54806 Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this rule, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule which is located 

in the Rules section of this Federal 

Register. 

Dated: August 26, 2010. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. 2010–22339 Filed 9–8–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2010–0715; FRL–9200–3] 

Approval and Promulgation of 

Implementation Plans—Maricopa 

County (Phoenix) PM–10 

Nonattainment Area; Serious Area Plan 

for Attainment of the 24-Hour PM–10 

Standard; Clean Air Act Section 189(d) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

EPA is proposing to approve in part 

and disapprove in part State 

implementation plan (SIP) revisions 

submitted by the State of Arizona to 

meet the Clean Air Act (CAA) 

requirements applicable to the serious 

Maricopa County (Phoenix) 

nonattainment area (Maricopa area). 

These requirements apply to the 

Maricopa area following EPA’s June 6, 

2007 finding that the area failed to meet 

its December 31, 2006 serious area 

deadline to attain the national ambient 

air quality standards (NAAQS) for 

particulate matter of ten microns or less 

(PM–10). Under CAA section 189(d), 

Arizona was required to submit a plan 

by December 31, 2007 providing for 

expeditious 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 

per year until attainment (189(d) plan). 

EPA is proposing to disapprove 

provisions of the 189(d) plan for the 

Maricopa area because they do not meet 

applicable CAA requirements for 

emissions inventories as well as for 

attainment, five percent annual 

emission reductions, reasonable further 

progress and milestones, and 

contingency measures. EPA is also 

proposing to disapprove the 2010 motor 

vehicle emission budget in the 189(d) 

plan as not meeting the requirements of 

CAA section 176(c) and 40 CFR 

93.118(e)(4). EPA is also proposing a 

limited approval and limited 

disapproval of State regulations for the 

control of PM–10 from agricultural 

sources. Finally, EPA is proposing to 

approve various provisions of State 

statutes relating to the control of PM–10 

emissions in the Maricopa area. 

DATES: Any comments must arrive by 

October 12, 2010. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2010–0715, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions. 

2. E-mail: nudd.gregory@epa.gov. 

3. Mail or deliver: Gregory Nudd (Air2), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. 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. 

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 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Nudd, U.S. EPA Region 9, 415– 

947–4107, nudd.gregory@epa.gov or 

http://www.epa.gov/region09/air/ 

actions. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ mean U.S. EPA. 

Table of Contents 

I. PM–10 Air Quality Planning in the 

Maricopa Area 

II. Overview of Applicable CAA 

Requirements 

III. Evaluation of the 189(d) Plan’s 

Compliance With CAA Requirements 

IV. Summary of Proposed Actions 

V. Statutory and Executive Order Reviews 

I. PM–10 Air Quality Planning in the 

Maricopa Area 

The NAAQS are standards for certain 

ambient air pollutants set by EPA to 

protect public health and welfare. PM– 

10 is among the ambient air pollutants 

for which EPA has established healthbased standards. PM–10 causes adverse 

health effects by penetrating deep in the 

lungs, aggravating the cardiopulmonary 

system. Children, the elderly, and 

people with asthma and heart 

conditions are the most vulnerable. 

On July 1, 1987 EPA revised the 

health-based national ambient air 

quality standards (52 FR 24672), 

replacing the standards for total 

suspended particulates with new 

standards applying only to particulate 

matter up to ten microns in diameter 

(PM–10). At that time, EPA established 

two PM–10 standards, annual standards 

and 24-hour standards. Effective 

December 18, 2006, EPA revoked the 

annual PM–10 standards but retained 

the 24-hour PM–10 standards. 71 FR 

61144 (October 17, 2006). The 24-hour 

PM–10 standards of 150 micrograms per 

cubic meter (μg/m3) are attained when 

the expected number of days per 

calendar year with a 24-hour average 

concentration above 150 μg/m3, as 

determined in accordance with 

appendix K to 40 CFR part 50, is equal 

to or less than one. 40 CFR 50.6 and 40 

CFR part 50, appendix K. 

On the date of enactment of the 1990 

Clean Air Act Amendments (CAA or the 

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1Subsequently, in June 4, 2008 and February 23, 

2009 letters from Nancy C. Wrona, ADEQ, to 

Deborah Jordan, EPA, the State submitted 

‘‘Supplemental Information to Section 189(d) 5% 

Reasonable Further Progress PM–10 SIP Revisions 

for the Maricopa County and Apache Junction 

(Metropolitan Phoenix) Nonattainment Area.’’ 

2 ‘‘State Implementation Plans; General Preamble 

for the Implementation of Title I of the Clean Air 

Act Amendments of 1990,’’ 57 FR 13498 (April 16, 

1992) (General Preamble) and 57 FR 18070 (April 

28, 1992). 

3 ‘‘State Implementation Plans for Serious PM–10 

Nonattainment Areas, and Attainment Date Waivers 

for PM–10 Nonattainment Areas Generally; 

Addendum to the General Preamble for the 

Implementation of Title I of the Clean Air Act 

Amendments of 1990,’’ 59 FR 41998 (August 16, 

1994) (Addendum). 

Act), many areas, including the 

Maricopa area, meeting the 

qualifications of section 107(d)(4)(B) of 

the amended Act were designated 

nonattainment by operation of law. 56 

FR 11101 (March 15, 1991). The 

Maricopa area is located in the eastern 

portion of Maricopa County and 

encompasses the cities of Phoenix, 

Mesa, Scottsdale, Tempe, Chandler, 

Glendale, as well as 17 other 

jurisdictions and unincorporated 

County lands. The nonattainment area 

also includes the town of Apache 

Junction in Pinal County. EPA codified 

the boundaries of the Maricopa area at 

40 CFR 81.303. 

Once an area is designated 

nonattainment for PM–10, section 188 

of the CAA outlines the process for 

classifying the area as moderate or 

serious and establishes the area’s 

attainment deadline. In accordance with 

section 188(a), at the time of 

designation, all PM–10 nonattainment 

areas, including the Maricopa area, were 

initially classified as moderate. 

A moderate PM–10 nonattainment 

area must be reclassified to serious PM– 

10 nonattainment by operation of law if 

EPA determines after the applicable 

attainment date that, based on air 

quality, the area failed to attain by that 

date. CAA sections 179(c) and 188(b)(2). 

On May 10, 1996, EPA reclassified the 

Maricopa area as a serious PM–10 

nonattainment area. 61 FR 21372. 

As a serious PM–10 nonattainment 

area, the Maricopa area acquired a new 

attainment deadline of no later than 

December 31, 2001. CAA section 

188(c)(2). However CAA section 188(e) 

allows states to apply for up to a 5-year 

extension of that deadline if certain 

conditions are met. In order to obtain 

the extension, there must be a showing 

that: (1) Attainment by the applicable 

attainment date would be impracticable; 

(2) the state complied with all 

requirements and commitments 

pertaining to the area in the 

implementation plan for the area; and 

(3) the state demonstrates that the plan 

for the area includes the most stringent 

measures (MSM) that are included in 

the implementation plan of any state or 

are achieved in practice in any state, 

and can feasibly be implemented in the 

specific area. Arizona requested an 

attainment date extension under CAA 

section 188(e) from December 31, 2001 

to December 31, 2006. 

On July 25, 2002, EPA approved the 

serious PM–10 plan for the Maricopa 

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 granted 

Arizona’s request to extend the 

attainment date for the area to December 

31, 2006. 67 FR 48718. This final action, 

as well as the two proposals preceding 

it, provide a more detailed discussion of 

the history of PM–10 planning in the 

Maricopa area. See 65 FR 19964 (April 

13, 2000) and 66 FR 50252 (October 2, 

2001). 

On June 6, 2007, EPA found that the 

Maricopa area failed to attain the 24- 

hour PM–10 NAAQS by December 31, 

2006 (72 FR 31183) and required the 

submittal of a new plan meeting the 

requirements of section 189(d) by 

December 31, 2007. 

On December 19, 2007, the Maricopa 

Association of Governments (MAG) 

adopted the ‘‘MAG 2007 Five Percent 

Plan for PM–10 for the Maricopa County 

Nonattainment Area.’’ In this proposal, 

we refer to this plan as the ‘‘189(d) 

plan.’’ On December 21, 2007 the 

Arizona Department of Environmental 

Quality (ADEQ) submitted the 189(d) 

plan and two Pinal County resolutions.1

MAG adopted and ADEQ submitted this 

SIP revision in order to address the CAA 

requirements in section 189(d). 

CAA section 110(k)(1) requires EPA to 

determine whether a SIP submission is 

complete within 60 days of receipt. This 

section also provides that any plan that 

has not been affirmatively determined to 

be complete or incomplete shall become 

complete within 6 months by operation 

of law. EPA’s completeness criteria are 

found in 40 CFR part 51, appendix V. 

The 189(d) plan submittal became 

complete by operation of law on June 

21, 2008. 

II. Overview of Applicable CAA 

Requirements 

As a serious PM–10 nonattainment 

area that failed to meet its applicable 

attainment date, December 31, 2006, the 

Maricopa area is subject to CAA section 

189(d) which provides that the state 

shall ‘‘submit within 12 months after the 

applicable attainment date, plan 

revisions which provide for attainment 

of the PM–10 air quality standard and, 

from the date of such submission until 

attainment, for an annual reduction of 

PM–10 or PM–10 precursor emissions 

within the area of not less than 5 

percent of the amount of such emissions 

as reported in the most recent inventory 

prepared for the area.’’ 

The general planning and control 

requirements for all nonattainment 

plans are found in CAA sections 110 

and 172. EPA has issued a General 

Preamble 2 and Addendum to the 

General Preamble 3 describing our 

preliminary views on how the Agency 

intends to review SIPs submitted to 

meet the CAA’s requirements for the 

PM–10 NAAQS. The General Preamble 

mainly addresses the requirements for 

moderate nonattainment areas and the 

Addendum, the requirements for serious 

nonattainment areas. EPA has also 

issued other guidance documents 

related to PM–10 plans which are cited 

as necessary below. In addition, EPA 

addresses the adequacy of the motor 

vehicle budget for transportation 

conformity (CAA section 176(c)) in this 

proposed plan action. The PM–10 plan 

requirements addressed by this 

proposed action are summarized below. 

A. Emissions Inventories 

CAA section 172(c)(3) requires that an 

attainment plan include a 

comprehensive, accurate, and current 

inventory of actual emissions from all 

sources of the relevant pollutants. 

B. Attainment Demonstration 

The attainment deadline applicable to 

an area that misses the serious area 

attainment date is as soon as 

practicable, but no later than 5 years 

from the publication date of the 

nonattainment finding notice. EPA may, 

however, extend the attainment 

deadline to the extent it deems 

appropriate for a period no greater than 

10 years from the publication date, 

‘‘considering the severity of 

nonattainment and the availability and 

feasibility of pollution control 

measures.’’ CAA sections 179(d)(3) and 

189(d). 

C. Five Percent (5%) Requirement 

A 189(d) plan must provide for an 

annual reduction of PM–10 or PM–10 

precursor emissions within the area of 

not less than 5% of the amount of such 

emissions as reported in the most recent 

inventory prepared for the area. 

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4The 189(d) plan projects that the Maricopa area 

will attain the PM–10 standard by December 31, 

2010. For the 5% demonstration, the plan projects 

emission reductions in 2008, 2009 and 2010. The 

RFP demonstration shows annual emission 

reductions in a downward linear trend from 2007 

to 2010. See 189(d) plan, chapters 7 and 8, and 

discussions of these demonstrations below. 

5The 2005 Periodic Inventory in the 189(d) plan 

also includes data on PM–10 precursors. However, 

a scientific analysis of the particulate matter found 

on filters on exceedance days indicates that the vast 

majority of PM–10 on these days is directly emitted 

PM–10 such as soil dust. See attachment, ‘‘On 

speciated PM in the Salt River industrial area in 

2002,’’ dated January 22, 2010, to E-mail from Peter 

Hyde, Arizona State University, to Gregory Nudd, 

EPA, July 30, 2010. Therefore, the 189(d) plan 

appropriately focuses on directly emitted PM–10. 

6Rule effectiveness is an estimate of the ability 

of a regulatory program to achieve all of the 

emission reductions that could have been achieved 

by full compliance with the applicable regulations 

at all sources at all times. EPA requires a state to 

account for rule effectiveness when estimating 

emissions from source categories that are subject to 

regulations that reduce emissions. See ‘‘Emissions 

Inventory Guidance for Implementation of Ozone 

and Particulate Matter National Ambient Air 

Quality Standards (NAAQS) and Regional Haze 

Regulations,’’ EPA–454/R–05–001, November 2005 

(2005 Emissions Inventory Guidance), p. B–3. 

D. Reasonable Further Progress and 

Quantitative Milestones 

CAA section 172(c)(2) requires that 

implementation plans demonstrate 

reasonable further progress (RFP) as 

defined in section 171(1). Section 171(1) 

defines RFP as ‘‘such annual 

incremental reductions in emissions of 

the relevant air pollutant as are required 

by this part [part D of title I] or may 

reasonably be required by the 

Administrator for the purpose of 

ensuring attainment of the applicable 

national ambient air quality standard by 

the applicable date.’’ 

Section 189(c)(1) requires the plan to 

contain quantitative milestones which 

will be achieved every 3 years and 

which will demonstrate that RFP is 

being met. 

E. Contingency Measures 

CAA section 172(c)(9) requires that 

implementation plans provide for ‘‘the 

implementation of specific measures to 

be undertaken if the area fails to make 

reasonable further progress, or to attain 

the [NAAQS] by the attainment date 

applicable under this part [part D of title 

I]. Such measures are to take effect in 

any such case without further action by 

the State or the Administrator.’’ 

F. Transportation Conformity and Motor 

Vehicle Emissions Budgets 

Transportation conformity is required 

by CAA section 176(c). Our conformity 

rule (40 CFR part 93, subpart A) requires 

that transportation plans, programs, and 

projects conform to state air quality 

implementation plans and establishes 

the criteria and procedures for 

determining whether or not they do so. 

Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the NAAQS or any 

interim milestone. Once a SIP that 

contains motor vehicle emissions 

budgets (MVEBs) has been submitted to 

EPA, and EPA has found it adequate, 

these budgets are used for determining 

conformity: emissions from planned 

transportation activities must be less 

than or equal to the budgets. 

G. Adequate Legal Authority and 

Resources 

CAA section 110(a)(2)(E)(i) requires 

that implementation plans provide 

necessary assurances that the state (or 

the general purpose local government) 

will have adequate personnel, funding 

and authority under state law. 

Requirements for legal authority are 

further defined in 40 CFR part 51, 

subpart L (51.230–51.232) and for 

resources in 40 CFR 51.280. States and 

responsible local agencies must also 

demonstrate that they have the legal 

authority to adopt and enforce 

provisions of the SIP and to obtain 

information necessary to determine 

compliance. SIPs must also describe the 

resources that are available or will be 

available to the State and local agencies 

to carry out the plan, both at the time 

of submittal and during the 5-year 

period following submittal of the SIP. 

III. Evaluation of the 189(d) Plan’s 

Compliance With CAA Requirements 

A. Emissions Inventories 

CAA section 172(c)(3) requires all 

nonattainment area plans to contain a 

comprehensive, accurate, and current 

inventory of emissions from all sources 

of the relevant pollutants in the 

geographic area encompassed in the 

plan. EPA believes that the inventories 

submitted by Arizona as part of the 

189(d) plan for the Maricopa area are 

comprehensive and current, but are not 

sufficiently accurate as discussed below. 

MAG developed the 189(d) plan using 

the ‘‘2005 Periodic Emissions Inventory 

for the Maricopa County, Arizona 

Nonattainment Area,’’ May 2007 (2005 

Periodic Inventory). 189(d) plan, 

appendices, volume one, appendix B, 

exhibit 1. This inventory was developed 

by the Maricopa County Air Quality 

Department (MCAQD) as the baseline 

inventory for the area. 189(d) plan, 

p. 3–2. 

MAG used economic growth estimates 

to project 2007, 2008, 2009 and 2010 

emissions inventories for the area from 

the 2005 Periodic Inventory baseline. 

MAG then used these projected 

inventories to calculate the 5% 

reduction target required by section 

189(d) and as the baseline for the RFP 

demonstration required by section 

189(c).4 See 189(d) plan, appendices, 

volume three, ‘‘Technical Document in 

Support of the MAG 2007 Five Percent 

Plan for PM–10 for the Maricopa County 

Nonattainment Area,’’ (189(d) plan 

TSD), chapter II. 

The 2005 Periodic Inventory prepared 

for the Maricopa area describes and 

quantifies the annual and daily 

emissions of PM–10 from point, area, 

nonroad, on-road, and 

nonanthropogenic sources in the 2,880 

square mile nonattainment area.5 The 

2005 Periodic Inventory indicates that 

the dominant sources of PM–10 

emissions in the Maricopa area are 

construction-related fugitive dust, 

including residential, commercial, road 

and other land clearing (38 percent); 

paved road dust, including trackout (16 

percent); unpaved roads (10 percent); 

and windblown dust (9 percent). 2005 

Periodic Inventory, table 1.6–11. 

EPA has evaluated the base year 

inventory relied on by MAG in light of 

the three criteria in section 172(c)(3) 

and our conclusions follow. 

Current: The base year, 2005, is a 

reasonably current year, considering the 

length of time needed to develop an 

inventory and thereafter to develop a 

plan based on it. The 2005 Periodic 

Inventory was the most recent inventory 

available when the 189(d) plan was 

developed. 

Comprehensive: The 189(d) plan’s 

inventories are sufficiently complete. 

All of the relevant source categories are 

quantified. 

Accurate: The 2005 Periodic 

Inventory is not sufficiently accurate for 

the purposes of the 189(d) plan. As 

discussed below, this inventory and the 

subsequent year inventories that MAG 

derived from it overestimate the 

baseline emissions for construction and 

other sources. The accuracy of the 

baseline inventory is particularly 

important for this plan because it relies 

heavily on reductions from improving 

the effectiveness of existing rules 6 for 

construction and other sources in order 

to meet the CAA’s 5%, RFP and 

attainment requirements. See 189(d) 

plan, chapters 7 and 8. 

MCAQD Rule 310 requires control 

measures for dust generating activities 

such as excavation, construction, 

demolition and bulk material handling. 

According to the 2005 Periodic 

Inventory, the majority of emissions 

subject to control under Rule 310 are 

from residential, commercial and road 

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7 2005 Periodic Inventory, appendix 2.2, ‘‘Rule 

Effectiveness Study for the Maricopa County Rules 

310, 310.01, and 316.’’ 

8The data from the 2010 analysis were from 

inspections conducted at the time the original rule 

effectiveness calculation was being developed, so 

that information should have been in the MCAQD’s 

database. The analytical method was a hybrid of a 

simple average of the results in the inspection 

database and the 2005 Emissions Inventory 

Guidance. 9E-mail from Matthew Poppen, MCAQD, to 

Gregory Nudd, EPA, ‘‘Back-casting of RE rates,’’ 

April 19, 2010 (Poppen E-mail). 

10EPA is also concerned that the method MCAQD 

used to estimate rule effectiveness for non-metallic 

mineral processing and other sources subject to 

Rule 316 is dependent on qualitative factors rather 

than compliance data. 

11This data summary was compiled from the 

emission reduction calculations found in the 189(d) 

plan TSD, chapter III. 

construction. Measure #8 in the 189(d) 

plan is a commitment to implement 

proactive and complaint based 

inspections during night-time and on 

weekends and is a telling example of 

how the 189(d) plan depends primarily 

on improving Rule 310 effectiveness to 

demonstrate the required annual 5% 

reductions and RFP. The plan asserts 

that Measure #8 will reduce PM–10 

emissions by 1,884 tons per year (tpy). 

189(d) plan, p. 7–3. Of that, 1,694 tpy 

are attributed to increases in 

compliance, and therefore in the 

effectiveness, of Rule 310. 189(d) plan 

TSD, p. III–5. This pattern is repeated in 

Measures #2, #3, #9, #10, #16, and #44, 

with a large majority of the 189(d) plan’s 

total emissions reductions derived from 

increased compliance with Rule 310. 

This pattern is further detailed in table 

2 below. 

For the 2005 Periodic Inventory, 

MCAQD used a set of 63 sample 

inspections of sources subject to Rule 

310 in order to estimate its 

effectiveness.7 An analysis of these 

inspections yielded an estimated rule 

effectiveness of 51 percent. However, an 

analysis conducted by MCAQD of the 

entire database of over 11,000 relevant 

inspections during the time period of 

the sample inspections yielded an 

estimated rule effectiveness of 64.5 

percent. In other words, examination of 

the larger database suggests that a 

significantly higher percentage of 

sources were in compliance, and 

accordingly the aggregate emissions 

inventory for this source category could 

be proportionately smaller than that 

suggested by the smaller set of sample 

inspections. While MCAQD conducted 

this analysis in 2010, after the 

development of the 189(d) plan, the data 

and the method were available at the 

time it produced the 2005 Periodic 

Inventory.8 Table 1 below shows the 

impact of these two different rule 

effectiveness values on the estimate of 

fugitive dust emissions from 

construction sources in the Maricopa 

area. The data in table 1 are from the 

emission rate back-casting analysis 

conducted by MCAQD in 2010.9

TABLE 1—IMPACT OF RULE 310 EFFECTIVENESS METHODOLOGY ON ESTIMATED EMISSIONS FROM CONSTRUCTION

ACTIVITY

Estimation method 

Rule effectiveness 

(percent) 

Estimated 2005 

emissions for 

construction 

activity 

(tons per year) 

Sample Rule 310 inspections (63 total inspections between July and December 2006) .............................. 51 32,130 

All Rule 310 inspections (over 11,000 between July 2006 and June 2007) .................................................. 64.5 24,968 

Difference in emissions ................................................................................................................................................................... 7,162 

(¥22%) 

EPA believes that analysis of the full 

database of 11,000 Rule 310 inspections 

provides a more accurate measure of 

rule effectiveness than using a sample of 

63 inspections. This is because the 63 

inspections may not be representative of 

the entire population of sources covered 

by the rule. The larger data set is much 

more likely to be free of sample biases. 

Therefore, based on this analysis of the 

larger data set, EPA has determined that 

the initial estimate of rule effectiveness 

for Rule 310 was not accurate. 

There is a similar inaccuracy in the 

rule effectiveness calculations for 

MCAQD Rule 310.0110 for unpaved 

parking lots, unpaved roads and similar 

sources of fugitive dust emissions. For 

the 2005 Periodic Inventory, MCAQD 

used a set of 124 sample inspections to 

estimate the effectiveness of Rule 

310.01. 2005 Periodic Inventory, 

appendix 2.2. An analysis of these 

inspections yielded an estimated rule 

effectiveness of 68 percent. However, an 

analysis conducted by MCAQD of the 

entire database of over 4,500 relevant 

inspections during the time period of 

the sample inspections yielded an 

estimated rule effectiveness of 90 

percent. See Poppen Email. 

The significance of the inventory 

inaccuracies discussed above is 

graphically depicted in table 2: 

TABLE 211—MEASURES TO IMPROVE COMPLIANCE WITH RULES 310 AND 310.01 COMPARED TO ALL MEASURES

SUPPORTING THE ATTAINMENT, 5% AND RFP DEMONSTRATIONS

2008 2009 2010 

Total reductions from attainment, 5% and RFP measures [tpy] ............................................................................... 6,603 15,422 19,840 

Reductions from measures to improve rule effectiveness of Rule 310 .................................................................... 4,658 11,292 15,244 

Reductions from measures to improve rule effectiveness of Rule 310.01 ............................................................... 360 1,061 1,063 

% of reductions from such measures ........................................................................................................................ 76% 80% 82% 

As shown in table 2, the 189(d) plan 

is designed to achieve the additional 

reductions in emissions required for the 

attainment, 5% and RFP demonstrations 

primarily through improvements in rule 

effectiveness for the sources regulated 

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by Rules 310 and 310.01. The 

inaccuracies in the baseline emissions 

inventory were carried through into the 

future year emission inventories and the 

calculations of emission reductions for 

those demonstrations. 

Moreover, the underestimation of the 

effectiveness of Rules 310 and 310.01 

resulted in a control strategy with a high 

probability of failure because the overemphasis on achieving emission 

reductions from the sources regulated 

by these rules likely resulted in a 

corresponding de-emphasis on emission 

reductions from other sources 

contributing to the nonattainment 

problem in the Maricopa area. In table 

3 below we compare the projected 

percentage of 2010 emissions 

attributable to certain source categories 

before implementation of the 189(d) 

plan’s controls to the projected 

percentage of emission reductions 

attributed to controls for these 

categories in 2010. The source 

categories are those contributing more 

than 5% to the projected 2010 inventory 

of annual PM–10 emissions. See 189(d) 

TSD, pp. II–17 and chapter III. 

TABLE 3—COMPARISON OF THE 2010 EMISSIONS REDUCTIONS EXPECTED FROM THE CONTROL MEASURES TO THE

PROPORTION OF 2010 EMISSIONS FOR PRINCIPAL SOURCES OF PM–10 IN THE NONATTAINMENT AREA

Source category 

Percentage of 

pre-control 

2010 emissions 

Percentage of 

estimated 2010 

emission 

reductions 

Construction ..................................................................................................................................................... 33.1 82.5 

Paved Roads (including trackout) ................................................................................................................... 19.1 5.1 

Unpaved Roads ............................................................................................................................................... 17.4 0.0 

Fuel Combustion and Fires ............................................................................................................................. 5.6 0.2 

Windblown dust from vacant land ................................................................................................................... 5.4 7.7 

Other Sources (<5% each) .............................................................................................................................. 19.4 4.5 

As can be seen from this comparison, 

the plan’s emphasis on reducing 

emissions from the construction 

industry is out of proportion to that 

source category’s relative contribution 

to the projected 2010 inventory. 

For the reasons discussed above, EPA 

is proposing to disapprove under CAA 

section 110(k)(3) the 2005 baseline 

emissions inventory in the 189(d) plan 

and all of the projected inventories as 

not meeting the requirements of section 

172(c)(3). 

B. Measures in the 189(d) Plan 

1. Introduction 

The 189(d) plan contains 53 measures 

designed to reduce emissions of PM–10. 

A detailed description and 

implementation schedule for each 

measure is provided in chapter 6 of the 

plan. Of the 53 measures, 25 measures 

are intended to support the attainment, 

RFP and 5% demonstrations provided 

in the plan, and 9 are contingency 

measures. These measures incorporate 

differing strategies to target emissions 

from a variety of activities within the 

Maricopa area. The remaining measures 

are included to represent additional 

efforts by the State and local 

jurisdictions to reduce emissions 

beyond those quantified in the plan. As 

those measures are implemented, the 

189(d) plan provides that a more 

detailed assessment of the air quality 

benefits may be developed and reported 

in the future. 

EPA is proposing action on the 

measures in the 189(d) plan that 

constitute mandatory directives to the 

regulated community or to various local 

jurisdictions to adopt certain legislative 

requirements. These measures typically 

involve emissions reductions that can 

be reasonably quantified, and/or 

regulatory components that are 

enforceable. The 189(d) plan does not 

take specific emission reduction credits 

for the additional measures referred to 

above where the ability to quantify 

emission reductions was considered to 

be limited. 

In reviewing a statute, regulation, or 

rule for SIP approval, EPA looks to 

ensure that the provision is enforceable 

as required by CAA section 110(a), is 

consistent with all applicable EPA 

guidance, and does not relax existing 

SIP requirements as required by CAA 

sections 110(l) and 193. Guidance and 

policy documents that we use to 

evaluate enforceability and PM–10 rules 

include the following: 

1. ‘‘Issues Relating to VOC Regulation 

Cutpoints, Deficiencies, and Deviations; 

Clarification to Appendix D of 

November 24, 1987 Federal Register 

Notice,’’ (Blue Book), notice of 

availability published in the May 25, 

1988 Federal Register. 

2. ‘‘Guidance Document for Correcting 

Common VOC & Other Rule 

Deficiencies,’’ EPA Region 9, August 21, 

2001 (the Little Bluebook). 

3. ‘‘State Implementation Plans; 

General Preamble for the 

Implementation of Title I of the Clean 

Air Act Amendments of 1990,’’ 57 FR 

13498 (April 16, 1992) (General 

Preamble); 57 FR 18070 (April 28, 

1992). 

4. ‘‘State Implementation Plans for 

Serious PM–10 Nonattainment Areas, 

and Attainment Date Waivers for PM–10 

Nonattainment Areas Generally; 

Addendum to the General Preamble for 

the Implementation of Title I of the 

Clean Air Act Amendments of 1990,’’ 59 

FR 41998 (August 16, 1994) 

(Addendum). 

5. ‘‘PM–10 Guideline Document,’’ EPA 

452/R–93–008, April 1993. 

2. Measures Proposed for Approval 

EPA has identified the State statutory 

provisions submitted with the 189(d) 

plan that implement the directives in 

each measure for which we are 

proposing action. Many of the 189(d) 

plan measures refer to Arizona Senate 

Bill 1552 (SB 1552). In 2007, the 

Arizona Legislature passed SB 1552, 

which includes several air quality 

provisions designed to reduce PM–10. 

SB 1552 adds new and amends existing 

provisions of the Arizona Revised 

Statutes (ARS) and is included in the 

189(d) plan submittal. 189(d) plan, 

chapter 10, ‘‘Commitments for 

Implementation,’’ volume two. We are 

proposing to approve the sections of the 

ARS that implement the plan measures 

identified in table 4 below. For ease of 

discussion, the statutory provisions that 

we are proposing to approve are 

associated with measures that can be 

generally grouped into seven categories: 

on-site dust management, certification 

programs, vehicle use, leaf blowers, 

unpaved areas, burning and agriculture. 

A brief discussion of each category is 

provided after the table. 

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Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 54811 

12Measure #50 concerns the State statutory and 

regulatory program for the control of PM–10 from 

agricultural sources in the Maricopa area. The 

program is codified in ARS 49–457 and Arizona 

Administrative Code (AsAC) R18–2–610 and R18– 

2–611. ARS 49–457 established the program and 

authorized a committee to adopt implementing 

regulations. While we are proposing to fully 

approve the amendment to ARS–457 which was 

submitted with the 189(d) plan, we do not describe 

it further in this section because we address the 

agricultural program in detail in section III.B.3 

below. 

TABLE 4—189(d) PLAN MEASURE CATEGORIES AND ASSOCIATED STATUTORY PROVISIONS

Category Measure numbers from 189(d) 

plan Associated statutory provisions 

On-site management ..................................................... 2, 3, 16 ...................................... ARS 49–474.05. 

Certification programs ................................................... 5*, 24* ....................................... ARS 9–500.04, ARS 49–457.02, 

ARS 49–474.01. 

Vehicle Use ................................................................... 19*, 23, 31, 46 .......................... ARS 9–500.04, ARS 9–500.27, ARS 49–457.03, 

ARS 49–457.04, ARS 49–474.01. 

Leaf blowers .................................................................. 18, 21, 22, 45 ............................ ARS 9–500.04, ARS 11–877, ARS 49–457.01. 

Unpaved areas .............................................................. 25, 26*, 28, 33 .......................... ARS 9–500.04, ARS 28–6705, ARS 49–474.01. 

Burning .......................................................................... 35, 47 ........................................ ARS 49–501. 

Agriculture ...................................................................... 50* ............................................. ARS 49–457.12

* The State submitted these measures as contingency measures pursuant to CAA section 172(c)(9). See section III.F below for further 

discussion. 

With the exception of ARS 49–457, 

discussed in section III.B.3 below, and 

ARS 49–474.01, the ARS sections listed 

above are not currently in the Arizona 

SIP. On August 10, 1988, we approved 

an earlier version of ARS 49–474.01 that 

was submitted by the State to EPA on 

May 22, 1987. 53 FR 30224. In 

comparison to this previously approved 

version, the newly submitted version of 

ARS 49–474.01 contains several 

additional requirements regarding 

unstabilized areas and vehicle use that 

make the statutory provision more 

stringent. Therefore, we believe the 

current submitted version of ARS 49– 

474.01 represents a strengthening of the 

SIP and is consistent with the relevant 

policy and guidance regarding SIP 

relaxations. 

On-Site Management 

Many of the 189(d) plan measures are 

related to the reduction of PM–10 

emissions through dust control training 

and on-site management by trained 

personnel. Measures #2 and #3 address 

development of basic and 

comprehensive training programs for 

the suppression of emissions. The 

program requires completion of dust 

control training for water truck and 

water pull drivers, and on-site 

representatives of sites with more than 

one acre of disturbed surface area 

subject to a permit requiring control of 

PM–10 emissions. Any site with five or 

more acres of disturbed surface area 

subject to a permit requiring control of 

PM–10 emissions will be required to 

have a trained dust control coordinator 

on site. Measure #16 involves the 

requirement for subcontractors engaged 

in dust generating operations to be 

registered with the control officer. These 

measures are implemented through ARS 

49–474.05. See 189(d) plan, pp. 6–20, 6– 

24, 6–42, and 6–46. 

Certification Programs 

Some of the 189(d) plan measures 

seek to achieve emissions reductions 

through certification of equipment or 

personnel. In certain cases, the 

certification program is intended to 

provide an incentive for voluntary 

emission reductions and good operating 

practices. In other cases, the 

certification program seeks to maintain 

an appropriate level of emissions 

control from regularly used equipment. 

Measure #5 directs ADEQ to establish 

the Dust-Free Developments Program. 

The purpose of this program is to certify 

persons and entities that demonstrate 

exceptional commitment to the 

reduction of airborne dust. See ARS 49– 

457.02 and 189(d) plan, p. 6–29. 

Measure #24 directs cities and towns to 

require that new or renewed contracts 

for sweeping of city streets must be 

conducted with certified street 

sweepers. Street sweepers must meet 

the certification specifications 

contained in South Coast Air Quality 

Management District (SCAQMD) Rule 

1186. See ARS 9–500.04, ARS 49– 

474.01, and 189(d) plan, p. 6–72. 

Vehicle Use 

Because vehicle use often generates 

PM–10 emissions, the 189(d) plan 

addresses several different activities 

related to vehicle use. Measures #19, 

#23, and #46 restrict off-road vehicle 

use in certain areas and on high 

pollution advisory days, and prescribe 

outreach to off-road vehicle purchasers 

to inform them of methods for reducing 

generation of dust. See ARS 9–500.27, 

ARS 49–457.03, ARS 49–457.04, and 

189(d) plan, pp. 6–53, 6–71 and 6–190. 

Measure #31 restricts vehicle use and 

parking on unpaved or unstabilized 

vacant lots. See ARS 9–500.04, ARS 49– 

474.01 and 189(d) plan, p. 6–141. 

Leaf Blowers 

The 189(d) plan seeks to reduce PM– 

10 emissions from the operation of leaf 

blowers. Measures #18 and #45 restrict 

the use of leaf blowers on high pollution 

advisory days or on unstabilized 

surfaces. Measure #21 involves the 

banning of leaf blowers from blowing 

landscape debris into public roadways. 

Measure #22 requires outreach to buyers 

and sellers of leaf blowing equipment to 

inform them of safe and efficient use, 

methods for reducing generation of dust, 

and dust control ordinances and 

restrictions. See ARS 9–500.04, ARS 11– 

877, ARS 49–457.01 and 189(d) plan, 

pp. 6–50, 6–69, 6–70 and 6–189. 

Unpaved Areas 

The 189(d) plan contains several 

measures that seek to reduce PM–10 

emissions by reducing the number of 

unpaved or unstabilized areas. Measures 

#25, #26, and #28 direct cities and 

towns to pave or stabilize parking lots, 

dirt roads, alleys, and shoulders. 

Measure #33 allows counties the ability 

to assess fines to recover the cost of 

stabilizing lots. See ARS 9–500.04, ARS 

49–474.01, ARS 28–6705 and 189(d) 

plan, pp. 6–86, 6–103, 6–124, and 

6–169. 

Burning 

Several measures are designed to 

regulate burning activities. Measure #35 

bans the use of outdoor fireplaces in the 

hospitality industry on ‘‘no burn’’ days. 

Measure #47 bans open burning during 

the ozone season. See ARS 49–501 and 

189(d) plan, pp. 6–174 and 6–190. 

3. Measure Proposed for Limited 

Approval/Disapproval 

Measure #50 is included in the 189(d) 

plan as a contingency measure and is 

designed to achieve emission reductions 

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54812 Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 

13Prior to its classification as serious, the 

Maricopa area, as a moderate PM–10 nonattainment 

area, was required to implement RACM pursuant to 

CAA section 189(a)(1)(C). 

14Area A is defined in ARS 49–541. The 189(d) 

plan does not take any credit for emission 

reductions from the general permit rule’s expansion 

to Area A because it extends beyond the boundaries 

of the Maricopa area. 189(d) plan, p. 8–73. ARS 49– 

451 was not submitted for inclusion into the SIP. 

While not a basis for our proposed action here, we 

recommend that ADEQ either insert the definition 

from ARS 49–451 into the general permit rule or 

submit ARS 49–451 to EPA. 

from agricultural sources of PM–10. 

189(d) plan, pp. 6–191 and 8–73. 

Measure #50 is implemented through 

SB 1552 which amended ARS 49–457 

and requires in section 20 that the best 

management practices (BMP) committee 

for regulated agricultural activities 

adopt revised rules. These rules, AAC 

R18–2–610 and R18–2–611, were 

revised pursuant to amended ARS 49– 

457 and submitted with the 189(d) plan. 

189(d) plan, chapter 10, ‘‘Commitments 

for Implementation,’’ volume two. See 

also 189(d) plan, Measure #41, p. 6–185. 

On May 6, 2010, Arizona again 

submitted the revised versions of AAC 

R18–2–610 and R18–2–611 with 

additional documentation and the 

‘‘Agricultural Best Management 

Practices Guidance Booklet and Pocket 

Guide’’ (Handbook). Letter from 

Benjamin Grumbles, ADEQ, to Jared 

Blumenfeld, EPA, with enclosures, May 

6, 2010. The Handbook provides 

regulated sources with guidance on how 

to implement BMPs and provides 

information to the public and farm 

organizations about AAC R18–2–610 

and R18–2–611 (Handbook, p. 5). 

We describe the history of agricultural 

PM–10 controls in the Maricopa area 

and we evaluate amended ARS 49–457 

and revised AAC R18–2–610 and R18– 

2–611 below. 

a. History 

The analysis done for the ‘‘Plan for 

Attainment of the 24-hour PM–10 

Standard—Maricopa County PM–10 

Nonattainment Area,’’ May 1997— 

(Microscale Plan)—revealed the 

contribution agricultural sources make 

to exceedances of the 24-hour PM–10 

standard in the Maricopa area. See 

Microscale plan, pp. 18–19. In order to 

develop adequate controls for this 

source category, Arizona passed 

legislation, the original version of ARS 

49–457, in 1997 establishing the 

agricultural BMP committee and 

directing the committee to adopt by rule 

by June 10, 2000, an agricultural general 

permit specifying best management 

practices for reducing PM–10 from 

agricultural activities. The legislation 

also required that implementation of the 

agricultural controls begin by June 10, 

2000, with an education program and 

full compliance with the rule to be 

achieved by December 31, 2001. 

In September 1998, the State 

submitted ARS 49–457 and on June 29, 

1999 we approved the statute as meeting 

the reasonably available control 

measure (RACM) requirements of the 

CAA.13 64 FR 34726. 

After a series of meetings during 1999 

and 2000, the agricultural BMP 

committee in 2000 adopted the original 

versions of AAC R18–2–610, 

‘‘Definitions for R18–2–611,’’ and AAC 

R18–2–611, ‘‘Agricultural PM–10 

General Permit; Maricopa PM10 

Nonattainment Area’’ (collectively, 

general permit rule). 66 FR 34598. The 

BMPs are defined in AAC R18–2–610. 

AAC R18–2–611 groups the BMPs into 

three categories (tilling and harvest, 

noncropland, and cropland). The 

original version of AAC R18–2–611 

required that commercial farmers select 

one practice from each of these 

categories. AAC R18–2–611 also 

requires that commercial farmers 

maintain records demonstrating 

compliance with the general permit 

rule. 

In July 2000, the State submitted the 

general permit rule. The State also 

submitted an analysis quantifying the 

emission reductions expected from the 

rule and the demonstration that the rule 

meets the CAA’s RACM, BACM and 

MSM requirements. We approved the 

general permit rule as meeting the 

RACM requirement in CAA section 

189(a)(1)(C) on October 11, 2001. 66 FR 

51869. We approved the general permit 

rule as meeting the requirements for 

BACM and MSM in CAA sections 

189(b)(1)(B) and 188(e) on July 25, 2002. 

67 FR 48718. 

b. Amendments to ARS 49–457 and 

Revisions to the General Permit Rule 

SB 1552 amended ARS 49–457 to 

increase the number of required BMPs 

from one to two in the general permit 

rule by December 31, 2007. SB 1552 also 

expanded the scope of the applicability 

of the general permit rule by amending 

the definition of regulated area to 

include any portion of Area A 14 that is 

located in a county with a population of 

two million or more persons. 

The agricultural BMP committee 

added definitions for the following 

terms to AAC R18–2–610: ‘‘Area A,’’ 

‘‘cessation of night tilling,’’ ‘‘forage crop,’’ 

‘‘genetically modified,’’ ‘‘genetically 

modified organism,’’ ‘‘global position 

satellite system,’’ ‘‘green chop,’’ ‘‘high 

pollution advisory,’’ ‘‘integrated pest 

management,’’ ‘‘night tilling,’’ ‘‘organic 

farming practices,’’ ‘‘precision farming,’’ 

and ‘‘transgenic crops.’’ The definitions 

for ‘‘commercial farm’’ and ‘‘regulated 

agricultural activity’’ were amended to 

include Area A. 

The agricultural BMP committee also 

amended AAC R18–2–611. Section C of 

AAC R18–2–611 was amended to 

require commercial farmers to 

implement two BMPs each from the 

categories of tillage and harvest, 

noncropland, and cropland. The 

following additional BMPs were added 

to the tillage and harvest category in 

Section E of AAC R18–2–611: Green 

chop, integrated pest management, 

cessation of night tilling, precision 

farming, and transgenic crops. The 

cropland category in Section G was 

augmented with the following 

additional options: Integrated pest 

management and precision farming. 

c. Evaluation of Amendments to ARS 

49–457 and Revisions to the General 

Permit Rule 

As stated above, in reviewing a 

statute, regulation, or rule for SIP 

approval, EPA looks to ensure that the 

provision is enforceable as required by 

CAA section 110(a), is consistent with 

all applicable EPA guidance, and does 

not relax existing SIP requirements as 

required by CAA sections 110(l) and 

193. ARS 49–457 and the general permit 

rule generally meet the applicable 

requirements and guidance. We are 

proposing to approve amended ARS 49– 

457 because it strengthens the SIP by 

requiring an increase in the number of 

required BMPs and expanding the 

geographical scope of the agricultural 

BMP program. With regard to the 

general permit rule, we are proposing a 

limited approval and limited 

disapproval and we discuss the bases 

for that proposal below. 

As stated above, we approved the 

general permit rule as meeting the CAA 

requirements for BACM in 2002. Since 

then, several air pollution control 

agencies in California, including the San 

Joaquin Valley Unified Air Pollution 

Control District (SJVAPCD) and the 

Imperial County Air Pollution Control 

District (ICAPCD), have adopted 

analogous rules for controlling PM–10 

emissions from agricultural sources. The 

relevant State and local rules in 

Arizona, California and Nevada are 

summarized in our recent action on 

ICAPCD’s Rule 806. 75 FR 39366, 39383 

(July 8, 2010). 

Since the adoption of controls for 

agricultural sources in the Maricopa 

area, other State and local agencies 

which have adopted such controls, as 

well as EPA, have acquired additional 

expertise about how to control 

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Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 54813 

15For example, SJVAPCD’s Rule 4550 has an 

application submittal and approval process. Great 

Basin Unified Air Pollution Control District’s 

(GBUAPCD) Rule 502 has a similar application 

submittal and approval process. SJVAPCD’s and 

GBUAPCD’s application forms require sources to 

select conservation management practices (CMPs), 

the analogue to Arizona’s BMPs, and to describe the 

specifics of the practices chosen. Such an 

application submittal and approval process 

provides a mechanism to ensure that controls are 

implemented at a BACM level. 

emissions from these sources and 

implement regulations for them. As a 

result, we no longer believe that the 

requirements in the general permit rule 

that we approved in 2002 for the 

Maricopa area fully meet CAA 

requirements. 

AAC R18–2–611 Sections E, F and G 

list BMPs intended to control emissions 

from tillage and harvest, noncropland 

and cropland, and the BMPs on these 

lists are defined in AAC R18–2–610. 

However, as discussed below, the 

definitions in AAC R18–2–610 are 

overly broad. Moreover, there is no 

mechanism in the rule to provide 

sufficient specificity to ensure a BACM 

level of control.15

As an example of the breadth of the 

BMPs, one of the BMPs in AAC R18–2– 

611 Section E, the tillage and harvest 

category, is ‘‘equipment modification.’’ 

This term is defined in AAC R18–2–610 

Section 18 as ‘‘modifying agricultural 

equipment to prevent or reduce 

particulate matter generation from 

cropland.’’ The types of equipment 

modification are not specified in the 

rule, and according to the Handbook, 

examples of this practice include using 

shields to redirect the fan exhaust of the 

equipment or using spray bars that emit 

a mist to knock down PM–10. 

Handbook, p. 10. Because most of the 

PM–10 generated during active 

agricultural operations is due to 

disturbance from parts of agricultural 

equipment that come into direct contact 

with the soil, we expect that using 

appropriately designed spray bars 

would be far more effective at reducing 

PM–10 than redirecting a machine’s fan 

exhaust. However, there is no provision 

in the general permit rule that requires 

a source or regulatory agency to evaluate 

whether the more effective version of 

this BMP is economically and 

technologically feasible. Moreover, 

while AAC R18–2–611 Section I 

requires that a farmer record that he has 

selected the ‘‘equipment modification’’ 

BMP, it does not require the farmer to 

record what type of equipment 

modification he will be implementing. 

Hence, neither ADEQ nor the public can 

verify whether what is being 

implemented is a best available control 

measure. 

An example from AAC R18–2–611 

Section F, the category for noncropland, 

is the ‘‘watering’’ BMP. AAC R18–2–610 

Section 52 defines watering as ‘‘applying 

water to noncropland.’’ The level of 

control achieved would depend on the 

amount of water that was applied, the 

frequency with which it was applied, as 

well as the size and conditions of the 

area to which it was applied. However, 

the rule does not specify the frequency 

or amount of water application or 

otherwise ensure that watering under 

this measure is effective. Moreover, the 

definition for ‘‘noncropland’’ in Section 

31 of AAC R18–2–611 states that it 

‘‘includes a private farm road, ditch, 

ditch bank, equipment yard, storage 

yard, or well head.’’ It is not clear which 

of these areas a farmer would need to 

control upon selecting the ‘‘watering’’ 

BMP. As written, the rule allows 

regulated sources to implement the 

‘‘watering’’ BMP in a manner that may 

not be as effective as best available 

controls. Furthermore, while AAC R18– 

2–611 Section I requires that a farmer 

record that he has selected the 

‘‘watering’’ BMP, it does not require the 

farmer to record how he will be 

implementing this BMP. Hence, neither 

ADEQ nor the public can verify whether 

the BMP that is being implemented is in 

fact a best available control measure. 

An example from AAC R18–2–611 

Section G, the category for cropland, is 

the ‘‘artificial wind barrier’’ BMP. AAC 

R18–2–610 Section 4 defines ‘‘artificial 

wind barrier’’ as ‘‘a physical barrier to 

the wind.’’ The control effectiveness of 

the barrier will depend on what the 

barrier is constructed of, the size of the 

barrier, as well as the placement of the 

barrier. In fact, the Handbook suggests 

that certain materials (e.g., board fences, 

burlap fences, crate walls, and bales of 

hay) be used, notes that the distance of 

10 times the barrier height is considered 

the protected area downwind of a 

barrier, and states that the barrier 

should be aligned across the prevailing 

wind direction. Handbook, p. 20. 

However, the general permit rule does 

not specify any parameters that need to 

be met for the implementation of the 

‘‘artificial wind barrier’’ BMP. Hence a 

source can construct a barrier that is not 

a best available control and still be in 

compliance with the general permit 

rule. 

The absence of sufficiently defined 

requirements makes it difficult for 

regulated parties to understand and 

ensure compliance with the 

requirements, and makes it difficult for 

ADEQ or others to verify compliance 

with the general permit rule. The 

general permit rule needs to be revised 

to ensure that the BMPs are enforceable 

as required by CAA section 110(a) and 

are implemented at a BACM level as 

required by section 189(b)(1)(B). 

4. Summary of Proposed Action on 

Measures in 189(d) Plan 

EPA believes the statutory provisions 

associated with the 189(d) plan 

measures in table 4 in section III.B.2 

above are consistent with the relevant 

policy and guidance regarding 

enforceability and SIP relaxations. 

Therefore, we are proposing to fully 

approve under CAA section 110(k)(3) 

the following Arizona statutory 

provisions, as submitted with the 189(d) 

plan: 

ARS 9–500.04 

ARS 9–500.27 

ARS 11–877 

ARS 28–6705 

ARS 49–457 

ARS 49–457.01 

ARS 49–457.02 

ARS 49–457.03 

ARS 49–457.04 

ARS 49–474.01 

ARS 49–474.05 

ARS 49–501 

EPA is also proposing pursuant to 

CAA section 110(k)(3) to approve the 

‘‘Agricultural Best Management 

Practices Guidance Booklet and Pocket 

Guide’’ as submitted on May 6, 2010. 

EPA is also proposing pursuant to 

CAA section 110(k)(3) a limited 

approval and limited disapproval of 

AAC R18–2–610 and AAC R18–2–611, 

as submitted in the 189(d) plan. We are 

proposing a limited approval because 

AAC R18–2–610 and AAC R18–2–611 

strengthen the SIP. We are proposing a 

limited disapproval because the general 

permit rule does not meet the 

enforceability requirements of CAA 

section 110(a) and no longer ensures 

that controls for agricultural sources in 

the Maricopa area are implemented at a 

BACM level as required by section 

189(b)(1)(B). 

C. Attainment Demonstration 

CAA section 189(d) requires the 

submittal of plan revisions that provide 

for expeditious attainment of the PM–10 

NAAQS. The attainment deadline 

applicable to an area that misses the 

serious area attainment date is as soon 

as practicable, but no later than five 

years from the publication date of the 

notice of a nonattainment finding unless 

extended by EPA as meeting certain 

specified requirements. CAA section 

179(d)(3). Because, as stated previously, 

EPA published the nonattainment 

finding for the Maricopa area on June 6, 

2007 (72 FR 31183), the attainment 

deadline for the area is as expeditiously 

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54814 Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 

16 ‘‘USEPA Quick Look Report for Maricopa 

County (01/01/2008–12/31/2010) Air Quality 

System database, run date: August 26, 2010’’ (AQS 

2008–2010 Quick Look Report). The Air Quality 

System Identifier numbers for the monitors 

referenced in this section are as follows: West 43rd 

Avenue (04–013–4009), Durango Complex (04–013– 

9812), South Phoenix (04–013–4003), Coyote Lakes 

(04–013–4014), Higley (04–013–4006), West 

Chandler (04–013–4004), West Phoenix (04–013– 

0019), Glendale (04–013–2001), Greenwood (04– 

013–3010), Dysart (04–013–4010), Bethune 

Elementary School (04–013–8006). 

17See ‘‘Treatment of Data Influenced by 

Exceptional Events,’’ 72 FR 13560 (March 22, 2007). 

The EER is codified at 40 CFR 50.1 and 50.14. For 

the state flagging requirements, see 40 CFR 

50.14(c)(2). 

18AQS 2008–2010 Quick Look Report. 

19EPA has not evaluated the remaining 

exceptional event claims for 2008 or those for 2009. 

As discussed below, such an evaluation was not 

necessary for us to determine that the Maricopa area 

cannot attain the PM–10 standard by December 31, 

2010. 

20While the 5% requirement of section 189(d) 

can be met by emission reductions of PM–10 or 

as practicable but no later than June 6, 

2012. 

The 189(d) plan projects through a 

modeled attainment demonstration that 

the Maricopa area will attain the PM–10 

standard by December 31, 2010. 189(d) 

plan, chapter 8. According to the plan, 

modeling was conducted for the two 

areas, the Salt River area and the Higley 

monitor, that have the mix and density 

of sources that caused the highest 24- 

hour PM–10 monitor readings in the 

Maricopa area from 2004 through 2006. 

The Salt River area includes the three 

monitors (West 43rd Avenue, Durango 

Complex and Bethune Elementary) that 

recorded violations during those years. 

The Higley monitor did not violate the 

PM–10 standard for that period but had 

one exceedance in 2004 and one in 2006 

and the surrounding area has a different 

mix of sources than the Salt River area. 

The plan also provides a modeled 

attainment demonstration for the 

remainder of the nonattainment area. 

AERMOD was used for the attainment 

demonstration for the Salt River area. 

Attainment for the Higley monitor area 

and the remainder of the nonattainment 

area was shown using a proportional 

rollback approach. 

AERMOD is an EPA-approved model 

and was appropriately used in the 

189(d) plan. The proportional rollback 

approach was also appropriate because 

of the lack of good models for PM–10 on 

large geographic scales. However, EPA 

cannot approve an attainment 

demonstration for PM–10 

nonattainment areas based on modeled 

projections of attainment if actual 

ambient air quality monitoring data 

show that the area cannot attain by the 

projected date. Under 40 CFR 50.6(a), 

the 24-hour PM–10 standard is attained 

when the expected number of 

exceedances per year at each monitoring 

site is less than or equal to one. The 

number of expected exceedances at a 

site is determined by recording the 

number of exceedances in each calendar 

year and then averaging them over the 

past 3 calendar years. 40 CFR part 50, 

appendix K. Thus, in order for the 

Maricopa area to attain the standard by 

December 31, 2010, there can be no 

more than one exceedance at any one 

monitor in the nonattainment area in 

calendar years 2008, 2009 and 2010. 

There were 11 recorded exceedances 

of the PM–10 standard in 2008 in the 

Maricopa area. Five of these 

exceedances were recorded at the West 

43rd Avenue monitor, two at the 

Durango Complex monitor, two at the 

South Phoenix monitor, and two at the 

Coyote Lakes monitor. In 2009, there 

were 22 exceedances recorded in the 

Maricopa Area. Seven of these 

exceedances were recorded at the West 

43rd Avenue monitor, three at the 

Durango Complex monitor, three at the 

South Phoenix monitor, two at the 

Higley monitor, two at the West 

Chandler monitor, one at the West 

Phoenix monitor, one at the Glendale 

monitor, one at Greenwood monitor, 

one at the Dysart monitor, and one at 

the Bethune Elementary School 

monitor.16

Of the eleven 2008 exceedances, ten 

were flagged by the State as due to 

exceptional events under EPA’s 

Exceptional Events Rule (EER) 17 which 

allows the Agency to exclude air quality 

monitoring data from regulatory 

determinations related to exceedances 

or violations of the NAAQS if the 

requirements of the EER are met. All of 

the 2009 exceedances were flagged as 

exceptional events under the EER.18

Under the EER, EPA may exclude 

monitored exceedances of the NAAQS 

from regulatory determinations if a state 

adequately demonstrates that an 

exceptional event caused the 

exceedances. 40 CFR 50.14(a). Before 

EPA will exclude data from these 

regulatory determinations, the state 

must flag the data in EPA’s Air Quality 

System (AQS) database and, after notice 

and an opportunity for public comment, 

submit a demonstration to justify the 

exclusion. After considering the weight 

of evidence provided in the 

demonstration, EPA will decide 

whether or not to concur on each flag. 

EPA has evaluated four of the 2008 

exceedances recorded at the West 43rd 

Avenue monitor in south-central 

Phoenix that the State claims to be due 

to exceptional events.19 The 

exceedances were recorded on March 

14, April 30, May 21, and June 4. On 

May 21, 2010 EPA determined that the 

events do not meet the requirements of 

the EER and therefore do not qualify as 

exceptional events for regulatory 

purposes. Letter from Jared Blumenfeld, 

EPA, to Benjamin H. Grumbles, ADEQ, 

re: PM10 National Ambient Air Quality 

Standard in Phoenix; Request for 

Concurrence for Treatment as 

‘‘Exceptional Events,’’ May 21, 2010, 

with enclosures. As a result, EPA is not 

excluding the exceedances recorded on 

these dates from regulatory 

determinations regarding NAAQS 

exceedances in the Maricopa area. 

Under 40 CFR part 50, appendix K, 

because there have been four 

exceedances in 2008 at the West 43rd 

Avenue monitor, the area cannot attain 

the standard by December 31, 2010 as 

projected in the 189(d) plan. Therefore, 

EPA is proposing to disapprove under 

CAA section 110(k)(3) the attainment 

demonstration in the plan as not 

meeting the requirements of sections 

189(d) and 179(d)(3). 

Finally, we note here, as we address 

in more detail in section III.A above, 

that most of the emission reductions 

relied on in the 189(d) plan are 

projected to be achieved by increased 

compliance with MCAQD Rules 310, 

310.01 and 316. This is the case for the 

attainment demonstration, as well as for 

the 5% and RFP demonstrations 

discussed in sections III.D and III.F 

below. The 189(d) plan provides little or 

no support for the emission reductions 

attributed to these increased compliance 

measures. See, e.g., Measure #8 

(Conduct Nighttime and Weekend 

Inspections) which, with no 

explanation, estimates that compliance 

with MCAQD Rules 310 and 316 will 

increase by 4 percent in 2008, 6 percent 

in 2009 and 8 percent in 2010. 189(d) 

plan TSD, pp. III–4 through III–6. We 

recognize that calculating accurate 

emission reduction estimates for 

increased compliance measures is 

challenging. It is, however, important 

for such estimates to have a technical 

basis, especially when such measures 

are expected to achieve the majority of 

the emission reductions in a SIP. One 

way to begin to address this issue would 

be to initiate an ongoing process to 

verify that compliance rates are 

increasing as expected and that, as a 

result, the projected emission 

reductions are actually being realized. 

D. 5% Requirement 

The demonstration addressing the 5% 

requirement of CAA section 189(d) is 

presented in chapter 7 of the 189(d) 

plan. Chapter 7 shows the annual 5% 

emission reductions of PM–10 20 for 

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Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 54815 

PM–10 precursors, the 189(d) plan relies on PM– 

10 reductions. This reliance is consistent with the 

nature of the particulate matter problem in the 

Maricopa area. See footnote 5. 

21EPA elaborated on its interpretation of this 

language in section 172(c)(9) in the General 

Preamble in the context of the ozone standard: ‘‘The 

EPA recognizes that certain actions, such as 

notification of sources, modification of permits, 

etc., would probably be needed before a measure 

could be implemented effectively.’’ General 

Preamble at 13512. 

2008 through 2010, the projected 

attainment year. The plan quantifies 

emission reductions attributable to 25 of 

the 53 measures in the plan to meet the 

annual 5% targets. Table 7–2 in the 

189(d) plan shows the base case PM–10 

emissions from the 2005 Periodic 

Inventory discussed in section III.A 

above. Table 7–3 presents the controlled 

emissions for 2007 through 2010, i.e., 

the emissions after the emission 

reductions from the 25 quantified 

measures have been applied. The plan 

explains that the annual target is 

obtained by multiplying the controlled 

2007 emissions in table 7–3 by 5% and 

concludes that the 5% targets are met in 

2008, 2009 and 2010 with a surplus 

margin of benefit in each year. 189(d) 

plan, table 7–4, p. 7–19. 

EPA believes the methodology for 

determining the 5% targets for the years 

2008, 2009 and 2010 is generally 

appropriate. However, because we have 

determined that the 2005 Periodic 

Inventory on which the State based 

these calculations is inaccurate, the 

emission reduction targets themselves 

are also necessarily inaccurate. Because 

the 189(d) plan projects emission 

reductions surplus to the 5% targets in 

each year, it is theoretically possible 

that creditable reductions from the 25 

quantified measures would still achieve 

the 5% reductions when recalculated 

from an accurate base year inventory. 

However that could only be determined 

by an EPA review of a revised plan 

based on adjusted calculations. 

Furthermore, the language of section 

189(d) compels us to conclude that the 

5% demonstration in the 189(d) plan 

does not meet that section’s 

requirement. CAA section 189(d) 

requires that the plan provide for annual 

reductions of PM–10 or PM–10 

precursors of not less than 5% each year 

from the date of submission of the plan 

until attainment. The 189(d) plan 

submitted by Arizona does not provide 

for reductions after 2010 because it 

projects attainment of the PM–10 

standard by the end of that year. As 

discussed in section III.C above, the 

Maricopa area cannot attain by 

December 31, 2010. 

For the above reasons, EPA is 

proposing to disapprove under section 

110(k)(3) the demonstration of the 5% 

annual emission reductions in the 

189(d) plan as not meeting the 5% 

requirement in CAA section 189(d). 

E. Reasonable Further Progress and 

Quantitative Milestones 

Under section 189(c)(1), the 189(d) 

plan must demonstrate RFP. We have 

explained in guidance that for those 

areas, such as the Maricopa area, where 

‘‘the nonattainment problem is 

attributed to area type sources (e.g., 

fugitive dust, residential wood 

combustion, etc.), RFP should be met by 

showing annual incremental emission 

reductions sufficient generally to 

maintain linear progress towards 

attainment. Total PM–10 emissions 

should not remain constant or increase 

from 1 year to the next in such an area.’’ 

Further, we stated that ‘‘in reviewing the 

SIP, EPA will determine whether the 

annual incremental emission reductions 

to be achieved are reasonable in light of 

the statutory objective to ensure timely 

attainment of the PM–10 NAAQS.’’ 

Addendum at 42015–42016. 

PM–10 nonattainment SIPs are 

required by section 189(c) to contain 

quantitative milestones to be achieved 

every three years and which are 

consistent with RFP for the area. These 

quantitative milestones should consist 

of elements which allow progress to be 

quantified or measured. Specifically, 

states should identify and submit 

quantitative milestones providing for 

the amount of emission reductions 

adequate to achieve the NAAQS by the 

applicable attainment date. Id. at 42016. 

The 189(d) plan provides a graph 

showing a RFP line representing total 

emissions in the Maricopa area after 

emission reduction credit is applied for 

the 25 measures described in chapter 6 

of the plan which are quantified for the 

purpose of meeting the section 189(c) 

requirements. 189(d) plan, figure 8–25; 

pp. 8–65 through 8–66. The graph 

shows an annual downward linear trend 

in emissions from 2007 through 2010, 

the modeled attainment date in the 

plan. The plan explains that the 

appropriate milestone year is 2010. Id. 

The statutory purpose of RFP is to 

‘‘ensure attainment’’ and the quantitative 

milestones are ‘‘to be achieved until the 

area is redesignated to attainment’’ 

under CAA sections 171(1) and 189(c) 

respectively. As discussed in section 

III.C above, we are proposing to 

disapprove the attainment 

demonstration in the 189(d) plan 

because, as a result of exceedances of 

the PM–10 standard recorded at the 

West 43rd Avenue monitor in 2008, the 

area cannot attain the standard by 2010 

as projected in the plan. As a result, the 

RFP and milestone demonstrations in 

the plan do not achieve the statutory 

purposes of sections 171(1) and 189(c). 

We are therefore proposing to 

disapprove these demonstrations under 

CAA section 110(k)(3) as not meeting 

the requirements of section 189(c). 

F. Contingency Measures 

CAA section 172(c)(9) requires that 

the 189(d) plan provide for the 

implementation of specific measures to 

be undertaken if the area fails to make 

RFP or to attain the PM–10 standard as 

projected in the plan. That section 

further requires that such measures are 

to take effect in any such case without 

further action by the state or EPA. The 

CAA does not specify how many 

contingency measures are necessary nor 

does it specify the level of emission 

reductions they must produce. 

In guidance we have explained that 

the purpose of contingency measures is 

to ensure that additional emission 

reductions beyond those relied on in the 

attainment and RFP demonstrations are 

available if there is a failure to make 

RFP or to attain by the applicable 

statutory date. Addendum at 42014– 

42015. These additional emission 

reductions will ensure continued 

progress towards attainment while the 

SIP is being revised to fully correct the 

failure. To that end, we recommend that 

contingency measures for PM–10 

nonattainment areas provide emission 

reductions equivalent to one year’s 

average increment of RFP. Id. 

In interpreting the requirement that 

the contingency measures must ‘‘take 

effect without further action by the State 

or the Administrator,’’ the General 

Preamble provides the following general 

guidance: ‘‘[s]tates must show that their 

contingency measures can be 

implemented with minimal further 

action on their part and with no 

additional rulemaking actions such as 

public hearings or legislative review.’’ 

General Preamble at 13512.21 Further, 

‘‘[i]n general, EPA will expect all actions 

needed to affect full implementation of 

the measures to occur within 60 days 

after EPA notifies the State of its 

failure.’’ Id. The Addendum at 42015 

reiterates this interpretation. 

We have also interpreted section 

172(c)(9) to allow states to implement 

contingency measures before they are 

triggered by a failure of RFP or 

attainment as long as those measures are 

intended to achieve reductions over and 

beyond those relied on in the attainment 

and RFP demonstrations. Id., and see 

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22Note that because the modeled attainment 

demonstration projected attainment by the end of 

2010, the 189(d) plan does not address the outside 

applicable statutory deadline under section 

179(d)(3), June 6, 2012. See section III.B above. 

LEAN v. EPA, 382 F.3d 575 (5th Cir. 

2004). 

The 189(d) plan addresses the section 

172(c)(9) contingency measure 

requirement in chapter 8, pp. 8–65 

through 8–74. Of the 53 measures in the 

plan, nine are designated and quantified 

as contingency measures: Measures #1, 

#5, #19, #24, #26, #27, #43, #50 and a 

measure identified as ‘‘multiple’’ which 

consists of Measures #14, #15 and #17. 

Chapter 8 of the 189(d) plan includes a 

discussion of each of these measures 

along with associated emission 

reductions for each of the years 2008, 

2009 and 2010. Additional information 

on the emission reductions claimed is in 

the 189(d) plan TSD, chapter IV. The 

measures are also individually 

discussed in chapter 6 of the 189(d) 

plan. 

In calculating the target emission 

reductions that the contingency 

measures must meet, the 189(d) plan 

cites EPA’s recommendation that they 

provide reductions equivalent to one 

year’s average increment of RFP. The 

plan subtracts the total controlled 

emissions in 2010 from the total 

controlled emissions in 2007 and 

divides this sum by three years to 

produce an annual average of 4,869 tpy 

as the target for the contingency 

measures to meet in each of the years 

2008, 2009 and 2010. 189(d) plan, p. 8– 

67. Table 8–14 in the 189(d) plan lists 

the projected emission reductions for 

the nine contingency measures for each 

of these years and shows emission 

reductions in excess of the target for 

each of them. Table 5 below shows the 

contingency measures in the plan 

identified by number and reproduces 

the corresponding projected PM–10 

reductions as depicted in table 8–14 in 

the plan: 

TABLE 5—SUMMARY OF PM–10 EMISSIONS REDUCTIONS FOR CONTINGENCY MEASURES

Contingency measures PM–10 reductions 

[tons/year] 

No. Measure title 2008 2009 2010 

1 ............... Public education and outreach program ................................................................................. 47.6 47.5 48.5 

5 ............... Certification program for dust free developments .................................................................. 28.9 21.5 17.6 

19 ............. Reduce off-road vehicle use ................................................................................................... 140.3 174.6 179.1 

24 ............. Sweep streets with certified PM–10 certified street sweepers ............................................... 1,027.7 1,563.1 2,129.2 

26 ............. Pave or stabilize existing public dirt roads and alleys ........................................................... 1,488.0 2,313.3 3,723.6 

27 ............. Limit speeds to 15 mph on high traffic dirt roads ................................................................... 390.4 390.2 390.2 

43 ............. Additional $5M in FY07 MAG TIP for paving roads/shoulders .............................................. 205.2 820.9 820.9 

50 ............. Agricultural Best Management Practices ................................................................................ 637.6 608.0 579.7 

Multiple ..... Reduce trackout onto paved roads ........................................................................................ 1,256.9 1,273.4 1,270.0 

Total for All Quantified Contingency Measures 5,222.5 7,212.6 9,158.9 

Contingency Measure Reduction Target 4,869 4,869 4,869 

As stated above, CAA section 

172(c)(9) requires that the plan provide 

for the implementation of contingency 

measures to be undertaken if the area 

fails to attain the PM–10 standard by the 

applicable attainment date. The 

Maricopa area cannot attain the PM–10 

standard by the projected date in the 

189(d) plan because of monitored 

exceedances of the NAAQS in 2008.22

As a result, any emission reductions 

from contingency measures in the 

189(d) plan that are intended to take 

effect upon an EPA finding that the area 

failed to attain the standard cannot 

currently be determined to be surplus to 

the attainment demonstration as 

required by section 172(c)(9). Therefore 

we are proposing to disapprove the 

attainment contingency measures under 

CAA section 110(k)(3) as not meeting 

the requirements of section 172(c)(9). 

As also stated above, contingency 

measures are required to be 

implemented upon a failure of the 

Maricopa area to meet RFP. The 189(d) 

plan bases the emission reduction target 

for these measures on reductions 

between 2007 and 2010 calculated from 

the 2005 Periodic Inventory that we 

have determined to be inaccurate. See 

section III.A above. Thus the emission 

reduction target for the RFP contingency 

measures is necessarily also inaccurate. 

In addition to the inaccurate emission 

reduction target for the RFP contingency 

measures, many of the measures 

themselves do not meet the 

requirements of section 172(c)(9). These 

deficiencies generally fall into three 

categories: (1) Measures in the form of 

commitments in resolutions adopted by 

local or State governmental entities to 

take legislative or other substantial 

future action; (2) commitments in such 

resolutions for which implementation is 

conditioned on good faith efforts and 

funding availability and are therefore 

unenforceable; and (3) measures for 

which no basis is provided for the 

emission reductions claimed. While we 

illustrate these individual deficiencies 

below by reference to one or more of the 

189(d) plan’s designated contingency 

measures, it is important to note that 

many of the measures are deficient for 

multiple reasons. 

1. Some of the commitments by local 

governments or State agencies to 

implement measures that are intended 

to achieve the required emission 

reductions in 2008, 2009 and 2010 do 

not meet the requirement of section 

172(c)(9) that such measures are to take 

effect without further regulatory or 

legislative action. 

For example, Measure #19 is intended 

to reduce off-road vehicle use in areas 

with high off-road vehicle activity. For 

this measure, the 189(d) plan assigns 

emission reduction credit to the 

requirement in ARS 9–500.27.A, as 

submitted in the 189(d) plan, that cities 

and towns in the Maricopa area adopt, 

implement and enforce ordinances no 

later than March 31, 2008 prohibiting 

the use of such vehicles on unpaved 

surfaces closed by the landowner. 

189(d) plan, p. 8–69; 189(d) plan TSD, 

p. IV–3. The 189(d) plan includes a 

number of resolutions adopted by cities 

and towns committing to adopt such 

ordinances to address the vehicle use 

prohibition in the statute. However, 

because the 189(d) plan was submitted 

at the end of 2007, the contingency 

measure, i.e., the vehicle use 

prohibition, could not be fully 

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23 In some cases, e.g., the City of Goodyear, 

ordinances implementing the commitments in 

resolutions were also submitted with the 189(d) 

plan. In others, however, e.g., the City of Apache 

Junction and the Town of Buckeye, the submitted 

resolutions include a schedule for the future 

adoption and implementation of ordinances. ADEQ 

forwarded these ordinances to EPA in 2008 as 

supplemental information, but not as SIP 

submittals. See footnote 1. This distinction is 

significant because here the ordinances are the 

ultimate regulatory vehicle. 

24While the 189(d) plan refers to a deadline in 

ARS 49–457.02 for the establishment of this 

program, that statutory provision, as submitted with 

the 189(d) plan, does not contain a deadline. 

25While EPA has approved the commitments 

with this language into the Arizona SIP in past plan 

actions as strengthening the SIP, we did not 

approve specific emission reduction credits for 

them. 

implemented throughout the Maricopa 

area without additional future 

legislative action on the part of a 

number of governmental entities.23

Furthermore, not only do some of the 

contingency measure commitments fail 

to meet the requirement of section 

172(c)(9) that such measures are to be 

implemented with minimal further 

action, but because they depend on 

future actions that may or may not 

occur, it is also impossible to accurately 

quantify emission reductions from them 

at the time of plan development and 

adoption. Thus it would not be possible 

to determine at the time of plan 

development and adoption whether in 

the aggregate the measures designated as 

contingency would meet or approximate 

the target of one year’s average 

increment of RFP. This is the case with 

Measure #19, mentioned above. For that 

measure, the 189(d) plan claims 

emission reduction credit assuming that 

all jurisdictions subject to the 2008 

statutory requirement will comply. 

189(d) plan TSD, p. IV–3. However, 

there is no way to determine at the time 

of the 189(d) plan adoption which, if 

any, of the multiple jurisdictions would 

in fact implement such requirements by 

the statutory deadline. 

Another example of this 

quantification issue is Measure #26 

regarding the paving or stabilization of 

existing public dirt roads and alleys. 

189(d) plan, pp. 6–103 and 8–72; 189(d) 

plan TSD, p. IV–9. This measure 

includes commitments in resolutions 

adopted by 11 cities and towns to pave 

roads from 2007 through 2010 and 

claims emission reduction credit 

assuming full compliance. See also 

Measure #5 which quantifies as a 

contingency measure a requirement in 

ARS 49–457.02 that ADEQ establish a 

dust-free development program by 

September 19, 2007.24 189(d) plan TSD, 

p. 8–69. However, a 2010 report 

prepared by MAG addressing the 2008 

implementation status of the 53 

measures in the 189(d) plan states that 

‘‘[t]his measure was not implemented 

because ADEQ delayed the certification 

program indefinitely due to budgetary 

constraints.’’ Letter from Lindy Bauer, 

MAG to Jared Blumenfeld, EPA, March 

9, 2010, enclosing ‘‘2008 

Implementation Status of Committed 

Measures in the MAG 2007 Five Percent 

Plan for PM–10 for the Maricopa County 

Nonattainment Areas,’’ February 2010, 

MAG (2008 Status Report), table 1, p. 4. 

See also Measure #24 which includes, 

among others, a commitment by the 

Arizona Department of Transportation 

(ADOT) to require in the contract 

awarded in January 2008 that 

contractors use PM–10 certified street 

sweepers on all State highways in the 

Maricopa area. 189(d) plan, p. 8–70; 

189(d) plan TSD, p. IV–5; ADOT 

‘‘Resolution to Implement Measures in 

the MAG 2007 Five Percent Plan for 

PM–10 for the Maricopa County 

Nonattainment Area.’’ 189(d) plan, 

chapter 10, ‘‘Commitments for 

Implementation,’’ volume two. The 

2008, 2009 and 2010 emission 

reductions claimed for Measure #24 

assume implementation of the ADOT 

component of the measure. However, 

the 2008 Status Report states that 

‘‘ADOT’s current contract * * * does 

not require the use of PM–10 certified 

street sweepers * * *.’’ 2008 Status 

Report, p. 15. 

2. In addition to the above issue 

regarding commitments to take future 

action, a number of the commitments 

quantified for credit in the 189(d) plan 

as contingency measures are in the form 

of city, town and county resolutions that 

specifically recognize that the funding 

or schedules for such actions may be 

modified depending on the availability 

of funding or other contingencies. These 

commitments are also qualified by the 

statement that the agency making the 

commitment ‘‘agrees to proceed with a 

good faith effort to implement the 

identified measures.’’ 25 See, e.g., 

Measure #1 regarding public education 

and outreach, 189(d) plan, pp. 6–2 

through 6–20 and related resolutions in 

chapter 10, ‘‘Commitments for 

Implementation,’’ volumes one and two. 

See also id., p. 8–67. See also Measure 

#26 regarding the paving or stabilization 

of existing public dirt roads and alleys, 

id., pp. 6–103 and 8–72; 189(d) plan 

TSD, p. IV–7. 

The language in the above 

commitments regarding good faith 

efforts and funding availability makes 

the measures that are intended to 

achieve the required emission 

reductions virtually impossible to 

enforce. Section 110(a)(2) of the Act 

requires that SIPs include ‘‘enforceable 

emission limitations and other control 

measures’’ and ‘‘a program to provide for 

the enforcement of the measures’’ in the 

plan. As we have explained, ‘‘[m]easures 

are enforceable when they are duly 

adopted, and specify clear, 

unambiguous, and measurable 

requirements. Court decisions made 

clear that regulations must be 

enforceable in practice. A regulatory 

limit is not enforceable if, for example, 

it is impractical to determine 

compliance with the published limit.’’ 

General Preamble at 13568. In the case 

of most of the contingency measure 

commitments in the 189(d) plan, the 

implementation of the underlying 

measure cannot be ensured because the 

entity making the commitment can 

avoid having to implement it by 

asserting that it made good faith efforts, 

but failed to do so and/or that 

implementation did not occur due to 

insufficient funds. 

3. The 189(d) plan provides no 

methodology or support for the PM–10 

emission reductions credited to a 

number of the contingency measures. 

For example, the group of Measures #14, 

#15 and #17 designated in the plan as 

‘‘multiple’’ is intended to reduce 

trackout onto paved roads. 189(d) plan, 

p. 8–74. The 189(d) plan TSD, p. IV–13, 

states that ‘‘[t]he reduction in trackout 

emissions in the PM–10 nonattainment 

area due to the impact of these three 

committed measures is expected to be at 

least 15 percent in 2008–2010’’ and 

credits these measures with the 

following emission reductions: 1256.9 

tpy in 2008, 1273.4 tpy in 2009 and 

1270 tpy in 2010. No information is 

provided in the 189(d) plan regarding 

how the 15 percent was determined. 

Furthermore, the reductions from each 

measure are not disaggregated so it is 

impossible to determine the source of 

the claimed emission reductions or how 

they were calculated for each measure. 

Similarly, for Measure #1, the plan 

identifies annual emission reductions 

from seven source categories resulting 

from public education and outreach in 

various local jurisdictions but does not 

explain how these reductions were 

calculated. 189(d) plan TSD, p. IV–1. 

See also Measure #5 which provides 

annual emission reduction credits 

without any supporting information. 

The 189(d) plan TSD merely states: 

‘‘[d]ue to the implementation of this 

program [certification program for dustfree developments to serve as an 

industry standard], the construction 

emissions are expected to decline by 

0.10% in 2008–2010.’’ 189(d) plan TSD, 

p. IV–2. 

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54818 Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 

For the reasons discussed above we 

are proposing to disapprove under CAA 

section 110(k)(3) the contingency 

measures in the 189(d) plan as not 

meeting the requirements of section 

172(c)(9). 

G. Transportation Conformity and 

Motor Vehicle Emissions Budgets 

Transportation conformity is required 

by CAA section 176(c). Our conformity 

rule (40 CFR part 93, subpart A) requires 

that transportation plans, programs, and 

projects conform to state air quality 

implementation plans and establishes 

the criteria and procedures for 

determining whether or not they do so. 

Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the NAAQS or the 

timely achievement of interim 

milestones. 

The 189(d) plan specifies the 

maximum transportation-related PM–10 

emissions allowed in the proposed 

attainment year, 2010, i.e., the MVEB. 

189(d) plan, p. 8–75. This budget 

includes emissions from road 

construction, vehicle exhaust, tire and 

brake wear, dust generated from 

unpaved roads and re-entrained dust 

from vehicles traveling on paved roads. 

This budget is based on the 2010 

emissions inventory that was projected 

from the 2005 Periodic Inventory and 

reflects emission reductions that the 

plan expects will result from the control 

measures. The budget is consistent with 

the attainment, 5% and RFP 

demonstrations in the 189(d) plan. 

However, as explained elsewhere in this 

proposed rule, the area cannot attain by 

the end of 2010 as projected in the plan 

and we are, in addition to the 

attainment demonstration, proposing to 

disapprove the plan’s emissions 

inventories, 5% and RFP 

demonstrations. Therefore we must also 

propose to disapprove the MVEB. 

In order for us to find the emission 

level or ‘‘budget’’ in the 189(d) plan 

adequate and subsequently approvable, 

the plan must meet the conformity 

adequacy provisions of 40 CFR 

93.118(e)(4) and (5). For more 

information on the transportation 

conformity requirement and applicable 

policies on MVEBs, please visit our 

transportation conformity Web site at: 

http://www.epa.gov/otaq/ 

stateresources/transconf/index.htm. The 

189(d) plan includes the PM–10 MVEB 

shown in table 6 below. 

TABLE 6—189(d) PLAN, MOTOR

VEHICLE EMISSIONS BUDGET

(Annual-average emissions in metric tons per 

day (mtpd)) 

Year MVEB 

2010 ................................................ 103.3 

On March 13, 2008, we announced 

receipt of the 189(d) plan on the Internet 

and requested public comment on the 

adequacy of the motor vehicle emissions 

budget by April 14, 2008. We did not 

receive any comments during the 

comment period. During that time we 

reviewed the MVEB and preliminarily 

determined that it met the adequacy 

criteria in 40 CFR 93.118(e)(4) and (5). 

We sent a letter to ADEQ and MAG on 

May 30, 2008 stating that the 2010 

motor vehicle PM–10 emissions budget 

for the Maricopa area in the submitted 

189(d) plan was adequate. Our finding 

was published in the Federal Register 

on June 16, 2008 (73 FR 34013), 

effective on July 1, 2008. 

As explained in the June 16, 2008 

Federal Register notice, an adequacy 

review is separate from EPA’s 

completeness and full plan review, and 

should not be used to prejudge EPA’s 

ultimate approval action for the SIP. 

Even if we find a budget adequate, the 

SIP and the associated budget can later 

be disapproved for reasons beyond 

those in 40 CFR 93.118(e). 

Because we are proposing to 

disapprove the emission inventories, 

and the attainment 5% and RFP 

demonstrations, we are also now 

proposing to disapprove the 189(d) 

plan’s 2010 PM–10 MVEB. Under 40 

CFR 93.118(e)(4)(iv), we review a 

submitted plan to determine whether 

the MVEB, when considered together 

with all other emissions sources, are 

consistent with applicable requirements 

for RFP, attainment, or maintenance 

(whichever is relevant to a given SIP 

submission). Because we have now 

concluded that the area cannot attain by 

2010 as projected in the 189(d) plan, the 

MVEB cannot be consistent with the 

attainment requirement. In addition, 

because we are proposing to disapprove 

the 5% and RFP demonstrations, the 

MVEB is not consistent with the 

applicable requirements to show 5% 

annual reductions and RFP. Given the 

overemphasis in the plan on reducing 

emissions from construction activities, 

it is quite possible that more reductions 

in onroad emissions will be required to 

meet the applicable requirements. 

Consequently, we find that the plan and 

related budget do not meet the 

requirements for adequacy and 

approval. 

The consequences of plan disapproval 

on transportation conformity are 

explained in 40 CFR 93.120. First, if a 

plan is disapproved by EPA, a 

conformity ‘‘freeze’’ takes effect once the 

action becomes effective (usually 30 

days after publication of the final action 

in the Federal Register). A conformity 

freeze means that only projects in the 

first four years of the most recent 

conforming Regional Transportation 

Plan (RTP) and Transportation 

Improvement Program (TIP) can 

proceed. See 40 CFR 93.120(a). During 

a freeze, no new RTPs, TIPs or RTP/TIP 

amendments can be found to conform. 

The conformity status of these plans 

would then lapse on the date that 

highway sanctions as a result of the 

disapproval are imposed on the 

nonattainment area under section 

179(b)(1) of the CAA. See 40 CFR 

93.120(a)(1). Generally, highway 

sanctions are triggered 24 months after 

the effective date of the disapproval of 

a required SIP revision for a 

nonattainment area. During a 

conformity lapse, no new transportation 

plans, programs, or projects may be 

found to conform until another SIP 

revision fulfilling the same CAA 

requirements is submitted and 

conformity of this submission is 

determined. 

If EPA were proposing to disapprove 

the plan for administrative reasons 

unrelated to the attainment, 5% and 

RFP demonstrations, EPA could issue 

the disapproval with a protective 

finding. See 40 CFR 93.120(a)(3). This 

would avoid the conformity freeze. 

Because this is not the case, EPA does 

not believe that a protective finding 

should be proposed in connection with 

our proposed disapproval action on the 

189(d) plan. Therefore, a conformity 

freeze will be in place upon the effective 

date of any final disapproval of the 

189(d) plan. 

H. Adequate Legal Authority and 

Resources 

Section 110(a)(2)(E)(i) of the Clean Air 

Act requires that implementation plans 

provide necessary assurances that the 

state (or the general purpose local 

government) will have adequate 

personnel, funding and authority under 

state law. Requirements for legal 

authority are further defined in 40 CFR 

part 51, subpart L (section 51.230–232) 

and for resources in 40 CFR 51.280. 

States and responsible local agencies 

must demonstrate that they have the 

legal authority to adopt and enforce 

provisions of the SIP and to obtain 

information necessary to determine 

compliance. SIPs must also describe the 

resources that are available or will be 

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Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 54819 

26Letter from Wesley Bolin, Governor of Arizona, 

to Douglas M. Costle, Administrator of EPA, 

February 7, 1978, found in the 189(d) plan, chapter 

10, ’’Commitments for Implementation,’’ Volume 

one, ‘‘Maricopa Association of Governments.’’ 

available to the state and local agencies 

to carry out the plan, both at the time 

of submittal and during the 5-year 

period following submittal. These 

requirements are addressed in chapter 

10 of the 189(d) plan. We evaluate these 

requirements for the plan in general and 

for those measures for which we are 

proposing approval or limited approval. 

MAG derives its authority to develop 

and adopt the 189(d) plan and other 

nonattainment area plans from ARS 49– 

406 and from a February 7, 1978 letter 

from the Governor of Arizona 26

designating MAG as responsible for 

those tasks. ADEQ is authorized to 

adopt and submit the 189(d) plan by 

ARS 49–404 and ARS 49–406. 

We are proposing for full approval 

statutes that have been adopted by the 

Arizona legislature, signed by the 

Governor and incorporated into the 

Arizona Revised Statutes. We are also 

proposing a limited approval of 

regulations authorized and mandated by 

Arizona statute. See section III.B above. 

Because the requirements in these 

statutes and regulations are directly 

imposed by State law, no further 

demonstration of legal authority to 

adopt emission standards and 

limitations is needed under CAA 

section 110(a)(2)(E)(i) and 40 CFR part 

51, subpart L. 

Section 51.230 of 40 CFR also requires 

that the State have the authority to 

‘‘[e]nforce applicable laws, regulations, 

and standards, and seek injunctive 

relief.’’ ARS 49–462, 49–463 and 49–464 

provide the general authorities adequate 

to meet these requirements. We note 

that EPA, in undertaking enforcement 

actions under CAA section 113, is not 

constrained by provisions it approves 

into SIPs that circumscribe the 

enforcement authorities available to 

state and local governments. 

Several of the State statutory 

provisions proposed for full approval 

and the regulations proposed for limited 

approval are direct mandates to the 

regulated community and require ADEQ 

to implement and enforce programs in 

whole or in part. See, e.g., ARS 49–457, 

49–457.01, 49–457.03 and 49–457.04. 

There is no description in the 189(d) 

plan of the resources available to the 

State to implement and enforce these 

statutory and regulatory provisions. 

Thus it is not possible for EPA to 

ascertain whether the State has adequate 

personnel and funding under CAA 

section 110(a)(2)(E)(i) and EPA’s related 

regulations to carry out these State 

statutes. 

Many of the Arizona statutory 

provisions proposed for approval are 

directives to local governmental entities 

to take action. For example, ARS 49– 

474.05 requires specified local 

jurisdictions to develop extensive dust 

control programs. Developing such 

programs will require resources and 

legal authority at the local level. 

However, we are not proposing approval 

of such programs at this time. This 

action is merely proposing approval of 

the statutory mandate to develop the 

program. Therefore, for these statutory 

provisions, a demonstration that 

adequate authority and resources are 

available is not required. 

Section 110(a)(2)(E)(iii) requires SIPs 

to include necessary assurances that 

where a state has relied on a local or 

regional government, agency or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provision. 

We have previously found that Arizona 

law provides such assurances. 60 FR 

18010, 18019 (April 10, 1995). 

For the reasons discussed above, we 

propose to find that the requirements of 

section 110(a)(2)(E) and related 

regulations have been met with respect 

to legal authority. However, we propose 

to find that the 189(d) plan does not 

demonstrate that ADEQ has adequate 

personnel and funding to implement the 

State statutes and regulations proposed 

for full or limited approval for which 

the State has implementation and 

enforcement responsibility and 

authority. 

IV. Summary of Proposed Actions 

EPA is proposing to approve in part 

and disapprove in part, the 189(d) plan 

for the Maricopa County (Phoenix) PM– 

10 nonattainment area as follows: 

A. EPA is proposing to disapprove 

pursuant to CAA section 110(k)(3) the 

following elements of the ‘‘MAG 2007 

Five Percent Plan for PM–10 for the 

Maricopa County Nonattainment Area’’: 

(1) The 2005 baseline emissions 

inventory and the projected emission 

inventories as not meeting the 

requirements of CAA sections 172(c)(3); 

(2) The attainment demonstration as 

not meeting the requirements of CAA 

sections 189(d) and 179(d)(3); 

(3) The 5% demonstration as not 

meeting the requirements of CAA 

sections 189(d); 

(4) The reasonable further progress 

and milestone demonstrations as not 

meeting the requirements of CAA 

section 189(c); 

(5) The contingency measures as not 

meeting the requirements of CAA 

sections 172(c)(9); and 

(6) The 2010 MVEB as not meeting the 

requirements of CAA section 176(c) and 

40 CFR 93.118(e)(4). 

B. EPA is proposing a limited 

approval and disapproval of AAC R18– 

2–610 and AAC R18–2–611 as 

submitted in the ‘‘MAG 2007 Five 

Percent Plan for PM–10 for the 

Maricopa County Nonattainment Area’’ 

pursuant to CAA section 110(k)(3). EPA 

is proposing a limited approval because 

these regulations strengthen the SIP and 

a limited disapproval because they do 

not fully meet the requirements of CAA 

sections 110(a) and 189(b)(1)(B) for 

enforceable BACM for agricultural 

sources of PM–10 in the Maricopa area. 

C. EPA is proposing to approve 

pursuant to CAA section 110(k)(3) the 

following sections of the Arizona 

Revised Statutes as submitted in the 

‘‘MAG 2007 Five Percent Plan for PM– 

10 for the Maricopa County 

Nonattainment Area’’ as strengthening 

the SIP: ARS 9–500.04, ARS 9–500.27, 

ARS 11–877, ARS 28–6705, ARS 49– 

457, ARS 49–457.01, ARS 49–457.02, 

ARS 49–457.03, ARS 49–457.04, ARS 

49–474.01, ARS 49–474.05, and ARS 

49–501. 

D. EPA is proposing to approve 

pursuant to CAA section 110(k)(3) the 

‘‘Agricultural Best Management 

Practices Guidance Booklet and Pocket 

Guide’’ as submitted on May 6, 2010. 

E. Effect of Finalizing the Proposed 

Disapproval Actions 

If we finalize disapprovals of the 

emissions inventories, attainment 

demonstration, RFP and milestone 

demonstrations, 5% demonstration and 

contingency measures, the offset 

sanction in CAA section 179(b)(2) will 

be applied in the Maricopa area 18 

months after the effective date of any 

final disapproval. The highway funding 

sanctions in CAA section 179(b)(1) will 

apply in the area 6 months after the 

offset sanction is imposed. Neither 

sanction will be imposed if Arizona 

submits and we approve prior to the 

implementation of the sanctions SIP 

revisions meeting the relevant 

requirements of the CAA. See 40 CFR 

52.31 which sets forth in detail the 

sanctions consequences of a final 

disapproval. 

If EPA takes final action on the 189(d) 

plan as proposed, Arizona will need to 

develop and submit a revised plan for 

the Maricopa area that again addresses 

applicable CAA requirements, including 

section 189(d). While EPA is proposing 

to approve many of the measures relied 

on in the submitted 189(d) plan, 

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54820 Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 

additional emission reductions will be 

needed. In pursuing such reductions, 

we expect Arizona to investigate all 

potential additional controls for source 

categories in the Maricopa area that 

contribute to PM–10 exceedances. This 

investigation should include, but not be 

limited to, analysis of BACM controls in 

other geographic areas. We also note 

that CAA section 179(d)(2) provides 

EPA the authority to prescribe specific 

additional controls for areas, such as the 

Maricopa area, that have failed to attain 

the NAAQS. 

If we finalize a limited disapproval of 

AAC R18–2–610 and 611, the offset 

sanction in CAA section 179(b)(2) will 

be applied in the Maricopa area 18 

months after the effective date of the 

final limited disapproval. The highway 

funding sanctions in CAA section 

179(b)(1) will apply in the area 6 

months after the offset sanction is 

imposed. Neither sanction will be 

imposed if Arizona submits and we 

approve prior to the implementation of 

the sanctions a measure for the control 

of agricultural sources meeting the 

requirements of CAA sections 110(a) 

and 189(b)(1)(B). 

In addition to the sanctions, CAA 

section 110(c)(1) provides that EPA 

must promulgate a Federal 

implementation plan addressing any 

full or limited disapproved elements of 

the plan, as set forth above, two years 

after the effective date of a disapproval 

should we not be able to approve 

replacements submitted by the State. 

Finally, if we take final action 

disapproving the 189(d) plan, a 

conformity freeze takes effect once the 

action becomes effective (usually 30 

days after publication of the final action 

in the Federal Register). A conformity 

freeze means that only projects in the 

first four years of the most recent RTP 

and TIP can proceed. During a freeze, no 

new RTPs, TIPs or RTP/TIP 

amendments can be found to conform. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals or 

disapprovals under section 110 and 

subchapter I, part D of the Clean Air Act 

do not create any new requirements but 

simply approve or disapprove 

requirements that the State is already 

imposing. Therefore, because the 

proposed Federal SIP partial approval/ 

partial disapproval and limited 

approval/limited disapproval actions do 

not create any new requirements, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of state action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

U.S.C. 7410(a)(2). 

D. Unfunded Mandates Reform Act 

Under sections 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), signed into 

law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a Federal mandate that 

may result in estimated costs to State, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that the partial 

approval/partial disapproval and 

limited approval/limited disapproval 

actions proposed do not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This Federal action 

proposes to approve and disapprove 

pre-existing requirements under State or 

local law, and imposes no new 

requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999) revokes and replaces 

Executive Orders 12612 (Federalism) 

and 12875 (Enhancing the 

Intergovernmental Partnership). 

Executive Order 13132 requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, EPA may not issue a 

regulation that has federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. EPA also may not issue a 

regulation that has federalism 

implications and that preempts State 

law unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

regulation. 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely proposes to approve or 

disapprove a State rule implementing a 

federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. Thus, the requirements of 

section 6 of the Executive Order do not 

apply to this rule. 

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Federal Register / Vol. 75, No. 174 / Thursday, September 9, 2010 / Proposed Rules 54821 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

Thus, Executive Order 13175 does not 

apply to this rule. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This rule is not subject to 

Executive Order 13045, because it 

approves a state rule implementing a 

Federal standard. 

H. Executive Order 12898, Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’’ (February 16, 

1994) establishes federal executive 

policy on environmental justice. Its 

main provision directs federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. The 

Executive Order has informed the 

development and implementation of 

EPA’s environmental justice program 

and policies. Consistent with the 

Executive Order and the associated 

Presidential Memorandum, the 

Agency’s environmental justice policies 

promote environmental protection by 

focusing attention and Agency efforts on 

addressing the types of environmental 

harms and risks that are prevalent 

among minority, low-income and Tribal 

populations. 

This action will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or Tribal 

populations because the partial 

approval/partial disapproval and 

limited approval/limited disapproval 

actions proposed increase the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

I. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

J. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires Federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. To comply with NTTAA, 

EPA must consider and use ‘‘voluntary 

consensus standards’’ (VCS) if available 

and applicable when developing 

programs and policies unless doing so 

would be inconsistent with applicable 

law or otherwise impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

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

Dated: September 3, 2010. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2010–22616 Filed 9–8–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–1983–0002; FRL–9198–7] 

National Oil and Hazardous Substance 

Pollution Contingency Plan; National 

Priorities List; Intent for Partial 

Deletion of the Denver Radium 

Superfund Site 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region 8 is issuing a 

Notice of Intent to Delete each of the 11 

operable units, with the exception of 

groundwater contamination associated 

with Operable Unit 8, of the Denver 

Radium Superfund Site (Site), located in 

the City and County of Denver, 

Colorado, from the National Priorities 

List (NPL) and requests public 

comments on this proposed action. 

Groundwater associated with Operable 

Unit 8 will remain on the NPL. The 

NPL, promulgated pursuant to section 

105 of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) of 1980, as amended, is an 

Appendix of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP). The EPA and 

the State of Colorado, through the 

Colorado Department of Public Health 

and Environment, have determined that 

all appropriate response actions at these 

identified parcels under CERCLA, other 

than operations and maintenance and 

five-year reviews, have been completed. 

However, this deletion does not 

preclude future actions under 

Superfund. 

This partial deletion pertains to each 

of the 11 operable units of the Denver 

Radium Superfund Site. Groundwater 

contamination associated with Operable 

Unit 8 will remain on the NPL and is 

not being considered for deletion at this 

time. 

DATES: Comments must be received by 

October 12, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID no. EPA–HQ– 

SFUND–1983–0002, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

on-line instructions for submitting 

comments. 

• E-mail: dalton.john@epa.gov. 

• Fax: 303–312–7110 (Attention: John 

Dalton, Public Affairs and Involvement). 

• Mail: John Dalton, Public Affairs 

and Involvement (8OCPI), U.S. EPA 

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