[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Rules and Regulations]
[Pages 33107-33116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13495]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0762; FRL-9912-01-Region 9]


Approval and Promulgation of Implementation Plans--Maricopa 
County PM-10 Nonattainment Area; Five Percent Plan for Attainment of 
the 24-Hour PM-10 Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
implementation plan (SIP) revision submitted by the State of Arizona to 
meet Clean Air Act (CAA) requirements applicable to the Maricopa County 
(Phoenix) PM-10 Nonattainment Area. The Maricopa County PM-10 
Nonattainment Area is designated as a serious nonattainment area for 
the national ambient air quality standards (NAAQS) for particulate 
matter of ten microns or less (PM-10). The submitted SIP revision 
consists of the Maricopa Association of Governments 2012 Five Percent 
Plan for PM-10 for the Maricopa County Nonattainment Area and the 2012 
Five Percent Plan for the Pinal County Township 1 North, Range 8 East 
Nonattainment Area'' (collectively, the 2012 Five Percent Plan). EPA is 
approving the 2012 Five Percent Plan as meeting all relevant statutory 
and regulatory requirements.

DATES: This rule is effective on July 10, 2014.

ADDRESSES: You may inspect the supporting information for this action, 
identified by docket number EPA-R09-OAR-2013-0762, by one of the 
following methods:
    1. Federal eRulemaking portal, http://www.regulations.gov, please 
follow the online instructions; or,
    2. Visit our regional office at, U.S. Environmental Protection 
Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While 
documents in the docket are listed in

[[Page 33108]]

the index, some information may be publicly available only at the hard 
copy location (e.g., voluminous records, large maps, 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 directly below.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959, [email protected].

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

Table of Contents

I. Summary of Proposed Action
II. Public Comments and EPA Responses
III. EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Summary of Proposed Action

    On February 6, 2014 (79 FR 7118), EPA proposed to approve the 2012 
Five Percent Plan,\1\ which the State of Arizona submitted on May 25, 
2012, as meeting all relevant statutory and regulatory requirements 
under the Clean Air Act (CAA). As discussed in our proposed rule, the 
Maricopa County (Phoenix) PM-10 nonattainment area is a serious PM-10 
nonattainment area, and is located in the eastern portion of Maricopa 
County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe, 
Chandler, Glendale, several other smaller jurisdictions, unincorporated 
County lands, as well as the town of Apache Junction in Pinal County. 
Arizona's obligation to submit the 2012 Five Percent Plan was triggered 
by EPA's June 6, 2007 finding that the Maricopa PM-10 Nonattainment 
Area had failed to meet its December 31, 2006 deadline to attain the 
PM-10 NAAQS. The CAA requires a serious PM-10 nonattainment area that 
fails to meet its attainment deadline to submit a plan providing for 
attainment of the PM-10 NAAQS and for an annual emission reduction in 
PM-10 or PM-10 precursors of not less than five percent until 
attainment. Our February 6, 2014 proposed rule provides the background 
and rationale for this action.\2\
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    \1\ The 2012 Five Percent Plan includes the ``MAG 2012 Five 
Percent Plan for PM-10 for the Maricopa County Nonattainment Area'' 
(dated May 2012) (MAG 2012 Five Percent Plan) and the ``2012 Five 
Percent Plan for the Pinal County Township 1 North, Range 8 East 
Nonattainment Area'' (dated May 25, 2012) (Pinal 2012 Five Percent 
Plan) (collectively, the 2012 Five Percent Plan). In our proposed 
rule we cited primarily to the MAG 2012 Five Percent Plan; however, 
both plans were submitted by ADEQ on May 25, 2012 and are included 
in the docket for this rulemaking. See May 25, 2012 letters from 
Henry R. Darwin, Director, Arizona Department of Environmental 
Quality, to Jared Blumenfeld, Regional Administrator, U.S. 
Environmental Protection Agency Region IX.
    \2\ We have also approved Arizona statutory provisions and the 
Dust Action General Permit, which were submitted with the 2012 Five 
Percent Plan. See our proposed rule at 79 FR 7118, p. 7123 (footnote 
20) and recent EPA actions at 79 FR 17878 (March 31, 2014), 79 FR 
17879 (March 31, 2014) and 79 FR 17881 (March 31, 2014).
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II. Public Comments and EPA Responses

    EPA provided a 30-day public comment period on our proposed action. 
The comment period ended on March 10, 2014. We received 12 public 
comment letters from State and local agencies, industry, congressional 
representatives and environmental groups.\3\ All of the submitted 
comment letters are in our docket. We respond to all the comments 
below.
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    \3\ Commenting organizations include: U.S. Senator Jeff Flake, 
Arizona Center for Law in the Public Interest (2 letters), Maricopa 
Association of Governments, City of Phoenix, Arizona Rock Products 
Association, Salt River Project, ADEQ, Arizona Association of 
General Contractors, Maricopa County Air Quality Department, the 
Arizona Chamber of Commerce, and Amanda Reeve, former Arizona State 
Representative and Chair of Arizona House Environment Committee.
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A. Update 2002 BACM and MSM Determinations

    Comment: The Arizona Center for Law in the Public Interest (ACLPI) 
commented that EPA's proposed action did not discuss or analyze 
requirements under CAA 189(b)(1)(B) for best available control measures 
(BACM) or requirements under CAA 188(e) for most stringent measures 
(MSM). ACLPI stated that these requirements apply to the Maricopa 
County PM-10 nonattainment area because it is a serious PM-10 
nonattainment area that obtained a five-year extension of its 
attainment date pursuant to section 188(e) in 2001. ACLPI also asserts 
that EPA's 2002 approval of BACM and MSM requirements must be updated 
in light of EPA's statements in correspondence to ADEQ and in a 
proposed rulemaking in 2010 that new more stringent control measures 
have been adopted by air agencies in Nevada and California and that 
agricultural controls no longer represent BACM. ACLPI also states that 
addressing the question of whether existing control constitute BACM is 
necessary in order to evaluate ADEQ's claims that 135 exceedances 
qualify as exceptional events.
    Response: EPA disagrees with the commenter's statement that EPA's 
proposed action on the 2012 Five Percent Plan did not discuss or 
analyze section 189(b)(1)(B) and 188(e) requirements for BACM and MSM. 
Our proposed action on the 2012 Five Percent Plan explained that the 
Maricopa County PM-10 nonattainment area was initially classified as 
moderate, and, when it failed to reach attainment by the attainment 
deadline for moderate areas, was reclassified, on May 10, 1996, as a 
serious PM-10 nonattainment area with a new attainment deadline of 
December 31, 2001. See 79 FR 7118-7119. Our proposed action on the 2012 
Five Percent Plan also explained the criteria set forth in section 
188(e) necessary to grant a five year extension of that deadline. In 
addition, our proposed action on the 2012 Five Percent Plan included 
the following statement: ``On July 25, 2002, EPA approved the serious 
area PM-10 plan for the Maricopa PM-10 Nonattainment Area as meeting 
the requirements for such areas in CAA sections 189(b) and (c), 
including the requirements for implementation of best available control 
measures (BACM) in section 189(b)(1)(B) and MSM in section 188(e). In 
the same action EPA approved the submission with respect to the 
requirements of section 188(d) and granted Arizona's request to extend 
the attainment date of the area to December 31, 2006.'' \4\ 79 FR 7119.
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    \4\ EPA's approval of BACM for this area and approval of the 
extension under section 188(e) were upheld in Vigil v. Leavitt, 366 
F.3d 1025, amended at 381 F.3d 826 (9th Cir. 2004).
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    We understand the comment to be more specifically directed at the 
issue of whether our action on the 2012 Five Percent Plan requires EPA 
to ``update'' or re-evaluate the BACM and MSM determinations we made 
when we acted on the State's serious area plan and attainment deadline 
extension request in 2002. EPA does not agree that the CAA requires 
such a reevaluation in the context of acting on a state's submission of 
a new plan to meet the requirements of section 189(d). We interpret CAA 
section 189(b)(1)(B) to provide that the requirement for BACM is 
triggered by a specific event: The reclassification of a moderate PM-10 
nonattainment area to serious. Similarly, we interpret section CAA 
188(e) to provide that the requirement for MSM is triggered by a 
particular event: EPA's granting of a state's request for an extension 
of the attainment deadline for a serious nonattainment area. If a 
serious nonattainment area fails to reach attainment by the applicable 
deadline, CAA section 189(d) requires the state to submit ``plan 
revisions which provide for attainment of the PM-10 air quality 
standard'' and ``for annual reduction in PM-10 . . . of not less than

[[Page 33109]]

5 percent . . .'' The Act, however, does not contain a specific 
requirement that the state update the previously approved requirements 
for BACM and MSM as a consequence of failing to reach attainment by the 
applicable deadline for serious PM-10 nonattainment areas as an element 
of the plan revision required by section 189(d).
    Consistent with the Act's structure of requiring increasingly 
stringent obligations as the severity of the air pollution problem 
increases, we interpret sections 189(b)(1)(B) and 188(e), as well as 
189(d), as parts of a statutory scheme that imposes increasingly more 
stringent requirements when a PM-10 nonattainment area fails to reach 
attainment by applicable deadlines. See Addendum to the General 
Preamble, 59 FR 42010 (August 16, 1994). As stated previously, the 
Maricopa County PM-10 Nonattainment Area was initially classified as 
moderate. In 1996, when EPA determined that the Area failed to reach 
attainment by the moderate area attainment deadline, EPA reclassified 
the Area to serious. As a consequence of this reclassification, the 
Maricopa County PM-10 Nonattainment Area was subject to a new 
attainment deadline (December 31, 2001) as well as new requirements for 
a serious PM-10 attainment plan pursuant to CAA section 188(c) and for 
BACM pursuant to CAA section 189(b)(1)(B). Subsequently, the State's 
request for an extension of the serious area attainment deadline 
(December 31, 2006), and EPA's granting of that request in 2002, 
resulted in an obligation for the State to demonstrate that its SIP 
imposed MSM pursuant to section 188(e). In 2007, EPA's determination 
that the Maricopa County PM-10 Nonattainment Area had failed to reach 
attainment by the extended serious area deadline resulted in section 
189(d)'s requirements for plan revisions and annual reductions in PM-10 
of five percent until attainment. Thus, the CAA's requirements for BACM 
and MSM are tied to specific triggers in the Act: BACM by the 
reclassification to serious following the missed moderate area 
deadline, and MSM by the extension of the serious area deadline. For 
serious nonattainment areas that fail to reach attainment by an 
applicable deadline, the CAA specifies a particular consequence: A 
requirement for additional plan revisions that provide for attainment 
and annual five percent reductions. There is no explicit requirement in 
section 189(d) that a state with a serious nonattainment area that 
misses its attainment deadline must also reevaluate BACM and MSM 
provisions in its SIP that EPA has already approved. Indeed, the 
requirements of section 189(d) do not specify the requisite level of 
control and merely speak in terms of expeditious attainment and a set 
percentage of annual reductions from the most recent inventory, without 
regard to the level of control on sources needed to achieve those 
objectives. We note further that the commenter did not provide a legal 
rationale to support an interpretation of the Act that would require 
the state to reevaluate the existing BACM and MSM in its SIP as part of 
the explicit requirements of section 189(d). A state may elect to do 
so, and may elect to do so as a means of achieving additional emissions 
reductions to meet the five percent requirement, but that is not a 
specific requirement of section 189(d).
    EPA notes that it has other discretionary authority under the CAA 
to address deficiencies in existing state SIPs, if that were necessary 
to address substantive concerns like those raised by the commenter. If 
EPA were to find a state SIP to be ``substantially inadequate'' to 
attain or maintain a standard or to meet any other requirements of the 
CAA, section 110(k)(5) provides a remedy by which EPA may require a 
state to revise its SIP to correct the identified inadequacies. In such 
a situation, EPA notifies a state of the inadequacies and can allow the 
state up to 18 months to submit revisions to the SIP to address the 
problems. See 42 U.S.C. 7410(k)(5). EPA has not made such a 
determination with respect to BACM or MSM for the Maricopa County PM-10 
Nonattainment Area.
    Finally, we note that Arizona was able to demonstrate attainment of 
the PM-10 NAAQS and provide for annual reductions of five percent until 
attainment without requiring additional BACM and MSM measures in its 
SIP.\5\ Given that this area has demonstrated that it attained the PM-
10 NAAQS by December 31, 2012 and has met the requirements of section 
189(d), EPA does not see a need for the State to reevaluate its 
existing BACM and MSM as part of the action on the 2012 Five Percent 
Plan.
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    \5\ See MAG 2012 Five Percent Plan, at p. 5-7, Table 5-3. Note 
that the emissions from agricultural sources (``tilling, harvesting 
and cotton ginning'' and ``windblown agriculture'') are constant, 
reflecting no reductions in emissions from 2008 to 2012.
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    We address ACLPI's comments with respect to BACM and MSM as they 
relate specifically to agricultural controls and exceptional events 
below.

B. BACM for Agricultural Sources

    Comment: ACLPI commented that EPA should not approve the 2012 Five 
Percent Plan because it does not include adequate measures for 
agricultural emissions. ACLPI commented that EPA has stated that ACC R 
18-2-611 [Ag BMP Rule] no longer qualifies as BACM because other 
nonattainment areas have stronger programs for controlling agricultural 
emissions and do not have an enforceability issue found in the rule. 
ACLPI also commented that the State's 2011 revisions to the Ag BMP Rule 
to address concerns identified by EPA are still clearly insufficient to 
qualify as BACM.
    Response: As explained above, CAA section 189(d) does not require 
the State to reevaluate the BACM and MSM determinations that were 
addressed in its serious area PM-10 plan for the Maricopa County PM-10 
Nonattainment Area.
    In addition, the 2012 Five Percent Plan satisfied all requirements 
for an approvable section 189(d) plan without relying on additional 
emissions reductions from agricultural sources. The 2012 Five Percent 
Plan is based on the ``2008 PM-10 Periodic Emissions Inventory for 
Maricopa County, Revised 2011 (2008 Inventory),'' which EPA found to be 
comprehensive, accurate and current. 79 FR 7120-7121. The 2008 
Inventory shows that the most significant sources of emissions in the 
Maricopa County Nonattainment Area are unpaved roads and alleys (21 
percent), construction-related fugitive dust (17 percent), paved road 
dust (17 percent) and windblown dust (9 percent). 79 FR 7120. Section 
189(d) requires an approvable plan to show annual five percent 
reductions in PM-10 or PM-10 precursors until attainment. The 2012 Five 
Percent Plan was able to satisfy this criterion without assuming 
additional reductions in agricultural emissions.\6\ Similarly, the 2012 
Five Percent Plan demonstrated that the area would attain the standard 
without additional reductions in agricultural emissions.\7\ Instead, 
the 2012 Five Percent Plan predicts that decreases in emissions from 
other categories, primarily construction and windblown dust from vacant 
and open lands, would achieve the requisite 5 percent reductions.\8\
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    \6\ Id.
    \7\ See MAG 2012 Five Percent Plan, App. B, ``Technical Document 
in Support of the MAG 2012 Five Percent Plan for PM-10 for the 
Maricopa County Nonattainment Area,'' p. V-65.
    \8\ Id. at p. III-2, Table III-1.
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    Recent monitoring data support the attainment demonstration in the 
2012

[[Page 33110]]

Five Percent Plan. 79 FR 7122. Finally, the State used no reductions in 
agricultural emissions for contingency measures.\9\ Because the 2012 
Five Percent Plan did not depend on additional emission reductions from 
agricultural sources and because EPA finds that the State is not 
required to reevaluate the BACM determinations we made in 2002 as part 
of meeting the requirements of section 189(d), the content of the Ag 
BMP rule does not determine the outcome of our action on the 2012 Five 
Percent Plan.
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    \9\ See MAG 2012 Five Percent Plan, at p. 6-39, Table 6-22.
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    Nevertheless, EPA is continuing to work with ADEQ, Arizona 
stakeholders and the Governor's Agricultural BMP Committee to improve 
the Ag BMP rule. EPA anticipates that these improvements will be 
particularly important for addressing PM-10 emissions in Pinal County, 
a portion of which EPA re-designated as non-attainment in 2012. See 77 
FR 32024 (May 31, 2012).

C. Dust Action General Permit

    Comment: ACLPI commented that the 2012 Five Percent Plan relies on 
an estimate that the Dust Action General Permit (DAGP) will increase 
the rule effectiveness of Rule 310.01 by one percent, but argued that 
it is not clear that the DAGP achieves any measurable reduction in 
emissions. ACLPI stated that the structure of the DAGP means that its 
scope is unclear and that there is no way to gauge that issuance of the 
DAGP is actually impacting behavior in a way that reduces emissions. 
ACLPI stated that compliance is only measured by instances of lack of 
compliance discovered by inspectors who happen upon an owner or 
operator of a regulated activity who is not implementing a BMP. ACLPI 
stated that ADEQ has not yet issued a single Requirement to Operate 
(``RTO''), which means that it is possible that sources not already 
subject to permits have implemented BMPs as a result of the permit, but 
it is equally plausible that BMPs are not being implemented and that 
inspectors haven't discovered the violations, or that the universe of 
potential permittees under the DAGP was so small that the adoption of 
the permit had no practical effect whatsoever.
    Response: The 2012 Five Percent Plan does not rely on assumptions 
regarding compliance with the DAGP per se; rather, the 2012 Five 
Percent Plan relies on an assumption that the DAGP will improve 
compliance with Rule 310.01. As the 2012 Five Percent Plan explains, 
``[e]missions reduction credit was taken for one new measure, the Dust 
Action General Permit . . . This new measure is expected to raise rule 
effectiveness for Rule 310.01 by one percent during high wind hours . . 
.'' \10\ This statement is consistent with Table 5-1 of the MAG 2012 
Five Percent Plan, ``Impact of Increased Rule Effectiveness on 2008-
2012 PM-10 Emissions,'' which shows that ADEQ estimated that the rule 
effectiveness for the category ``windblown vacant, open, test tracts,'' 
(the category of sources subject to Rule 310.01), would increase from 
96% in 2010-2011 to 97% in 2012.\11\ Table 5-1 associates this improved 
rate of compliance with an annual reduction in PM-10 emissions of 149 
tons per year.\12\
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    \10\ MAG 2012 Five Percent Plan, p. ES-10 (emphasis added). See 
also, MAG 2012 Five Percent Plan at p. 6-45; App. B, ``Technical 
Document in Support of the MAG 2012 Five Percent Plan for PM-10 for 
the Maricopa County Nonattainment Area,'' ppg. III-1 to III-8.
    \11\ MAG 2012 Five Percent Plan at p. 5-3, Table 5-1.
    \12\ Id.
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    The Maricopa County Air Quality Department's (MCAQD) compliance 
data for calendar year 2012 support the 2012 Five Percent Plan's 
assumptions that the DAGP will improve compliance with Rule 310.01. 
MCAQD reviewed its records of inspections during calendar year 2012, as 
documented in ``Evaluation of Innovative Control Measures and Existing 
Maricopa County Control Measures Contained in the MAG 2012 Five Percent 
Plan for PM-10 for the Maricopa County Nonattainment Area, revised,'' 
Maricopa County Air Quality Department, June 6, 2013 (2013 Evaluation 
Report).\13\ It found that, out of a total of 5,431 sites inspected for 
compliance with Rule 310.01 in 2012, 149 citations were issued--
amounting to a rule effectiveness rate of 97.62 percent. 2013 
Evaluation Report at pages 3-4. This amount exceeds the compliance rate 
of 96% associated with previous years. MAG 2012 Five Percent Plan at p. 
5-3, Table 5-1. EPA acknowledges that estimating rule compliance 
requires reliance on compliance information collected by reliable 
means. In this instance, EPA believes that the information gathered 
through the MCAQD's inspections program provides information to support 
the conclusion that most affected sources are complying with the 
requirements of Rule 310.01, and that compliance improved in 2012 as a 
result of those inspections.
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    \13\ MCAQD has committed to conducting this evaluation on a 
triennial basis. MAG 2012 Five Percent Plan, App. C, Exhibit 2, 
``Maricopa County Resolution to Evaluate Measures in the MAG 2012 
Five Percent Plan for the Maricopa County Nonattainment Area.''
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    The 2012 Five Percent Plan further describes the connection between 
Rule 310.01 and the DAGP.\14\ The Plan explains that the DAGP is 
expected to increase compliance with Rule 310.01 because, whenever ADEQ 
issues a forecast of a high wind dust event, sources subject to Rule 
310.01 (primarily open areas, vacant lots, and unpaved parking areas 
and roadways),\15\ will take additional measures to stabilize open 
areas and unpaved surfaces by implementing the best management 
practices (BMPs) specified in Rule 310.01 and the DAGP.\16\ Such 
measures might include restricting access to open areas and vacant 
lots, or by applying dust suppressants and/or maintaining surface 
gravel.\17\ As specified in the DAGP, sources that fail to choose or 
implement a BMP when ADEQ issues a forecast of a high wind dust event 
may trigger applicability of the DAGP and the additional requirements 
it imposes.\18\ Thus, the existence of the DAGP enhances compliance 
with Rule 310.01 because sources subject to Rule 310.01 associate 
noncompliance with Rule 310.01 with an adverse consequence--
specifically, the obligation to apply for and comply with the DAGP. 
Again, MCAQD's study of the compliance rate of Rule 310.01 supports 
this assumption in the 2012 Five Percent Plan.
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    \14\ See MAG 2012 Five Percent Plan, p. ES-10; p. 5-3, Table 5-
1; p. 6-45. See also MAG 2012 Five Percent Plan, App. B, ``Technical 
Document in Support of the MAG 2012 Five Percent Plan for PM-10 for 
the Maricopa County Nonattainment Area,'' ppg. III-1 to III-8. The 
relationship between Rule 310.01 and the DAGP is also described in 
ADEQ's comments on our proposed action, Letter from Eric C. Massey, 
Director, Air Quality Division, ADEQ to Greg Nudd, US EPA, dated 
March 10, 2014.
    \15\ See Rule 310.01, section 102; 2012 Five Percent Plan at ES-
7 to ES-10.
    \16\ MAG 2012 Five Percent Plan at ES-10.
    \17\ See DAGP, Attachment C, ``Best Management Practice 
Examples''; Rule 310.01, sections 301-307.
    \18\ DAGP, section V.
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D. Exceptional Events--General

    Comment: ACLPI stated that it was unable to reconcile some of the 
numbers of exceptional events cited by EPA. The commenter stated that 
the subtotals in EPA's concurrence letters add up to 131, but the 
subtotals in the tables in the supporting documentation add up to 135. 
The commenter added that if sites with double monitors are counted as 
only one exceedance, the total number of exceedances is 127.
    Response: EPA acknowledges the discrepancy between the number of 
exceedances in concurrence letters and the tables in the TSDs. After 
closely re-

[[Page 33111]]

reviewing the data, EPA has determined that the total number of 
exceptional events addressed by our concurrence letters dated September 
6, 2012, May 6, 2013, and July 1, 2013 should be 135 exceedances.\19\ 
These 135 exceptional event exceedances occurred on 25 days over the 
three year period, 2010-2012.
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    \19\ See spreadsheet entitled ``EPA Exceptional Event 
Concurrence Sheet,'' included in the docket for this rule.
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    Comment: ACLPI commented that EPA's exclusion of such a large 
number of frequent and severe exceedances is unconscionable and 
misrepresents the extent of the particulate pollution in the Area. The 
commenter stated that the reported exceedances are ``frequent'' and 
``severe'' within the meaning of EPA guidance, specifically, EPA's 
Interim Guidance on the Preparation of Demonstrations in Support of 
Requests to Exclude Ambient Air Quality Data Affected by High Winds 
Under the Exceptional Events Rule, May 2013 (Interim Guidance).
    Response: We note that the 135 exceptional event exceedances 
occurred on 25 days over a three year period from 2010 to 2012. The 
determinations reflected in our concurrence letters and TSDs dated 
September 6, 2012, May 6, 2013 and July 1, 2013 are consistent with the 
EER and our Interim Guidance. We considered a range of relevant factors 
including whether anthropogenic sources had reasonable controls in 
place, meteorological data such as wind speed and direction, and the 
spatial extent of the events. The frequency and severity of the events 
were considered as part of this analysis, and although we agree that 
some of the excluded exceedances could meet the criteria for 
``frequent'' and ``severe'' suggested in our Interim Guidance, that 
fact alone does not disqualify an exceedance from consideration as an 
exceptional event. See Interim Guidance at 12-13 (frequency and 
severity of past exceedances may be a factor considered in determining 
the reasonableness of controls). Also, the Interim Guidance 
acknowledges that events do not necessarily have to be rare to qualify 
as exceptional events. See Interim Guidance at 3 and 20.
    Comment: ACLPI commented that EPA's analysis of whether the events 
are reasonably preventable or controllable should have been more 
probing and not a ``cookie cutter'' approach, given the frequency and 
severity of the exceedances, as well as the area's status as serious 
nonattainment and the State's previous withdrawal of its earlier Five 
Percent Plan.
    Response: The State submitted documentation on March 14, 2012, 
January 28, 2013, and February 13, 2013 to demonstrate to EPA that 
exceedances of the PM-10 NAAQS on various dates in 2011 and 2012 meet 
the criteria for an exceptional event in the EER. The State's 
submittals comprise over 1750 pages of documentation of the facts 
supporting each of the identified exceptional events. Our TSDs 
accompanying our concurrence letters dated September 6, 2012, May 6, 
2013, and July 1, 2013 reflect EPA's methodical and systematic review 
of the State's documentation of the events and EPA's technical 
expertise and judgment. EPA presented its conclusions in a standardized 
format that was appropriate, considering the volume of information 
presented and reviewed, as well as the purpose of informing the public. 
In addition, EPA notes that we also received several comments in this 
rulemaking regarding the process required to document exceedances as 
``exceptional events'' contending that the level of resources required 
to prepare and submit such documentation to EPA was too onerous.
    Comment: ACLPI commented that the events excluded by EPA were 
predictable and seasonal in nature and could be ameliorated if the 
State adopted appropriate control measures for windblown dust both in 
the attainment (sic) area and statewide.
    Response: For each of the events that EPA concurred with, EPA found 
that the event was not reasonably controllable or preventable (nRCP). 
EPA's Interim Guidance states that, for anthropogenic sources of dust, 
``a high wind dust event may . . . be considered to be not reasonably 
controllable or preventable if: (1) The anthropogenic sources of dust 
have reasonable controls in place; (2) the reasonable controls have 
been effectively implemented and enforced; and (3) the wind speed was 
high enough to overwhelm the reasonable controls.'' See Interim 
Guidance at 10.
    EPA's determinations of nRCP were primarily based on consideration 
of the control requirements based on the Area's serious nonattainment 
classification for the PM-10 NAAQS. See Interim Guidance at 13. ADEQ 
provided detailed information of required controls (including BACM-
level controls for significant sources previously approved by EPA for 
this area), as well as information on rule implementation, rule 
effectiveness, compliance and enforcement, alert systems and public 
notification activities. A typical example is the documentation ADEQ 
submitted in connection with the event that occurred on August 11, 
2012. State of Arizona, Exceptional Event Documentation for the Event 
of August 11, 2012 for the Phoenix PM-10 Nonattainment Area, February 
2013 (AZ EE Documentation for August 11, 2012). This submittal included 
a list of control measures regulating sources of dust in Maricopa and 
Pinal counties, information about rule effectiveness, and data 
regarding compliance and enforcement. See AZ EE Documentation for 
August 11, 2012, Section 5.
    In addition, EPA's determinations of nRCP were based on ADEQ's 
documentation of wind speeds. For example, the exceedances that 
occurred on September 11 and 12, 2011 involved wind speeds of 20 miles 
per hour (mph) and 25 mph, respectively. See e.g., EPA Letter dated 
July 1, 2013, and accompanying TSD at p. 4. See also, e.g., TSD 
discussion of June 16, 2012 event at p. 10 (sustained wind speeds of 29 
mph-32 mph); TSD discussion of June 27, 2012 event at p. 15 (sustained 
wind speeds of 31 mph-38 mph); TSD discussion of July 11, 2012 event at 
p. 20 (sustained wind speeds of 20 mph-25 mph).\20\ Given the wind 
speeds associated with each of the events that EPA concurred upon, EPA 
believes ADEQ's controls assessment was appropriate and that the pre-
existing and previously approved BACM level controls are adequate for 
meeting the requirement of ``reasonable controls'' for a PM-10 serious 
nonattainment area.
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    \20\ The commenter did not specify particular dates or 
exceedances for which she found EPA's analysis deficient; therefore, 
EPA's response provides just a few examples from our TSDs in which 
we refer to the documentation of wind speeds included in the State's 
submittals. We reiterate, however, that our review of the State's 
submittals involved a methodical, case-by-case approach as 
documented by each of the TSDs accompanying our concurrence letters 
dated September 6, 2012, May 6, 2013 and July 1, 2013.
---------------------------------------------------------------------------

    Additional information regarding EPA's consideration of reasonable 
controls can be found in EPA's TSDs for each event.

E. Exceptional Events and Reasonable Controls

    Comment: ACLPI commented that BACM level controls were not in place 
in the nonattainment area. ACLPI commented that EPA's Interim Guidance 
says that BACM measures may be insufficient if the SIP has not been 
recently reviewed and that EPA has indicated that it will consider 
windblown dust BACM to be reasonable controls for purposes of 
exceptional events claims if the measures have been reviewed and 
approved in the context of a SIP revision within the past three years 
and if the measures are specific to

[[Page 33112]]

windblown dust. ACLPI commented that EPA's proposed action departs from 
this guidance because EPA last approved BACM for the area in 2002, with 
a supplemental analysis in 2006.
    Response: EPA's Interim Guidance states: ``Generally, the EPA will 
consider windblown dust BACM to constitute reasonable controls if these 
measures have been reviewed and approved in the context of a SIP 
revision for the emission source area within the past three years.'' 
Interim Guidance at 15. Although our BACM determinations were made 
outside this recommended time frame, we believe that our determinations 
regarding nRCP were correct. First, the 2012 Five Percent Plan shows 
that the significant stationary source categories for PM-10 are: 
construction; unpaved roads and alleys; paved road dust; windblown dust 
(non-agriculture); unpaved parking lots; and off-road recreational 
vehicles.\21\ Each of these source categories was included in our 
earlier BACM determinations. See 67 FR 48718 (July 25, 2002); see also, 
67 FR 48733-34. Because the significant sources within the Phoenix PM-
10 nonattainment area have not significantly changed since 2002, and 
the range of potential measures for controlling emissions from these 
source categories (e.g., stabilization of disturbed surface areas; 
spray bars to apply water or dust suppressants; track out, rumble grate 
and wheel washer requirements) have not significantly changed since 
2002, we believe that our previous BACM determinations remain 
appropriate for the purposes of making exceptional event 
determinations, including determinations regarding nRCP.
---------------------------------------------------------------------------

    \21\ MAG 2012 Five Percent Plan, at -. 5-7, Table 5-3.
---------------------------------------------------------------------------

    Second, although the State has not prepared a new BACM analysis and 
EPA has not made new BACM determinations in the past three years, 
Arizona has adopted revisions to rules regulating sources of windblown 
dust that EPA has approved into the SIP because they are more 
stringent. Specifically, EPA has approved updated revisions of: Rule 
310, which regulates sources of fugitive dust from dust generating 
operations such as construction; Rule 310.01, which regulates sources 
of windblown dust from open areas, vacant lots, unpaved parking lots, 
and unpaved roadways; and Rule 316, which regulates sources of dust 
from nonmetallic mineral processing.\22\
---------------------------------------------------------------------------

    \22\ See 74 FR 58554 (November 13, 2009) (EPA approval of 
Maricopa County's revisions to Rule 316, adopted on March 12, 2008); 
75 FR 78167 (December 15, 2010) (EPA approval of Maricopa County's 
revisions to Rule 310 and 310.01, adopted on January 27, 2010).
---------------------------------------------------------------------------

    Third, to the extent the commenter interprets the Interim Guidance 
as stating that a BACM determination that is older than three years 
cannot be relied upon in a demonstration of reasonable controls, the 
commenter is incorrect. The Interim Guidance provides a guideline to 
states preparing documentation to submit to EPA that more recent BACM 
determinations will generally satisfy EPA's consideration of reasonable 
controls. It does not disqualify measures that EPA determined to be 
BACM more than three years previously from consideration as reasonable 
controls, nor does it impose an obligation on the part of the state or 
EPA to re-evaluate BACM.
    Comment: ACLPI commented that EPA found that the 2007 Maricopa BMP 
Rule no longer represents BACM for agricultural emissions (referencing 
statements in a 2010 proposed rulemaking and in a 2010 letter to the 
Arizona Agricultural Best Management Practices (BMP) Committee) and 
that although the 2007 Maricopa BMP Rule was revised in 2011, the 
revisions were not implemented until March 2012. The commenter states 
that 98 of the 217 exceedances at issue occurred in 2011 (i.e., prior 
to the implementation of the 2011 Maricopa BMP Rule revisions). The 
commenter argued that even into 2012, the ``revised Maricopa BMP Rule'' 
(which EPA understands to be a reference to the 2011 Maricopa BMP Rule) 
is not clearly BACM because it did not include EPA's recommendations 
for improvement. The commenter concludes that EPA's concurrence on 
exceptional events was erroneous because EPA relied on its prior 
approval of the State's previous BACM demonstration and did not attempt 
to determine whether the controls in place during the event were BACM.
    Response: Our response above explains why the CAA does not require 
EPA to reevaluate its earlier BACM determination in connection with our 
action on the 2012 Five Percent Plan. We understand the commenter to be 
asserting another basis for EPA to reevaluate BACM, in particular, that 
EPA's concurrence on exceptional events may be a basis to require EPA 
to make a determination regarding BACM. EPA's Interim Guidance, 
however, states that BACM for windblown dust is a measure that EPA has 
identified as being ``reasonable'' for the purposes of exceptional 
events determinations. Interim Guidance at 15. The Interim Guidance 
acknowledges that ``[h]aving BACM/RACM in place during the time of the 
event is an important consideration'' for an exceptional event 
determination, but more justification may be necessary if, for example, 
the measures are not related to windblown dust, or if the SIP has not 
been recently reviewed. Id. For the reasons set forth below, EPA's 
reliance on the BACM determinations it made in 2002 was a reasonable 
basis to concur on the State's exceptional event claims.\23\
---------------------------------------------------------------------------

    \23\ EPA notes that it applies a weight-of-the-evidence standard 
in evaluating exceptional events claims. See e.g., Interim Guidance 
at 8: ``The EPA uses a weight-of-the-evidence approach in reviewing 
air agency requests for data exclusion under the EER [Exceptional 
Events Rule]. Evidence and narrative that constitute a strong 
demonstration for one element can also be part of the demonstration 
for another element, but cannot make up for the absence of or 
insufficient explanation supporting another element. A strong 
demonstration for one requirement could, however, influence the 
persuasiveness of the demonstration for another.''
---------------------------------------------------------------------------

    First, the 2008 Inventory shows that agricultural sources are a 
very small contributor to windblown dust in Maricopa County. According 
to the 2008 Inventory, agricultural windblown dust comprises 
approximately 0.9% of the total annual windblown dust emissions in the 
nonattainment area (448 tons out of a total of 49,673.01 tons in 
2012).\24\ Other agricultural sources, such as tilling, harvesting, and 
cotton ginning, comprise approximately 1.8% of the total annual PM-10 
emissions inventory (893 tons out of a total of 49,673.01 tons in 
2012).\25\ Thus, agricultural sources contribute only a relatively 
small percentage of the total emissions in the 2008 Inventory.
---------------------------------------------------------------------------

    \24\ Id. at p. II-3, Table II-2; see also, MAG 2012 Five Percent 
Plan at p. 5-5, Table 5-2.
    \25\ Id.
---------------------------------------------------------------------------

    Second, in determining that the exceedances that occurred in 2011 
and 2012 were nRCP, it was appropriate for EPA to find that the 
existing controls were ``reasonable'' because, as we explained above, 
the State met the requirements of section 189(d) in the 2012 Five 
Percent Plan without relying on additional reductions from agricultural 
sources. Significantly, no additional reductions from the Maricopa BMP 
Rule were needed to demonstrate that the area would attain the 
standard.\26\ Therefore, our determination that existing BACM 
requirements were sufficient to find that emissions sources were 
reasonably controlled at the time the exceedances occurred was 
appropriate.
---------------------------------------------------------------------------

    \26\ See MAG 2012 Five Percent Plan, at p. 5-7, Table 5-3.
---------------------------------------------------------------------------

    Third, we acknowledge that EPA has previously indicated to the 
State that

[[Page 33113]]

improvements to controls on agricultural sources should be considered. 
It is important to note, however, that EPA's proposed 2010 rulemaking 
was a proposed action to disapprove a different section 189(d) plan, 
the State's 2007 Five Percent Plan, in part because of EPA's concerns 
regarding the accuracy of the State's 2005 Periodic Emission Inventory. 
(We also note that the proposed rulemaking was never finalized.) It is 
also important to note that EPA's comments to the Ag BMP Committee 
predate the finalization of the 2008 Emission Inventory (May 2012) in 
which emissions from agricultural sources are a small part of the PM-10 
emissions inventory. Further, although the 2008 Inventory indicates 
that agricultural sources are relatively small contributors to PM-10 
emissions in the Maricopa County PM-10 Nonattainment Area, EPA believes 
that agriculture is a significant source in certain portions of Pinal 
County, which EPA recently redesignated as a PM-10 nonattainment area. 
See 77 FR 32024 (May 31, 2012). Therefore, EPA believes that it is 
important to continue to improve the controls on agricultural sources, 
and EPA is working with ADEQ, stakeholders, and the Governor's 
Agricultural BMP Committee to improve these controls.
    Comment: ACLPI commented that ADEQ and EPA did not adequately 
address the issue of whether the events were reasonably controllable or 
preventable with respect to sources outside the Maricopa County PM-10 
Nonattainment Area. ACLPI stated that EPA's Interim Guidance says that 
a basic controls analysis should consider all upwind areas of disturbed 
soil to be potential contributing sources, and that the basic controls 
analysis should identify all contributing sources in upwind areas and 
provide evidence that such sources were reasonably controlled, whether 
anthropogenic or natural, and include inspection reports and/or notices 
of violation, if available. The commenter stated that ADEQ and EPA did 
not indicate that control measures outside of Maricopa County were 
evaluated for their ``reasonableness.'' ACLPI commented that Pinal 
County's controls are ``minimalist rules'' that do not require controls 
to address emissions caused solely by high wind events and that 
although Pinal County was only recently designated nonattainment, Pinal 
County should not be excused from the requirement to show that sources 
in the county were subject to reasonable controls.
    Response: The comment concerns the level of controls imposed on 
sources outside the Maricopa County PM-10 Nonattainment Area, in 
particular, sources located in Pinal County. As noted in our proposed 
action, the Maricopa County PM-10 Nonattainment Area encompasses 
several cities within Maricopa County (including the cities of Phoenix, 
Mesa, Scottsdale, Tempe, Chandler, and Glendale), and several other 
smaller jurisdictions and unincorporated county lands. The Maricopa 
County PM-10 Nonattainment Area also includes the town of Apache 
Junction in Pinal County. Recently, EPA designated a portion of Pinal 
County (``West Pinal'') as a moderate PM-10 nonattainment area, which 
triggered nonattainment planning obligations that the State must 
fulfill. See 77 FR 32024 (May 31, 2012).\27\
---------------------------------------------------------------------------

    \27\ We note that our action on the 2012 Five Percent Plan 
relates to our concurrences with the State's exceptional event 
claims for exceedances at monitors for the Maricopa County PM-10 
Nonattainment Area dated September 6, 2012, May 6, 2013, and July 1, 
2013. Our action on the 2012 Five Percent Plan does not depend on 
data from monitors located within the newly redesignated West Pinal 
PM-10 Nonattainment Area or on any exceptional events claims 
regarding data from such monitors.
---------------------------------------------------------------------------

    EPA's Interim Guidance contemplates that a basic controls analysis 
should include ``a brief description'' of upwind sources. The level of 
detail provided in describing the Pinal County sources was adequate 
given relevant factors such as wind speed. Moreover, ADEQ and EPA both 
indicated that they evaluated control measures outside of Maricopa 
County. For example, ADEQ's exceptional event documentation included an 
analysis of reasonable controls that identified measures that apply to 
sources located within the Maricopa County PM-10 Nonattainment Area, 
and measures applicable to sources in Pinal County, outside the 
Maricopa County PM-10 Nonattainment Area.\28\ ADEQ specifically 
identified two Pinal County rules, Article 2, Fugitive Dust, and 
Article 3, Construction Sites--Fugitive Dust, as regulatory control 
measures.\29\ EPA's TSDs also referenced this section of ADEQ's 
documentation, including the discussion of rules applicable to sources 
in Pinal County.\30\
---------------------------------------------------------------------------

    \28\ See e.g., ADEQ EE Documentation for July 3-8, 2011 at 39-
45; in particular, ppg. 40-41, Tables 4-1 and 4-3 (sources within 
the Maricopa PM-10 Nonattainment Area) and Table 4-2 (sources 
outside the Maricopa PM-10 Nonattainment Area).
    \29\ Id. at 41, Table 4-2.
    \30\ See e.g., EPA Letter dated Sept. 9, 2012 and accompanying 
TSD at 3.
---------------------------------------------------------------------------

    In addition, the level of detail describing Pinal County sources 
and controls was also adequate for an area such as Pinal County for 
which a portion was recently redesignated as a PM-10 nonattainment area 
and is currently undergoing the nonattainment planning process. As 
EPA's Interim Guidance states, an area's attainment status is an 
appropriate guideline for assessing the reasonableness of controls: 
``Generally, the EPA does not expect areas classified as attainment, 
unclassifiable, or maintenance for a NAAQS to have the same level of 
controls as areas that are nonattainment for the same NAAQS. Also, if 
an area has been recently designated to nonattainment but has not yet 
been required to implement controls, the EPA will expect the level of 
controls that is appropriate for the planning stage.'' Interim Guidance 
at 15. EPA's recent redesignation of a portion of Pinal County as a 
moderate PM-10 nonattainment area triggered CAA planning obligations 
for the State to develop regulations to implement controls such as 
Reasonably Available Control Measures (RACM) for existing sources of 
PM-10 and a section 173 preconstruction permitting program for new and 
modified sources of PM-10. EPA concurred with exceedances that occurred 
in 2011 and 2012; the latest exceedance occurred on September 6, 2012, 
well before the CAA's deadline for Arizona to submit an implementation 
plan to EPA for approval into the Arizona SIP. See 77 FR 32030.
    Comment: ACLPI commented that claims that events were caused by 
``winds transporting dust from desert areas of Pima and Pinal 
Counties'' are not substantiated and that the State's demonstrations do 
not determine source locations, as required by EPA's 2013 Interim 
Guidance (referencing 3.1.5.1). ACLPI conducted its own analysis of the 
event that occurred on July 18, 2011. ACLPI commented that its analysis 
indicates that dust sources included agricultural sources in Pinal and 
Maricopa Counties, and that four downdrafts and four outflows impacted 
the monitors from multiple locations, in contrast to the State's 
assertion that one thunderstorm outflow transported dust from desert 
portions of Pinal and Pima counties into the Phoenix PM-10 
nonattainment area. ACLPI stated that although the State claims that 
specific source areas are difficult to determine because of the less 
dense monitoring network in the general source area, ACLPI's analysis 
shows that likely source locations can be determined using 
meteorological modeling and observational data. Therefore, EPA should 
require the state to make a more concerted effort to identify the 
actual sources and adopt controls to avoid or ameliorate future events.

[[Page 33114]]

    Response: Although a more refined analysis of the location of 
thunderstorm downdrafts and source areas is potentially helpful for 
certain high wind dust events, this additional analysis is not 
necessary to analyze the specific events that EPA concurred on. EPA 
reviewed the commenter's analysis and concluded that it does not 
contradict ADEQ's documentation, but rather corroborates the evidence 
presented in ADEQ's demonstration. ADEQ's documentation states that the 
contributing source regions were somewhat widespread, but that the 
``majority'' of the PM that was transported into Maricopa County likely 
originated from areas within Pinal County to the south and southeast of 
Maricopa County.\31\ ADEQ also explained that it is likely that some 
dust was generated within the Maricopa County PM-10 Nonattainment Area 
as gusts from the thunderstorm outflows passed through the area.\32\ 
Thus, ADEQ did not claim that all the emissions were specifically 
caused by a single thunderstorm outflow. ADEQ's statement that the 
``majority'' of the emissions were transported from areas of Pinal 
County and southeast Maricopa County is supported by the visualization 
of images from the Phoenix visibility camera included in the July 18, 
2011 demonstration, which shows a large dust storm approaching from the 
south of the Maricopa County PM-10 Nonattainment Area.\33\
---------------------------------------------------------------------------

    \31\ State of Arizona Exceptional Event Documentation for the 
Event of July 18, 2011, for the Phoenix PM-10 Nonattainment Area, 
Jan. 23, 2013 at p. 9.
    \32\ Id. at 18.
    \33\ Id. at 27.
---------------------------------------------------------------------------

    Comment: ACLPI commented that the fact that some of the sources are 
located outside of the Maricopa County PM-10 Nonattainment Area does 
not absolve the State of its responsibility to ensure that they are 
reasonably controlled. The commenter stated that ADEQ is the single 
responsible actor for air quality control in Arizona and had the 
responsibility to address the public health risk presented by sources 
in Pinal County, particularly given high wind events experienced in 
2008 and 2009.
    Response: EPA agrees that the State has a responsibility to ensure 
that sources outside the Maricopa County PM-10 Nonattainment Area are 
reasonably controlled. Our action with respect to exceedances at 
Maricopa County PM-10 Nonattainment Area monitors does not absolve in 
any way the State's responsibility to address PM-10 emissions in the 
West Pinal PM-10 Nonattainment Area. Our July 2012 redesignation of 
West Pinal to nonattainment triggers Clean Air Act nonattainment 
planning obligations that Arizona must fulfill. See 77 FR 32030. We 
note that our action on the 2012 Five Percent Plan relates to our 
concurrences with the State's exceptional event claims for exceedances 
at monitors for the Maricopa County PM-10 Nonattainment Area dated 
September 6, 2012, May 6, 2013, and July 1, 2013, and does not depend 
on the treatment of data for monitors located within the newly 
redesignated West Pinal PM-10 Nonattainment Area.

F. Exceedances in 2013

    Comment: ACLPI commented that the Maricopa County PM-10 
Nonattainment Area experienced 30 exceedances over six days in 2013, 
which ADEQ has flagged and for which ADEQ is preparing EE 
documentation, and that EPA is simply assuming that it will concur with 
these EE demonstrations. The commenter stated that this is 
unsupportable, particularly in light of EPA's failure to require 
mitigation measures and that there are frequent and severe violations 
of the standard at multiple monitors, many of which are located in low 
income neighborhoods.
    Response: The 2012 Five Percent Plan was based on a projection that 
that the Area would attain the NAAQS in 2012. If, upon review of the 
available evidence, EPA finds that the exceedances of the standard in 
2013 constitute a new violation of the PM-10 NAAQS, we have the 
authority to require the state to submit a SIP revision with additional 
controls and a demonstration that the new controls will bring the area 
back into attainment with the standard.\34\
---------------------------------------------------------------------------

    \34\ E.g., under CAA section 110(k)(5) EPA may require a state 
to revise its SIP if we find it to be substantially inadequate to 
maintain the relevant air quality standard. In such a situation, EPA 
notifies a state of the inadequacies and can allow the state up to 
18 months to submit revisions to the SIP to address the problems. 
See 42 U.S.C. 7410(k)(5).
---------------------------------------------------------------------------

G. Contingency Measures

    Comment: ACLPI stated that EPA's proposal acknowledges that the 
contingency measures in the 2012 Five Percent Plan are already being 
implemented. The commenter stated that CAA (175(d)) envisions 
additional measures that are automatically and immediately implemented 
if a milestone for reasonable further progress or attainment is not 
met. The commenter stated that if contingency measures are already 
being implemented when a milestone is missed, continued implementation 
will not ensure that the situation will be corrected. The commenter 
argues that LEAN v. EPA is not binding on the 9th Cir. and is contrary 
to the plain language of the CAA. The commenter stated that approval of 
the 2012 Five Percent Plan without meaningful and appropriate 
contingency measures is contrary to law.
    Response: EPA disagrees with the comment. Contingency measures must 
provide for additional emission reductions that are not relied on for 
RFP or attainment and that are not included in the attainment 
demonstration. Nothing in the statute precludes a state from 
implementing such measures before they are triggered. See, e.g., LEAN 
v. EPA, 382 F.3d 575 (5th Cir. 2004) (upholding contingency measures 
that were previously required and implemented where they were in excess 
of the attainment demonstration and RFP SIP).
    EPA has approved numerous SIPs under this interpretation--i.e., 
SIPs that use as contingency measures one or more Federal or local 
measures that are in place and provide reductions that are in excess of 
the reductions required by the attainment demonstration or RFP plan. 
See, e.g., 62 FR 15844 (April 3, 1997) (direct final rule approving an 
Indiana ozone SIP revision); 62 FR 66279 (December 18, 1997) (final 
rule approving an Illinois ozone SIP revision); 66 FR 30811 (June 8, 
2001) (direct final rule approving a Rhode Island ozone SIP revision); 
66 FR 586 (January 3, 2001) (final rule approving District of Columbia, 
Maryland, and Virginia ozone SIP revisions); and 66 FR 634 (January 3, 
2001) (final rule approving a Connecticut ozone SIP revision).
    The scenario described by the commenter that already-implemented 
contingency measures will be a problem if the Maricopa County PM-10 
Nonattainment Area misses a deadline for RFP or attainment is mitigated 
by the fact that monitoring data for 2010-2012 show that the Area 
already attained the 24-hour PM-10 NAAQS as of December 12, 2012. See 
79 FR 7122. Our approval of the contingency measures is also consistent 
with EPA guidance that ``the potential nature and extent of any 
attainment shortfall for the area'' is relevant to the determining the 
level of required emission reductions and that contingency measures 
``should represent a portion of the actual emission reductions 
necessary to bring about attainment in area.'' 72 FR 20586, 20643; see 
also PM-10 Addendum at 42015 (the emission reductions anticipated by 
the contingency measures should be equal to approximately one-year's 
worth of

[[Page 33115]]

emission reductions needed to achieve RFP for the area.) EPA's approval 
of contingency measures that are already being implemented is 
particularly appropriate where, as is the case for the Maricopa County 
PM-10 Nonattainment Area, there are no future RFP or attainment 
deadlines.

H. Other Comments

    Comment: ADEQ asked that EPA clarify that this action applies to 
the entire nonattainment area, including the portion in Pinal County, 
and not just to the Maricopa County portion.
    Response: EPA has made this clarification.
    Comment: Several commenters noted that the plan was developed 
through a cooperative discussion among the many stakeholders in the 
plan. According to the commenters, this process led to innovative 
strategies that are appropriate to the local conditions and consistent 
with EPA requirements.
    Response: EPA acknowledges these comments.
    Comment: Several commenters expressed concerns about the resources 
required to demonstrate that measured exceedances of the standard are 
due to exceptional events. These commenters recommended changing the 
Exceptional Events Rule to address this issue.
    Response: EPA will consider these comments in future rulemakings on 
the Exceptional Events Rule.

III. EPA's Final Action

    As a result of our proposed rule and our response to comments 
above, we are finalizing our proposal to approve the 2012 Five Percent 
Plan as meeting the requirements of the CAA for the Maricopa County PM-
10 nonattainment area. Specifically, we are approving:
    (A) The 2008 baseline emissions inventory and the 2007, 2009, 2010, 
2011 and 2012 projected emission inventories as meeting the 
requirements of CAA section 172(c)(3);
    (B) the attainment demonstration as meeting the requirements of CAA 
sections 189(d) and 179(d)(3);
    (C) the five percent demonstration as meeting the requirements of 
CAA section 189(d);
    (D) the reasonable further progress and quantitative milestone 
demonstrations as meeting the requirements of CAA sections 172(c)(2) 
and 189(d);
    (E) the contingency measures as meeting the requirements of CAA 
section 172(c)(9); and
    (F) the motor vehicle emissions budget as compliant with the budget 
adequacy requirements of 40 CFR 93.118(e).

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the Clean Air Act. Accordingly, 
this action merely approves State law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act(5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it does not apply in Indian country located in the State, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    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 action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 11, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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

40 CFR Part 52

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

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

    Dated: May 30, 2014.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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)(157)(ii)(A)(1) 
and (2) to read as follows:


Sec.  52.120  Identification of plan.

* * * * *

[[Page 33116]]

    (c) * * *
    (157) * * *
    (i) * * *
    (ii) Additional materials.
    (A) Arizona Department of Environmental Quality.
    (1) 2012 Five Percent Plan for PM-10 for the Maricopa County 
Nonattainment Area, and Appendices Volume One and Volume Two, adopted 
May 23, 2012.
    (2) 2012 Five Percent Plan for PM-10 for the Pinal County Township 
1 North, Range 8 East Nonattainment Area, adopted May 25, 2012.
* * * * *
[FR Doc. 2014-13495 Filed 6-9-14; 8:45 am]
BILLING CODE 6560-50-P