Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33107 

• 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 the SIP is 

not approved to apply in Indian country 

located in the Commonwealth, 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 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: May 29, 2014. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. Section 52.920(c) Table 2 is 

amended under ‘‘Reg 1—General 

Provisions’’ by revising the entry for 

‘‘1.07’’ to read as follows: 

§ 52.920—Identification of plan. 

* * * * * 

(c)* * * 

TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY

Reg Title/Subject EPA Approval 

date Federal Register notice 

District 

effective 

date 

Explanation 

*******

Reg 1—General Provisions 

1.07 ............. Excess Emissions During Startups, Shutdowns, 

and Upset Conditions.

6/10/2014 [Insert citation of publication].7/21/2005 

* * * * * * * 

* * * * * 

[FR Doc. 2014–13429 Filed 6–9–14; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


emcdonald on DSK67QTVN1PROD with RULES
33108 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

1The 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. 

2We 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). 

3Commenting 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. 

4EPA’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). 

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, lo.doris@epa.gov. 

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

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. 

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. 

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 


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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33109 

5See 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. 

6 Id. 

7See 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. 

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. 

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

Recent monitoring data support the 

attainment demonstration in the 2012 


emcdonald on DSK67QTVN1PROD with RULES
33110 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

9See MAG 2012 Five Percent Plan, at p. 6–39, 

Table 6–22. 

10MAG 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. 

11MAG 2012 Five Percent Plan at p. 5–3, Table 

5–1. 

12 Id. 

13MCAQD 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.’’ 

14See 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. 

15See Rule 310.01, section 102; 2012 Five Percent 

Plan at ES–7 to ES–10. 

16MAG 2012 Five Percent Plan at ES–10. 

17See DAGP, Attachment C, ‘‘Best Management 

Practice Examples’’; Rule 310.01, sections 301–307. 

18 DAGP, section V. 

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. 

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 nonattainment 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

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. 

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. 

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 

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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33111 

19See spreadsheet entitled ‘‘EPA Exceptional 

Event Concurrence Sheet,’’ included in the docket 

for this rule. 

20The 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. 

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. 

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 BACMlevel 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. 

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 


emcdonald on DSK67QTVN1PROD with RULES
33112 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

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

5–3. 

22See 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). 

23EPA notes that it applies a weight-of-theevidence 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.’’ 

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. 

26See MAG 2012 Five Percent Plan, at p. 5–7, 

Table 5–3. 

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. 

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

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

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. 

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. 

Third, we acknowledge that EPA has 

previously indicated to the State that 


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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 33113 

27We 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. 

28See 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. 

30See e.g., EPA Letter dated Sept. 9, 2012 and 

accompanying TSD at 3. 

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

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

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. 


emcdonald on DSK67QTVN1PROD with RULES
33114 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

31State 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. 

34E.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). 

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

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

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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart D—Arizona 

■ 2. Section 52.120 is amended by 

adding paragraphs (c)(157)(ii)(A)(1) and 

(2) to read as follows: 

§ 52.120 Identification of plan. 

* * * * * 


emcdonald on DSK67QTVN1PROD with RULES
33116 Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Rules and Regulations 

(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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2014–0311; FRL–9911–90– 

Region–4] 

Approval and Promulgation of 

Implementation Plans Alabama: 

Volatile Organic Compounds 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking direct final 

action to approve a revision to the 

Alabama State Implementation Plan 

(SIP) submitted by the Alabama 

Department of Environmental 

Management (ADEM) on September 3, 

2013. The revision modifies the 

definition of ‘‘volatile organic 

compounds’’ (VOCs). Specifically, the 

revision adds four 

hydrofluoropolyethers (HFPEs) 

compounds, to the list of those excluded 

from the VOC definition on the basis 

that these compounds make a negligible 

contribution to tropospheric ozone 

formation. ADEM is updating its SIP to 

be consistent with EPA rule finalized on 

February 12, 2013, which excludes 

these compounds from the regulatory 

VOC definition. 

DATES: This rule is effective on August 

11, 2014 without further notice, unless 

EPA receives relevant adverse comment 

by July 10, 2014. If EPA receives such 

comment, EPA will publish a timely 

withdrawal in the Federal Register 

informing the public that this rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2014–0311, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2014– 

0311,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. ‘‘EPA–R04–OAR–2014– 

0311.’’ EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wong, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. Mr. 

Richard Wong may be reached by phone 

at (404) 562–8726 or by electronic mail 

address wong.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Tropospheric ozone, commonly 

known as smog, occurs when VOCs and 

nitrogen oxides (NOX) react in the 

atmosphere. Because of the harmful 

health effects of ozone, EPA limits the 

amount of VOCs and NOX that can be 

released into the atmosphere. VOCs are 

those compounds of carbon (excluding 

carbon monoxide, carbon dioxide, 

carbonic acid, metallic carbides or 

carbonates, and ammonium carbonate) 

that form ozone through atmospheric 

photochemical reactions. Compounds of 

carbon (or organic compounds) have 

different levels of reactivity; they do not 

react at the same speed, or do not form 

ozone to the same extent. 

It has been EPA’s policy that 

compounds of carbon with negligible 

reactivity need not be regulated to 

reduce ozone. See 42 FR 35314, July 8, 

1977. EPA determines whether a given 

carbon compound has ‘‘negligible’’ 

reactivity by comparing the compound’s 

reactivity to the reactivity of ethane. 

EPA lists these compounds in its 


emcdonald on DSK67QTVN1PROD with RULES