's 
attainment deadline to demonstrate to our satisfaction that its serious 
area plan includes the most stringent measures (MSM) that are included 
in the implementation plan of any state or are achieved in practice in 
any state and can be feasibly implemented in the area. Our proposed 
action contains more information on the rules, resolutions and measures 
and our evaluation of them.

II. Public Comments and EPA Responses

    EPA's proposed action provided a 30-day public comment period. 
During this period, we received comments from Joy Herr-Cardillo, 
Arizona Center for Law in the Public Interest (ACLPI). ACLPI's comment 
letter and our response are summarized below. We also received a 
comment letter from the Arizona Rock Products Association (ARPA) on our 
proposed action as it relates to MCAQD Rule 316. Because, as explained 
above, our final action does not include Rule 316, we are not 
responding to ARPA's letter here.
    Comment: ACLPI comments that our proposed approval does not address 
the contingency measures discussed in the Salt River plan. ACLPI states 
that the two measures designated as contingency measures for the 
Phoenix area in the Arizona State Implementation Plan are already 
implemented, and that the purpose of contingency provisions is to 
assure that the State will act promptly to protect public health if a 
milestone for reasonable further progress or the attainment date is not 
met. ACLPI notes that the attainment date for the Phoenix area is 
December 31, 2006. ACLPI contends that the CAA envisions additional 
measures which are automatically and immediately implemented if and 
when the deadline is missed without additional EPA or state action. 
ACLPI states that the fact that Arizona did not rely upon the existing 
contingency measures in its attainment demonstration is not relevant. 
ACLPI concludes that because the Salt River plan fails to include 
meaningful contingency measures, it does not satisfy the CAA 
requirements.
    Response: Our current action on the Salt River plan and supplement 
is limited to the rules, resolutions and measures in these documents. 
On June 6, 2007, we determined that the Phoenix area did not attain the 
24-hour PM-10 standard by the required December 31, 2006, deadline. 72 
FR 31183. Under CAA section 189(d), the State must therefore submit 
plan revisions by December 31, 2007, that provide for ``attainment of 
the PM-10 air quality standard and, from the date of such submission 
until attainment, for an annual reduction in PM-10 or PM-10 precursor 
emissions within the area of not less than 5 percent of the amount of 
such emissions as reported in the most recent inventory prepared for 
such area.'' In addition to the attainment demonstration and 5 percent 
requirements, the plan must address all applicable requirements of the 
CAA, including sections 110(a), 172(c), 176(c) and 189(c)(1).

III. EPA Action

    As discussed above, this action does not address MCAQD Rule 316. 
With respect to the other submitted rules, resolutions and measures 
that we proposed for approval on July 12, 2006 (71 FR 39251), and that 
are listed in Table I above, we received no comments that change our 
assessment that they comply with the applicable CAA requirements. 
Therefore, as authorized in CAA section 110(k)(3), EPA is fully 
approving the rules, resolutions and measures in Table I as meeting the 
CAA requirements indicated therein.

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, 
``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,

[[Page 46566]]

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 approves a state rule 
implementing a Federal standard.
    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. section 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. 
section 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 22, 2007. 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: July 12, 2007.
Keith Takata,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart D--Arizona

0
2. Section 52.120 is amended by adding paragraphs (c)(137) and (138)to 
read as follows:


Sec.  52.120  Identification of plan.

* * * * *
    (c) * * *
    (137) The Administrator is approving the following elements of the 
Revised PM-10 State Implementation Plan for the Salt River Area, 
September 2005, submitted on October 7, 2005, by the Governor's 
designee.
    (i) Incorporation by reference.
    (A) Maricopa County Air Quality Department.
    (1) Rule 325, adopted on August 10, 2005.
    (2) Rule 310, revised on April 7, 2004.
    (3) Appendix C, ``Fugitive Dust Test Methods,'' adopted on June 16, 
1999, and revised on April 7, 2004.
    (4) Appendix F, ``Soil Designations,'' adopted on April 7, 2004.
    (5) Resolution No. C-85-05-005-0-00: Resolution to Implement 
Additional Measures for the Maricopa County, Arizona Serious PM-10 
Nonattainment Area (including Exhibit A), adopted on January 19, 2005.
    (B) City of Apache Junction.
    (1) Resolution No. 04-24: A Resolution of the Mayor and City 
Council of the City of Apache Junction, Arizona, Implementing Measures 
to Reduce Reentrained Dust Emissions from Targeted Paved Roads in the 
Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A), adopted on September 21, 2004.
    (C) City of Avondale.
    (1) Resolution No. 2448-04: A Resolution of the Council of the City 
of Avondale, Arizona, Implementing Measures to Reduce Reentrained Dust 
Emissions from Targeted Paved Roads in the Revised PM-10 State 
Implementation Plan for the Salt River Area (including Exhibit A), 
adopted on September 20, 2004.
    (D) Town of Buckeye.
    (1) Resolution No. 58-04: A Resolution of the Mayor and Town 
Council of the Town of Buckeye, Arizona, Implementing Measures to 
Reduce Reentrained Dust Emission from Targeted Paved Roads in the 
Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A), adopted on November 16, 2004.
    (E) City of Chandler.
    (1) Resolution No. 3782: Resolution to Implement Measures to Reduce 
Re-entrained Dust Emissions from Identified Paved Roads in Chandler As 
Part of the Revised PM-10 State Implementation Plan for Air Quality 
(including Exhibit A and Exhibit B), adopted on October 14, 2004.
    (F) City of El Mirage.
    (1) Resolution No. R04-10-54: A Resolution of the Mayor and City 
Council of the City of El Mirage, Maricopa County, Arizona, 
Implementing Measures to Reduce Re-entrained Dust Emissions from 
Targeted Paved Roads in the Revised PM-10 State Implementation Plan for 
the Salt River Area (including Exhibit A), adopted on October 28, 2004.
    (G) Town of Fountain Hills.
    (1) Resolution No. 2004-63: A Resolution of the Mayor and Council 
of the Town of Fountain Hills, Arizona, Implementing Measures to Reduce 
Reentrained Dust Emissions from Targeted Paved Roads in the Revised PM-
10 State Implementation Plan for the Salt River Area (including Exhibit 
A and Protocol to Reduce Reentrained Dust Emissions from Targeted Paved 
Roads), adopted on November 18, 2004.
    (H) Town of Gilbert.
    (1) Resolution No. 2575: A Resolution of the Common Council of the 
Town of Gilbert, Arizona to Implement Measures to Reduce Reentrained 
Dust Emissions from Targeted Paved Roads in the Revised PM-10 State 
Implementation Plan for the Salt River Area (including Exhibit A and 
Town of Gilbert Protocol for Reducing PM-10 Emissions from ``High 
Dust'' Paved Roads), adopted on March 29, 2005.
    (I) City of Glendale.
    (1) Resolution No. 3796 New Series: A Resolution of the Council of 
the City of Glendale, Maricopa County, Arizona, Implementing Measures 
to Reduce Re-entrained Dust Emissions from Targeted Paved Roads in the 
Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A and

[[Page 46567]]

Glendale Targeted Street Sweeping Protocol to Reduce Dust Emissions), 
adopted on September 14, 2004.
    (J) City of Goodyear.
    (1) Resolution No. 04-941: A Resolution of the Mayor and Council of 
the City of Goodyear, Maricopa County, Arizona, to Authorize the City 
Manager to Implement Measures to Reduce Reentrained Dust Emissions from 
Targeted Paved Roads in the Revised PM-10 State Implementation Plan for 
the Salt River Area (including Exhibit A and Protocol for Reducing 
Reentrained Dust Emissions from Targeted Paved Roads), adopted on 
October 25, 2004.
    (K) City of Mesa.
    (1) Resolution No. 8344: A Resolution of the City Council of the 
City of Mesa, Maricopa County, Arizona, Stating the City's Intent to 
Implement Measures to Reduce Particulate Pollution (including Exhibit 
A), adopted on October 4, 2004.
    (L) Town of Paradise Valley.
    (1) Resolution Number 1084: Resolution to Implement Measures to 
Reduce Reentrained Dust Emissions from Targeted Paved Roads in the 
Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A), adopted on September 23, 2004.
    (M) City of Peoria.
    (1) Resolution No. 04-235: A Resolution of the Mayor and City 
Council of the City of Peoria, Maricopa County, Arizona, Implementing 
Measures to Reduce Reentrained Dust Emissions from Targeted Paved Roads 
in the Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A and City of Peoria Targeted Paved Roadways Dust 
Control Protocol, September 24, 2004), adopted on October 5, 2004.
    (N) City of Phoenix.
    (1) Resolution No. 20114: A Resolution Stating the City's Intent to 
Implement Measures to Reduce Air Pollution (including Exhibit A, City 
of Phoenix 2004 Protocol and Implementation Plan for Paved Streets with 
Potential for Dust Emissions, and Attachment A), adopted on June 16, 
2004.
    (O) City of Scottsdale.
    (1) Resolution No. 6588: A Resolution of the Council of the City of 
Scottsdale, Maricopa County Arizona, Authorizing Implementation of 
Measures to Reduce Reentrained Dust Emissions from Targeted Paved Roads 
in the Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A and Attachment 1--Protocol to Reduce 
Reentrained Dust Emissions from Targeted Paved Roads), adopted on 
December 6, 2004.
    (P) City of Surprise.
    (1) Resolution No. 04-163: A Resolution of the Mayor and Council of 
the City of Surprise, Arizona, to Implement Measures to Reduce 
Reentrained Dust Emissions from Targeted Paved Roads in the Revised PM-
10 State Implementation Plan for the Salt River Area (including Exhibit 
A and Protocol), adopted on September 23, 2004.
    (Q) City of Tempe.
    (1) Resolution No. 2004.84: A Resolution of the Mayor and City 
Council of the City of Tempe, Arizona, to Implement Measures to Reduce 
Re-entrained Dust Emissions from Targeted Paved Roads in the Revised 
PM-10 State Implementation Plan for the Salt River Area (including 
Exhibit A and Protocol for Reducing Re-entrained Dust Emissions from 
Targeted Paved Roads, September 30, 2004), adopted on September 30, 
2004.
    (R) City of Tolleson.
    (1) Resolution No. 947: A Resolution of the Mayor and City Council 
of the City of Tolleson, Maricopa County, Arizona, Implementing 
Measures to Reduce Reentrained Dust Emissions from Targeted Paved Roads 
in the Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A), adopted on September 28, 2004.
    (S) Town of Youngtown.
    (1) Resolution No. 05-01: Resolution to Implement Measures to 
Reduce Reentrained Dust Emissions from Targeted Paved Roads in the 
Revised PM-10 State Implementation Plan for the Salt River Area 
(including Exhibit A), adopted on January 20, 2005.
    (T) Arizona Department of Transportation.
    (1) Resolution to Implement Measures to Reduce Reentrained Dust 
Emissions from Targeted Paved Roads in the Revised PM-10 State 
Implementation Plan for the Salt River Area (including Exhibit A and 
Arizona Department of Transportation Plan to Reduce Reentrained Dust 
Emissions from Targeted Paved Roads), adopted on September 17, 2004.
    (138) The Administrator is approving the following elements of the 
Revised PM-10 State Implementation Plan for the Salt River Area, 
Additional Submittals, September 2005, Additional Submittal in November 
2005, submitted on November 29, 2005, by the Governor's designee.
    (i) Incorporation by reference.
    (A) Maricopa County Air Quality Department.
    (1) Rule 310.01, adopted on June 16, 1999, and revised on February 
17, 2005.
    (2) Application for Dust Control Permit, adopted on June 22, 2005.
    (3) Guidance for Application for Dust Control Permit, adopted on 
June 22, 2005.
* * * * *
 [FR Doc. E7-16223 Filed 8-20-07; 8:45 am]
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