41998 Federal Register / Vol. 59, No. 157 / Tuesday. August 16, 1994 / Proposed Rules 

A review of the environmental effect 

of the proposed measurement rule 

changes concludes that the proposed 

change will not have a significant effect 

on the quality of the human 

environment. An environmental impact 

statement is not required under the 

National Environmental Policy Act of 

1969. 

Finally, the Administrator of the 

Panama Canal Commission certifies that 

these proposed regulations meet the 

applicable standards provided in 

sections 2(a] and 2(b][2) of Executive 

Order No. 12778. 

List of Subjects in 35 Part 103 

Advance reservations. Booking 

system. Order of transit, Panama Canal. 

Vessels. 

Accordingly, for the reasons set forth 

above, it is proposed that 35 CFR part 

103 be amended as follows: 

PART 103-GENERAL PROVISIONS 

GOVERNING VESSELS 

1. The authority citation for part 103 

is revised to read as follows: 

Authority: 22 U.S.C. 3791. E.O. 12215,45 

FR 36043.3 CFR. 1981 Comp.. p. 257. 

2. Paragraph (e) of 5 103.8 is revised 

to read as follows: 

g 103.8 Preference In the transit schedule; 

order of transltlng vessels. ttttt 

[e) Booking Fees. (1) For vessels 

measured in accordance with 

5 135.13[a) of this chapter. the fee for 

booking shall be $0.26 per PClUMS Net 

Ton. 

[2) For vessels subject to the 

transitional relief measures of 5 135.31 

of this chapter and measured in 

accordance with 5 135.13[b) of this 

chapter, the fee for booking shall be 

$0.23 per Panama Canal Gross Ton as 

specified on the last certificate issued by 

the Panama Canal Commission between 

March 23,1976 and September 30. 

1994. inclusive. 

(3) The minimum booking fee for any 

vessel is $1,500. tttt. 

(Existing collections of information are 

approved under Office of Management 

and Budget (OMB) control number 

3207-0001. Modifications are being 

submitted to OMB for approval.) 

Dated: August 10. 1994. 

Cilberto Cuardia F., 

Administmtor, Panama Cnnnl Commission. 

IFR Doc. 94-20049 Filed 8-15-94; 8:45 am1 

BILLING CODE X4044-P 

ENVIRONMENTAL PROTECTION reasonable fee may be charged for 

AGENCY copying. 

40 CFR Part 52 

[FRLd052-2] 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

state lrnplernentatlon plans for sedous 11. Designations and Classifications 

PM-10 Nonattalnrnent Areas, and A. Designations B. Classifications Attainment Date Waivers for Ph4-10 C. Reclassifications 

Nonattalnrnent Areas Generally; D. Appendix K and Waivers 

Addendum to the General Preamble for 111. International Border Arwas 

the lmplementatlon of Tltle I of the A. Statutory Requirement 

B. Policy 'Iean *Ir Act Amendments Of lggo IV. Serious Ama SIP Requirements 

AGENCY: Environmental Protection V. Waivers for Certain PM-10 Nonattainment 

Agency (EPA). 

ACTION: Addendum to General Preamble 

for future proposed rulemakings. 

SUMMARY: This addendum to the 

General Preamble for the 

Implementation of Title I of the Clean 

Areas 

A. Historical Perspectives B. Waiver Provisions 

C. Application of Waiver Provisions 

D. Waiver Policy Description VI. Best Available Control Measures (BACM) 

A. Requirwment for BACM 

B. EPA's Historical Interomtation of 

~i; ActAmendments of 1990 Control Technology ~~rminolo~~ 

principallv describes EPA's preliminary C. BACM for Serious PM-10 

iiewsbn how the Agency sgoould Nonattainment Areas 

interpret various provisions of title I D. Procedures for Determining BACM 

E. Selection of BACM for Area Sources with regard to requirements for PM-10 F. Selection of Best Available Control (particles with an aerodynamic diameter Technolonv (BAGTI for Point Sources 

less than or equal to a nominal 10 VII. ~ontinne&'~eas;res 

micrometers) serious nonattainment VIII. ~uant~tati;e Milestones and Reasonable 

area State implementation plans (SIP'S). Further Progress 

This document also addresses ~olicv A. Generol Discussion - - 

and guidance on attainment dab 

' 

waivers potentially applicable to all 

areas that have been designated 

nonattainment for PM-10, waivers of 

certain requirements applicable to PM10 serious nonattainment areas, and 

requirements for international border 

areas in PM-10 nonattainment areas. 

Although the guidance includes various 

statements that States must take certain 

actions, these stntements are made 

pursuant to EPA's preliminary 

interpretations, and thus do not bind 

States and the public as a matter of law. 

This addendum is an advance notice of 

how EPA generally intends to take 

action on SIP submissions and to 

interpret various PM-10 related title I 

provisions. 

FOR FURTHER INFORMATION CON7 ACT: 

Charlene E. Spells, Air Quality 

Management Division. Mail Drop 15. 

Office of Air Quality Planning and 

Standards, U.S. EPA, Research Triangle 

Park. North Carolina 27711, (919) 541- 

5255. 

ADDRESSES: References cited herein are 

available from the Public Docket No. A92-23. The docket is located at the Air 

B. Reasonable Further Progress 

C. Quantitative Milestones 

1X. Other Requirements 

A. Executive Order 12866 

B. Regulatory Flexibility Act 

In accordance with 1 CFR S.Q(c), this 

document is published in the proposed 

rules category. 

I. Introduction 

Issues are discussed in this document 

regarding policy and guidance that will 

be applicable to areas that have been 

designated nonattainment for PM-10 

and reclassified as serious areas. This 

document also discusses issues 

regarding policy and guidance on 

attainment date waivers potentiallv 

applicable to all areas that have been 

designated nonattainment for PM-10, as 

well as policy and guidance or. waivers 

of certain other requirements applicable 

to PM-10 serious nonattainment areas, 

and req~ire~nents for international 

border areas in PM-10 nonattainment 

areas. 

Initially, all areas designated as 

nonattainment for PM-10 are classified 

as moderate areas (see section 188[a) of 

the Clean Air Act (Act)).' Subsequently. 

and Radiation Docket and Information I The 1990 Amendments lo the Clean Air Acl Room M-1500* Waterside mada significant changes to the air quality planning Mail Code 6102. 401 M Street SW.. roquiremcnts lor areas that do not meet (or that 

Washington, DC 20460, The docket may significnntly contribute to ambient air quality in a 

be inspected from 8:30 a.m, to 12 noon nearby area that does not moetl the PM-I0 national 

ambient air qu~lity standards (see Pub. L. No. 101- and from 1:30 p.m. to 3:30 p.m. on 549. 104 Stnt. 239' ;. References herein are to the 

weekdays, except for legal holidays. A Clenh Air Act, as nnlendod. 42 U.6.C. 7401. rt sq. , 

VerOate OPAUG-94 13:39 Aug 15.1994 Jkl15025 7 POOOMX) Frm OOOOe Fm(4702 SM 4702 E:\FRFM\Pl6AU2.PTI pl6ptl 

- 
Federal Register 1 Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 41999 

in accordance with section 188h) of the 11. DesinnaC~ns and Classifications months followinn the attainment date 

Act, "The Administrator may iciassify 

as a serious PM-10 nonattainment area 

any area that the Administrator 

determines cannot practicably attain the 

national ambient air quality standard for 

PM-10 by the attainment date (as 

prescribed in subsection (c)) for 

moderate areas" or any area that fails to 

timely attain. The EPA took final action 

on January 8. 1993 to reclassify 5 

moderate areas that were initially 

designated as nonattainment for PM-10 

upon enactment of the 1990 

Amnndments (see 58 FR 3334). The EPA 

is considering reclassifying additional 

aroas from moderate to serious. 

This guidance document is being 

publishod as an addendum to the 

General Prenmble for the 

lmplementntion of Title I of the Clean 

Air Act Amendments of 1990 (General 

Proamblo) published April 16. 1992 (57 

FR 13498).2 Among othor things, this 

PM-10 nonattainment area guidance 

document describes EPA's preliminary 

views on how EPA should interpret 

various provisions of title I with regard 

to requirements for PM-10 sorious area 

SIP'S: Although the guidance includos 

various statements that States must take 

cortain actions, theso statements are 

made pursuant to EPA's preliminary 

interpretations, and thus do not bind the 

States and the public as a matter of law. 

Of course, the use of prescriptive 

languilgo is appropriate in thoso 

instancos whero tho policy is simply 

reitorating statutory mandatos which 

provide that Statos must tako certain 

aclions. 

Possiblo appronchos to implementing 

tho provisions in soction 1798 

applicnble to intornational border aroas. 

gonoral SIP roquiromonts of section 

172(c), tho spocific roquiromonts in 

subpart 4 of part D of titlo I in sorious 

PM-10 nonattainrnont aroas, the issuos 

involvod and tho means of resolving 

those issuos are discussod in the 

following sections. Tho topics discussed 

includo SIP roquiromonts such as 

provisions to assuro that bost available 

control moasuros (BACM) aro 

implomentod; waivors for aroas 

impactod by nonanthropogonic sourcos; 

troatmont of intornational border aroas; 

roquiromonts for quantitative 

niilostonos, roasonablo furthor progross 

(RFt') and contingency mcasuros. 

'A supplnrnnntal notico wns ~lut~lishnd at 57 FR 

18070. April 28. 1002. which provit1r.s cnrtnin 

nppnntlicns to tho April In. 1992 CmnnraI I'roarnble. 

S~~bsrqu~nt rnlornncna in this nntico lo the General 

Prnnnl!,lo aro inciuslvn or hoth dtrcunlnntn. 

4 

" 

A. Designations 

Section 107(d) of the Act provides 

generaily for the designation of areas of 

each State as attainment, nonattainment 

or unclassifiable for each pollutant for 

which there is a national ambient air 

quality standard (NAAQS). Certain areas 

meoung the qualifications of section 

107(d)(4)(B) of the Act were designated 

nonattainment for PM-10 by operation 

of law upon enactment of the 1990 

Amendments (initial PM-10 

nonattainment areas). A Federal 

Register notice announcing all of the 

areas designated nonattainment for PM10 at enactment and classified as 

moderate was published on March 15, 

1991 (56 FR 11101). A follow-up notice 

correcting some of these area 

designations was published August 8, 

1991 (56 FR 37654). The nonattainment 

areas wero form~lly codified in 40 CFR 

part 81. effective January 6, 1992 (56 FR 

56694, November 6,1991). All thoso 

areas of the country not designated 

nonattainment for PM-10 at enactment 

were designated unclassifiable (see 

section 107(d)(4](B)(iii) of the Act]. 

B. Classifications 

Once an area is designated 

nonattainmont, section 188 of the Act 

outlines the process for classification of 

the area and establishes the area's 

attainment date. In accordance with 

section 188(a), nll PM-10 nonattainment 

areas are initially classified as moderate 

by oporation of law upon their 

designation as nonattainment. 

1. Cenoral Conditions 

A moderate ama can subsequently be 

reclassified as a serious nonattainment 

area under two general conditions. First, 

EPA has general discretion under 

soction 188(bJ(1.) to reclassify a 

moderate area as a serious area at any 

time the Administrator determines the 

area cannot practicably attain the 

NAAQS by the statutory attainment date 

for moderate aroas.3 

Second, under section 188(b)(2) a 

moderate area is reclassified as serious 

by oporation of IJW aftor the statutory 

attainmont date has passod if the 

Administrator finds that the area has not 

att~inod the NAAQS. The EPA must 

publish a Federal Register notice 

idontifying the aroas that have failed to 

attain and were reclassified, within 6 

'The EPA'r Interpretation of the roclassificntion 

provisions in sectlon 188(b)[1) is discussed in dntail 

In soction III.C.l(b) o! tho Gonerel Prenrnble (57 FR 

at 13537-38). s 

(see section 188G)(2)(~)). 

2. Reclassification of Initial PM-10 

Nonattainment Areas 

Section 188[b](l)(A) provides an 

accelerated schedulo by which EPA is to 

reclassify appropriate initial PM-10 

nonattainment areas. The EPA proposed 

on November 21,1991 (56 FR 58656) to 

reclassify 14 of tho 70 initial moderate 

areas as serious. The 14 areas EPA 

roposed to reclassify were identified 

rargely based on the magnitude and 

frequency of ambient PM-10 

measurements above the 24-hour 

NAAQS of 150 micrograms per cubic 

meter (&my during calendar years 

1988-1990. The EPA took final action 

on January 8,1993 (58 FR 3334) to 

reclassify 5 of the 14 areas. The final 

decision to reclassify the 5 areas was 

based on the criteria utilized in the 

proposal, comments received in 

response to the proposal and on EPA's 

preliminary review of the SIP'S for the 

areas. 

In the future, EPA anticipates that, 

generally, any decision to reclassify an 

initial PM-10 nonattainment area before 

the attainmont date will be based on 

specific facts or circumstances 

demonstrating that the NAAQS cannot 

practicably be attained in the arcs by 

December 31,1994 (the statutory 

attainment date specified in section 

188(c)(l) for initial PM-10 

nonattainment areas). 

3. Reclassification of Future PM-10 

Nonattainment Areas 

Section 188(b)(l)(B) provides a 

timeframe within which EPA is to 

roclassify appropriate areas designated 

nonattainment for PM-10 subseauent to 

enactment of the 1990 ~mendmints. 

Appropriate areas are to be reclassified 

as serious within 18 months after the 

required date for the State's submission 

of a moderato area PM-10 SIP.' The 

statute roquires that these moderate area 

PM-10 SIP'S be submitted within 18 

months after the aroa is designated 

nonattainment (sue soction 189(a)(2)(B)). 

Taking those provisions together, the 

statute thus roquires that EPA reclassify 

appropriate PM-10 modorate areas 

designatod nonattainment after 1990 as 

sorious within 3 years of such 

designation. 

Bocause the moderate area SIP'S are 

due bofore this reclassification deadline, 

EPA anticipatos that any determination 

that such areas should be reclassified 

will be based upon facts contained in 

'This directive does not restrict EPA's general 

authority. bur simply specifies that it is to ba 

oxarcisod, 0s appropriate, in accordance with 

cnrtain da~oa. 
42000 Federal Register I Vol. 59, No. 157 I Tuesday, August 16, 1994 I Proposed Rules 

the moderate area SIP demonstrating Appendix K and accompanying 

that the NAAQS cannot practicably be guidance (both preceding the 1990 

attainod by the statutory deadline. The Amendments to the Act] provide in part 

EPA may also consider mclassifying that measured exceedances of the PMmoderate areas for which a SIP has not 10 NAAQS which are believed to be 

boen submitted whenever it bocomes influenced by uncontrollable events 

ap amnt [e.g., bocause of an extensive caused by natural sources of particulate 

de f ay in submitting the SIP] that an ama matter or by events that are not expocted 

cannot practicably attain the standards to recur at a given location are flagged 

by the applicable attainment date. The and excluded from decisions as to 

EPA may also dotermine that an aroa whother or not the oroa should be 

cannot practicably attain the standards designated nonattainment.8 Therefore, if 

by the applicable dato when tho Stato it is established that exceodances are 

submits an incomploto or othorwise caused by natural sources. a State may 

inadequato SIP for tho aroa he., a SIP bo permitted to avoid designating the 

which would not assure timoly aroa as nonattainment. even though the 

attainnlontl and the Stato does not act exceodances are expected to rocur. 

oxpoditiously to corroct such The savings prov~sion of section 193 

doficioncios. of the amendod Act provides, among The EPA does not beliove that othor things, that reeulations and 

gonorally reclassifying ~nodornto amas as guidance promulgated or issued by the 

sorious mwards amas which delay Administrator prior to enactment of the 

dovolopmont and implomentation of 1990 Amendments are to remain in 

PM-10 coritrol moasurus. Rather, EPA effect according to thoir terms exccpt to 

boliovos its policy croatos an incentive tho extant that they are inconsistent 

for tho timoly submittal and offoctivo with any provision of the amended Act. 

imp~omontation of motiornto aroa SIP Section 188(f) of the amended Act 

roquimmonts and focilitnt0~ tho PM-10 provides EpA with the discmtionary 

attainrnont objoctivo. For oxamplo, if an authority to waive a specific date of 

aroa that fails to submit a timoly attainment for a PM-10 nonattainment 

~nodorato aroa SIP is roclassifiod, this area whore it is dotormined that 

dons not o\)vioto tho roquiromont that nonanthropogenic sources contribute 

tho aroa submit nnd implomont tho significantly to the violation of the 

modorato aroa SIP roquiron~ents. standard in tho area, and to waive 

Accordingly, in addition to mclassifying certain nonattainmont area SIP 

such orous, EPA woultl also dotormino Mquimmonts whore the ~d~i~i~~~~~

that tho Stato had fnilod to submit a dotermines that anthropogonic sources 

PM-10 SIP and tho arcs could bo subioct ofPM-10 do not contribute significantly to sanctions undor soctions 110(m) and to tho oftho standard in the 179 for its tloloy. As providod undor ,roam Those provisions as a soction 178(a) of tho P.ct. States fundamontal promise that areas contnininp nrons for which EPA has oxpor~occing ,,iolations of tho NAAQS nindo such doturminntions havo up to 18 duo to nonanthropogonic sources to months froni EI'A's dotormination to bo dosignatell as nonattainmenl. Ifamas su\)nlit n comploto plnn or plan rovision wore pormittod to avoid baing boforo EI'A is roquirerl to imposo oithor designated as nonattainmont because 

tho "Inding snnction Or tho their violations are cnusod in or mq~iiromont to providn two-to-ono now part by uncontrollable natural ovonts, sourco offsots doscril)od in suction thon this statutory provision would 179(1)1. If t liu (loficioncy has not t)oen have to bo road as having no logal offoct corrected G months nftor tho first or significanco. Howovor, this would snnction applios, thon tho socond violato cnnons of statutory construction, snnction must n ply.s Tho EI'A's which diroct that statutory languago not dotormination ago trigporn a bo tmutod as moro surplusago. roquiromont for EI'A to i~tiposo a Consoquontly, although appondix K Fodoml implomantation plan undor appoars to be prosorved in part by snction 110(c)(l) of tho Act. In soction 193, the provision pormitting conjunction with tho possiblo tho twatmont of "uncontrollable evonts iniposition of sanclions. EPA may issuo by natural sources- as 

a tintorminntion to rnclnssify tho area to oxccptional ovonts, and thorofore soric~us. oxcludablo from nonattainmont 

D. A~aandix K and LVair~ars decisions. is inconsistont with the . . Apy)onclix K to 40 CFR part 50 provisions of soction 188(f) and should 

providos ~uidnnco on tho intrrproiation thamfom bo rogiirdod as no longor 

;,f omt)in~ii nir quality dn~n to cli!~c!rniino 'Swi r~c:tion 2.4 orul)paliclix K or40 CFW par1 tho air quulity statris of ti11 aroa. sn nncl "fhn ~:uiclnlinn on tlie Iclantificn~ion and 

OM of Air Quality Dele Afft~cI~~d by Excol)tionrl 

'Scw 51) FH 51270 (Oc:tc~l~~r 1. 18!131. Evonra." EIJA450/4-8O-007. luly 1080. 

having legal effect. Similarly, any EPA 

guidance permitting such exclusion of 

these events is inconsistent with the 

amended Act. For this reason, 

exceedances which are attributable to 

uncontrollable nonanthropogenic event* 

may not be discounted or dewoighted in 

any manner, but must be fully 

considered in determining whether 

violations of the NAAQS havo occurred 

and whether designation as 

nonattainmont is warranted. Future 

determinations rolevant to exceptional 

events should therefore focus on the 

remaining type of exceptional event 

identified undor soction 2.4 of 40 CFR 

part 50, appendix K, namely whether 

the events-anthropogenic or 

nonanthropogenic-are likoly to recur a\ 

the same locsion. 

The EPA plans to make perfunctory ' 

modifications to soction 2.4 of40 CFR 

part 50, appondix K. In addition. 

guidanco on the interpretation of air 

quality data bolioved to be influenced 

by spocial evonts and conditions will be 

addrossed in a separate publication that 

will replaco the 1986 Exceptional 

~vents-~uidcline. 

111. International Border Areas 

A. Statutory Requirement 

Section 818 of the 1990 Amendments 

addod a now section, 179B. to subpart 

1. part D of title I. Soction 1798 applies 

to areas that could attain the relevant 

NAAQS by the statutory attainment date 

but for emissions emanating from 

outsido the United States (U.S.]. For 

PM-10 nonallainmenl areas, section 

179B(a) providos that EPA must approve 

the moderato area SIP if (1) the SIP 

meets a11 the applicable requirements 

undor the Act other than a requirement 

that such plan or mvision demonstrate 

attainment and maintonance of the PM10 NAAQS by the applicablo attainment 

dato. and (2) tho Stato demonstrates to 

EPA's satisfaction that the SIP would bo 

adequnto to nttain and maintain tho PM10 NAAQS by the attainment date but 

for emissions emanating from outsido 

tho U.S. In addition. section 179B(d) 

providos that if a State demonstrates 

that an aroa would have timely attained 

the PM-10 NAAQS but for emissions 

omanating from outsido the U.S.. the 

area must not be subject to tho 

reclassification provisions of section 

188(b](2]. Section 188@](2) provides 

that any moderato I'M-10 

nonattainrnont area that EPA determines 

is not in attainment after the applicablo 

attainrnont dato shall be rcclassifiod to 

sarious by operation of law. Therefore. 

the statute provides th~t areas that could 

attain but for emissions emanating from 

outsido tho IJ.S. must not be mclassificd 

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Federal Register I Vol. 59, No. 157 I Tuesday, August 16, 1994 I Proposed Rules 

as serious aFter failing to attain by the 

applicable date.' 

B. Policy 

Assuming that a plan or revision 

meets all applicable requirements, the 

State must show that an area is eligible 

to have its SIP approved and not be 

reclassified as serious under section 

179B by evaluating the impact of 

emissions emanating from outside the 

U.S. and demonstrating that the SIP 

would bring about attainment but for 

those emissions. Several types of 

information may be used to evaluate the 

impact of emissions emanating from 

outside the U.S. The EPA will consider 

the information presented by the State 

for individual nonattainment areas on a 

case-by-case basis in determining 

whether an area may qualify for 

treatment under section 179B. Five 

examples of such information are listed 

below in increasing order of 

sophistication (the State may use one or 

more of these types of information or 

other techniques, depending on their 

feasibility and applicability, to evaluate 

the impact of emissions emanating from 

outside the U.S. on the nonattainment 

area; the first three examples do not 

require the State to obtain informntion 

from a foreign country): 

1. Placs several ambient PM-10 

monitors and a meteorological station. 

measuring wind speed and direction, in 

the U.S. nonattainment area near the 

international border.8 Evaluate and 

quantify any changes in monitored PM- 

'As noted, section 179B(dl states that areas 

demonstrating attainment of the standards. but for 

emissions emanating from outside the U.S.. shall 

not be subject to section 188(111(2) (roclassification 

for failure to attain). By analogy to this provision 

and applying canons of statutory construction. EPA 

will not reclassify bofore the applicablo attainment 

date nroas which can domonslrate attainment of the 

stnndards. but for omissions emanating from 

outside the U.S. (soo soction 188(b)[l)). First. 

section 1790 evinces a gcnoral congressional inlenl 

not to ponalize areas whero omissions emanating 

from outside the country are the but-for cause of the 

PM-I0 nonattainment problems. Further. if EPA 

were to roclassify such arnas before the applicable 

attninmnnt date. EPA, in effnct. would be reading 

soction 1790(d) out of the slatute. Sl)ecifically. if 

El'A procoodod to roclassify, bofore the applicable 

attainment date, thoso aroas qualifying for treatment 

under soction 1790. an area would never be subjoct 

to the provision in section 179D(d) which prohibits 

EPA from reclassifying such areas aftar the 

applicable attainment data. G~nona of statutory 

construction counsnl against intarproling the law 

such hat language is rcndcrod more si~rplusnge. 

Finally, note that section 17tlI3(~1) contains a clcarly 

erronoous rnft!renco to carbon monoxidn instcad of 

PM-10. and that this soction conlains othor cloar 

errors (son, e.g., soction 17!ln(cl rnfera~lcn to soction 

186(11)(9), which dons nrit rxisr 1. 

8See 40 CFK part 58 for gl~id~licn on loceling 

PM-I0 monitors and "On-sit13 Mnte(lr'~I~gi~a~ 

I'rogram Guidance for Kt?gulntory Mo(ll!ling 

Applications." EPA45014-87-013. luria 1987 for 

g~~tdanco onlocating mctnorologicnl sti~tions. 

VwOate 09-AUG-94 1339 Aup 15, 1994 Jkt 1502: 

10 concentrations with a change in the 

predominant wind direction. 

2. Comprehensively inventory PM-10 

emissions within the U.S. in the vicinity 

of the nonattainment area and 

demonstrate that the impact of those 

sources on the nonattainment area after 

application of reasonably available 

controls does not cause the NAAQS to 

be exceeded. This analysis must include 

an influx of background PM-10 in the 

area. Background PM-10 levels could be 

based. for example, on concentrations 

measured in a similar nearby area not 

influenced by emissions from outside 

the US. 

3. Analyze ambient sample filters for 

specific types of particles emanating 

from across the border (although not 

required, characteristics of emissions 

from foreign sources may be helpful). 

4. Inventory the sources on both sides 

of the border and compare the 

magnitude of PM-10 emissions 

originating within the U.S. to those 

emanating from outside the U.S. 

5. Perform air dispersion and/or 

receptor modeling tb quantify the 

relative impacts on the nonattainment 

area of souices located within the U.S. 

and of foreign sources of PM-10 

emissions (this approach combines 

information collected from the 

international emission inventory. 

meteorological stations, ambient 

monitoring network, and analysis of 

filters). 

In addition to demonstrating that the 

SIP for the area would be adequate to 

timely attain and maintain the NAAQS 

but for emissions emanating outside the 

U.S.. the SIP must continue to meet all 

applicable moderate area SIP 

requirements in order to qualify for the 

special SIP approval under section 

179B. Among other things, the SIP must 

provide for the implementation of 

reasonably available control measures 

(RACM), including reasonably available 

control technology (RACT) (see 57 FR 

13540). In international border areas, 

RACMIRACT must be implemented to 

the extent necessary to denionstrate 

attainment by the applicable attainment 

date if emissions emanating from 

outside the U.S. were not included in 

the analysis. The EPA believes that this 

interpretation of the degree of RACM 

tho State is required to implement in 

moderate PM-10 areas affected by 

emissions emanating from outside the 

U.S. is consistent with the purpose of 

section 179B. By directing EPA, under 

section 179B. to approve the plan or 

plan revision of a moderate PM-10 area 

which shows it would attain the 

NAAQS but fur foreign emissions a::. : 

by excluding such an area from 

reclassification to serious. Congress 

i7 POW000 Frm 00012 Fml4702 Slml4702 E:\FA 

- - 

\ 

clearly wanted to avoid penalizing 

States containing such areas by not 

making them responsible for control of 

emissions emanating from a foreign 

country over which they have no 

jurisdiction. Moreover, by excluding th!; 

area from reclassification. Congress alsrr 

elected to avoid subjecting such areas tq 

the more stringent control measures 

applicable in serious PM-10 areas. In 

addition, as set forth in section 

179B(a)(2), the second condition which 

must be met before EPA may approve a 

moderate area plan showing attainmenk 

but for foreign emissions, by its plain 

terms, requires the State to establish 

only that the plan submitted would be 

"adequate" to timely attain and 

maintain the NAAQS, but for emissiorib 

from outside the U.S. Nothing in secticif, 

179B relieves the State from meeting all 

its applicable moderate area PM-10 SIP 

requirements, including the requiremetic 

to implement RACM. Nonetheless, if, is 

doing so, States containing such an arq 

were also required, because of 

contributions to PM-10 violations 

caused by foreign emissions, to should$, 

more of a regulatory and economic ' 

burden than States not similarly affectu,, 

[i.e., by implementing measures which - 

go well beyond those which the SIP 

demonstrates would otherwise be 

adequate to timely attain and maintain 

the PM-10 NAAQS) such a reqliiramesl 

would unfairly penalize States 

containing international border areas 

and effectively undermine the purpose 

of section 179B. Indeed, to the extent ah 

affected State can satisfactorily 

demonstrtlte that implementation of 

such measures clearly would not 

advance the attainment date. EPA coul~ 

conclude they are unreasonable and ,=, 

hence do not constitute RACM. 

Notwithstanding the above, in light of 

the overall health and clean air 

objectives of the Act, EPA does 

encourage affected States to reduce 

emissions beyond the minimum 

necessary to satisfy the "but for" test irr 

order to reduce the PM-10 

concentrations to which their 

populations are exposed. 

The SIP for an international border 

area must also include contingency 

measures as required under section 

172(c)(9) of the Act. Under section 

179B!a)(l), such SIP'S must meet "all 

the requirements applicable to it undel 

the Act" except that they may 

demonstrate timely attainment by 

discounting emissions emanating frorn 

outside the U.S. Contingency measures 

are additional measures included in tk 

SIP that can be undertaken to reduce 

emissions if the area fails to make RFP 

or to attain the primary NAAQS by the 

.* rFMP16AU2 PTl pl6ptl 
42002 Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 

applicable attainment date. In the area is required under section be implemented in the area. The EPA 

international border areas, EPA will not 189(b). This revision must. among other intends to issue guidance in the future. 

require the contingency moasuros for things, include provisions to assure that as app~opriate, on applying for an 

PM-10 to be implomented after the area BACM (including BACT) will be extension of the serious area attainment 

fails to attain if EPA detnrmines that the implemented in the area (soe section date. 

area would have attained the NAAQS. 189(b)(l)(B)]. In addition. a If a serious area fails to attain by the 

but for emissions emanating from demonstration (including air quality applicable attainment date (which may 

outside the U.S. Howevor, the EPA will modeling] must be submilted showing be an extended attainment date), 

require contingency measures to bo that the plan will attain the NAAQS mother SIP revision is required within 

implemented if it determines that the either by the applicable attainment date 12 months that provides for attainment 

area failed to make RFP in achieving lhe or. if an extension is granted under and until then for annual reductions in 

roquimd reductions in PM-10 omissions section 188(e), by the most expeditious PM-10 or PM-10 precursor emissions 

from sources within the U.S., or if tho alternative date practicable (seo section within the area of not less than 5 

area does not, in fact, obtain the 189(b)(l)(A)). percont of the amount of such emissions 

emission reductions that were necessary The SIP revisions to require the as reported in the most recent emission 

to demonstrate timely attainment of the implementation of BACM must be inventory for the area (see section 

NAAQS, but for emissions ornonoting submitted to EPA within 18 months 189(d)). 

from outside the U.S. afier an area is reclassified as serious In addition to the spocific PM-10 SIP 

1V. Serious Area SIP Requirements (see section 189(b)(2)). The BACM are to rcquimments contained in subpart 4 of 

be implemented no later than 4 years part D, title I, States containing serious Tho Act roquiros States to submit aftor an area is reclassified [see section areas must meet all of the applicable sovoral SIP rovisions, as nocossary, 189(b)(l)(B)). The EPA's policios gonoral SIP requirements set forth in providing for implomontotion of rogflrding the requirement to implement section 110(a](2) and the nonattainment 

incroosingly stringont control moasuros BACM in serious areas are discussed in area SIP requirements set forth in and demonstrating when those control section VI of this document. subpart 1 of part D, title I, to tho extent meosuros will bring about attoinment of The sorious area ottainment that those provisions are not otherwise tho PM-lo NAAQS. Tho first SIP demonstration requirud under section by, or intogrally to, 

rovision was duo Novombor 15. 1991 for 189(b)(l)(A) must be submitted to EPA the more specific PM-I~ the initiol modornto PM-10 within 4 years aftor an area is roquirements.10 The general SIP nonottainmont aroas. For areos roclassifiod based on a determination by requirements applicable to all redesignoted nonattoinmont for PM-10 EPA hot tho aroa cannot practicably ,,onattainment areas are discussed in in tho future undor soction 107(d)(3), attain the NAAQS by the statutory the General Preamble at 57 FR 13556- the first SIP revision will bo due within deadline lor moderate aroas. It is due 13557, 18 months aftor tho aroa is redesignated within 18 months after an area is The requirements specifically (soe soction 189(a)(2)). This SIP revision reclassified for actually having failed to aPplicablo to serious areas under 

must, omong othor things. provido for attain the NAAQS by the modorate area subpart 4 are found primarily in section irnplomontation of RACM on sources in attainment date (see section 189(b)(2)). 189, ~h~~~ include: 

tho aroa (see sections 189(a)(l)(C) and Tho now attainmenl date for initial a. Current actual and allowable 

172(cl(ll). All available technologically PM-10 nonattainment areas that are emissions invelltories that meet EPA 

and oconomicolly feosible control roclassifiod as serious is to be as guidelines 11 (see section V1.D. below). 

moosuros would bo considered RACM, oxp~ditious as practicable but not later b. Submission of a SIP, under section 

nnd tl~erefore roosonablo for odoption, that Docomber 31, 2001. For areas that 189(b)(l)(A), that includes a 

for ornos that cannot ottain tho NAAQS are dasignoted nonattainment for PM-10 demonstration that the plan provides for 

by tho applicnble ottainmont date in the future and become attainment by the applicable attainment 

(~oc~~b~~ 31, 1994 for initial modoroto scrious~ tho attainment date is be as date (December 31, 2001 for the areas 

PM-10 nonottoinmont aroos) (so0 57 FR expeditious as procticable but no later initially designated nonattainment for 

13544).v than the end of tho tenth calendar yonr PM-10 by operation of law under If EPA dotorminos thot a modoroto boginning after the area's designation as section 107(d)(4) and no later than the 

oroo cannot practicably attoin tho nonattainment (see section 188(c)(2)). end of the tenth year beginning after the NAAQS by tho applicoblu attoinmont If the State demonstrates to the area's redosignation for areas clnto (or dotorminos the nrna has failed satisfaction of EPA that atta~~mont by subsequon~~y mdesignated to olloinl roclassifios tho nroa as a the statutory doadline for sorious aieas nonat!ainment), or a demonstration that 

snrioi~s nonottninment area undor (0s sot forth in sodion 188[c) of the Act) attainment by the above dale is not 

soction lRR(b), a secontl SIP rovision for is im~racticablo* the State must practicable and that the plan provides demonstrate that the 'IP provides lor for attainment by the most expeditious "N~ltn that Il it can I* stinwn that mnasures are attainment the most ox~oditious date practicab]e.l~ trnr~~r~nonatrln tn~cnl~sn nminnions from tho sources alternative date ~racticable. The State 

alf~rct~~tl nrn ir~siynifit.nnt or de minlmis. such 

Intlnslrrlrs miry In trxclud~rd from considnration as may to lor a sing1e extension #Osee 57 FR I3538 [April 16, ]ggz), 

I~IIIV woultl rtot rcrt,rnnnnt RACM lor that arna (see tho sari?"' .. attainment -. . date* 11 "PM-I0 Emisslon lnventorv Reouirements." 

57 PK ins4nl. Mo;novnr. in lntnroaticlnnl tmrtbr under section 188(el of the Act, not to EpA450/~-93-XX. U.S. ~nvirdnmentel f2rotoction 

Ilrncrr. rntmwres which go hyontl thosn wliieh tlin excood 5 yoars beyond tho sorious area Agoncy. Resoarch Triangle Park. NC. 1993. 

SII' cl~~~nc~ristrat~rs woultl tm ncl~~rltrnt~ to nltnin nnd attainment data. A Stat0 roquosting an '~Substquon: to adopting requirements lor BACM 

nrr~i~itniti tln rte~~(Iard. but lr~r nniissions ema~inting extension under section 188(e) for an shortly after the nonettainment area is reclassified 

lroni oirtsi~lo thn 1J.S.. would not l)n consi(inrnd as sorious, it may be nocessery lor the State to adopt 

"rnasonrtt~ly" avnilnt~ln-nncl tl~nrnlrrrn wr~uld not be must* among other things* additionni control measures in order to demonstrate 

rnclrrir~tcl Iry KAC'M-sincn t1111y WIIUIII 11r1t aclvnnce demonstrate that the plan for the area that the SIP provides lor attainment ol the PM-10 

llrlr ntlr~irr~tic!r~t cl~rto lnlthou~h SIIIII-~ niny ~~luct to includOS the most stringent measures NAAQS in accordance with section l89lb~(l~~A~~i~. 

imi~lnni~rrit sirclr ~n~~nsurc~s in ordar to rn(111c:e the that included in tho implomontation Il t11e Statn dnmnnatre~nn, in accordnncn with 

111rtrlic'a t~xlrrlntrrn to I'M-101 [JIIII diacirssion undnr section l8~[bllll(Al~iil, that attainment by the 

Irrtnrnritioti~~l Dordnr Amas ol this yuidnncn plon of any Stote or are achieved in al~plicablp serious erna nttainment datu is 

rloc:~~ninnl I. proctico in any State, and can fonsibly iml)racticable atid sn~ks an extnnrion or the 
Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 4200:1 

'I 

, . 

c. Provisions, under section 

189@][l)(B). to assure that BACM 

[including BACT] will be implemented 

no later than 4 years after the area is 

reclassified as serious. 

d. A requirement, under section 

189(b)(3), that the terms "major source" 

and "major stationary source," used in 

implementing a new-source permitting 

prowam under section 173 and control 

bf FM-10 precursors under section 

189(e), include any stationary source or 

group of stationary sources located 

within a contiguous area and undor 

common control that emits, or has the 

potential to emit, at least 70 tons per 

year of PM-10. 

e. Contingency measures 13 (see 

section VII. below). 

f. Quantitative milestones, (applicable 

to both moderate and serious area SIP's 

under section 189(c)), which are to be 

achieved every 3 years until the area is 

redesignated attainment, and which 

demonstrate RFP toward attainment by 

the applicable date. The provision 

includes a requirement for periodic 

reports demonstrating whether the 

milestones have been met [see'section 

VIII. below). 

g. Plan revisions which provide for 

attainment of the PM-10 NAAQS and 

annual reductions of not less than 5 

percent of inventoried PM-10 and PM10 precursor emissions within the area, 

under section 189(d], if the serious area 

fails to attain the standards. 

h. As applicable, RACT-level, BACTlevel, and new source review control of 

PM-10 precursors %om major stationary 

sources of precursors in the airshed 

(applicable to both moderate and 

serious area SIP's under section 189(e)). 

The demor.stration required under 

section 189(b)(t](A) should follow the 

existing modeling guidelines addressing 

PM-10 (e.g., "PM-10 SIP Development 

Guideline" (June 1987); "Guideline on 

Air Quality Models" [Rsvised); 

memorandum from Joseph Tikvart and 

Robert Bauman dated July 5,1990) and 

any applicable regulatorj requirements. 

A supplementary attainment 

demc%s!ration iolicy applicable to 

initial moderate PM-10 nonattainment 

areas facing special circumstances was 

issued in a memorandum from EPA's 

attainment date pursuant to section l88le), the State 

must demonstrate to the best of its ability that the 

plan lor the area includes the most stringent 

measures that are included in the implcmcntotion 

plan of any State or are acl~ieved in practice in any 

State, and can be foa~ibly implnmentcd in the area. 

"Contingency measures are other available 

control measures. in addition lo those in the control 

strategy to attain the NAAQS, that can be 

implemented if EPA determines the area fails to 

make reasonable further progress or to atloin the 

NAAQS by the applicable attainment date lseo 

section 172(c)[9)1. 

Office of Air Quality Planning and The EPA's policy focus shifted awaye ' 

Standards to the Directors of EPA from the type and location of the 

Regional Air Divisions on March 4, emission sources (i.e., traditional or 

1991.14That supplementary policy is nontraditional sources, urban or rural 

not applicable to serious area SIP locations) to tha size of the particles 

demonstrations. emitted when the indicator for the 

V. Waivers for Certain PM-10 

Nonattainment Areas 

A. Historical Perspectives 

The EPA in the past focused much of 

its air pollution control efforts on 

ind:istrial point source emissions and 

other traditional sources of air 

pollution.15 For instance, EPA's 1977 

guidance on SIP development gave 

priority to control of urban fugitive dust 

after control of traditional sources, but 

in proference to rural fugitive dust, on 

tho grounds that (1) urban soil was 

believed to be contaminated and, 

therefore, potentially more harmful than 

the native soils in rural areas; [2) the 

potential for significant population 

exposures and attendant health effects 

wis much greater in urban areas; and (3) 

scarce resources at the Federal, State, 

and local agency levels could be most 

effectively brought to bear on the more 

pronounced problems found in urban 

areas.16 Accordingly, EPA's policy was 

to require greater emphasis on control of 

emissions in urban areas, including 

control of fugitive dust from all major 

sources. In contrast, control 

requirements for rural areas were far 

less ambitious, focussing on the control 

of major industrial sources, with little 

attention given to natural or 

nonindustrial emissions. This policy of 

giving a lower priority to contr-olling 

natural or nonindustrial emissions in 

rural areas became known as the "Rural 

Fugitive Dust Policy." l7 

1'"PM-10 SIP Attainm.*nt Demonstration Policy 

for Initial Moderate NonattrInment Awas." 

mamorandum from John Ca!cahni and William 

Laxlon lo Director. Air Division. EPA Regions I-X. 

March 4. 1991. 

"The EPA distinguished between "traditional" 

and "nontraditional" sources. The term 

"nontraditional source" first appeared in official 

print in 1976 In EPA's "National Assessment of the 

Urban Particulate Problem." EPA-45013-76-024. 

July 1976. and was coined as e catch-all to refer to 

those sources not traditionelly considered In air 

pollution control strategies. including construction 

and demolition. tailpipe emissions. tire wear. end 

various sources of fugitive dust. Since then, the use 

nl the term has expanded to include such sources 

as prescribed agricultural and silvicultural burning. 

open burning. and residential wood combustion. 

1h"Guidance on SIP Development and New 

Source Review in hens Impacted by Fugitive 

Dust." Edward F. Tuerk. Acting Assistant 

Administrator for Air and Waste Management. to 

Regional Administrators. 

''See. e.g.. "Model Lettar Regarding State 

Designation of Attainment Status." David H. 

Hawkins. Assistant Administrator for Air and Waste 

Management, to Regional Administretors. October 

7. 1977: see also. "Fugitive Dust Policy: SIP'S and 

New Source Review" (Augunt 1084). 

NAAQS was changed in 1987 from total 

suspended particulate matter to PM-10, 

While revisions to the rural fugitive dust 

policy were being considered, tho policy 

was continued during the initial phases, 

of implementing the PM-10 NAAQS on 

an interim basis.ls However, EPA 

believes that the 1990 Amendments 

provide a statutory alternative that . 

wholly supplants the rural fugitive dust 

policy (see sections 107[d)(4)[B) and 

188[f) of the amended Act; 56 FR 37659 

(August 8, 1991)). 

B. Waiver Provisions 

The Act, as amended in November 

1990, was designed to assure that 

attainment and maintenance of the PM10 standards, which were promulgated. 

in 1987 (52 FR 24634, July 1,19871, be 

as expeditious as practicable. Thus, the 

Act requires States to submit several 

revisions of the SIP for PM-10 

nonattainment areas, if necessary, to 

ensure attainment of the PM-10 NAAQ:? 

as expeditiously as practicable. Among 

other planning requirements, the SIP , 

revisions must first provide for the : 

implementation of RACM on PM-10 

sources. If RACM is not adequate to 

attain the NAAQS, subsequent revision6 

must provide for implementation of 

additional, more stringent control 

measures until the NAAQS are attained. 

Congress recognized that there may be 

areas where the NAAQS may never be . attained because of PM-10 emissions 

from "nonanthropogenic sources," 19 

and that the imposition in such areas of 

certain State requirements, as. 

described in the previous section, may 

not be justified. Therefore, under 

section 188(f') of the Act, Congress 

provided a means for EPA to waive a 

specific dato for attainment and certain 

control and planning requirements 

when certain conditions are met in the 

nonattainment area. 

Section 188(f) provides two types of 

waivers. First, the Administrator may. 

on a case-by-case basis, waive any 

requirement under subpart 4 applicable 

to any serious nonattainment area wherq 

EPA determines that anthropogenic 

sources of PM-10 do not contribute ,- 

significantly to the violation of the 

'*See 52 FR 24716 [luly 1. 19871. 

'"The legislati\ e history of the 1990 Amendmanli 

indicates that Congress intended that the term ; 

"nonanthropogenic" sources of PM-10 refer to 

activities where the human role in the cause of sucl, 

emissions is highly attenuated [see H.R. Rep. No. 

490. lOlst Cong.. 2d Sess. 265 (1990)). 

VerOale 09AUG-94 13:39 A~Q 15.1994 Jkl 150257 PO 00000 Frm 00014 Fm( 4702 Sfm(4702 E:\FRFMIPlGAUP.Prl pl6pll 
42004 Federal Register I Vol. 

standard in the area. Second, tho 

Administrator may waive a specific date 

for attainment of the standard where 

EPA determines that nonanthropogenic 

sources of PM-10 contribute 

significantly to the violation of the 

standard in the area. 

Section 188(1) contains two different 

legal tests. The first test applies to a 

waiver of the serious area requirements 

and requires that EPA determine that 

anthropogenic sources do not contribute 

significantly before EPA grants such a 

waiver. The second test applies to a 

waiver of an area's attainment date and 

requires that EPA determine that 

nonanthropogenic sources contribute 

significantly before waiving the 

attainment date. The first test is more 

stringent than the second. 

C. Application of the Waiver Provisions 

Several questions must be answered 

before the waiver provisions can be 

applied. Each of these questions is 

discussed in the subsections that follow. 

1. What types of sources should be 

considered anthropogenic and 

nonanthropogenic? The legislative history of the 1990 

Amendments indicates that Congress 

intended that the term 

"nonanthropogenic" sources of PM-10 

refer to activities where the human role 

in the cause of such emissions is highly 

attenuated [see H.R. Rep. No. 490 at 

265). Naturally occurring events such as 

wildfires, volcanic eruptions, unusually 

high pollen counts, and high winds 

which generate dust from undisturbed 

land are examples of nonanthropogenic 

sources that EPA believes meet the 

intent of Congress. Anthropogenic sources of PM-10 

emissions are those resulting from 

human activities. Some of the 

traditional and nontraditional 

anthropogenic sources generally 

considered in PM-10 SIP'S are 

commercial, institutional, and 

residential fuel combustion; fossil fuelfired electric power plants; industrial 

processes; vehicular traffic on paved 

and unpaved roads; construction 

activities; agricultural activities; and 

other sources of fugitive dust which are 

directly traceable to human activities 

and which are reasonably foreseeable 

incidents of such activities.20 

2. What criteria should be used in 

determining when nonanthropogenic 

sources contribute significantly and 

when anthropogenic sources do not 

contribute significantly to violation of 

the NAAQS in the area? 

m"PM-10 SIP Development Guideline." EPA45012-86-001. U.S. Environmental Protection 

Agency. Resoarch Trianglo Park. NC. 1987, p. 5-5, 

Table 5.1. 

59, No. 157 I Tuesday, August 16, 1994 I Proposed Rules 

4 

The Act does not define the term area's practicable abilities. These , ' 

"contribute significantly" as it is used principles are discussed below in 

in section 188(f), nor does the legislative connection with each of the two waiver 

history provide any useful guidance.2' tests. 

Where a statute is silent or ambiguous 1ii selecting an appropriate 

with respect to the meaning of a "significance" contribution from 

statutory term, a reasonable agency anthropogenic sources (for the purposec 

interpretation of the term must be given of deciding whether serious area 

deference by a reviewing court (see requirements should be waived). EPA 

Chevron U.S.A., Inc. v. Natural has elected to rely on the test of 

Resources Defense Council, Inc., 467 significance that is applied under new 

U.S. 837,8424345 (1984)). The EPA source permitting programs. Under the 

thus believes it has the authority to new source review (NSR) permit 

select reasonable criteria by which to program, the EPA requires State 

determine when nonanthropogenicl permitting programs to consider new 

anthropogenic sources in an area dotdo major sources or major modifications a& 

not "contribute significantly" to levels causing or contributing to a violation ol 

of pollution which exceed the NAAQS, the PM-10 NAAQS when the source 

as well as to consider for this purpose, would add, at a minimum, over 5 pglm 

criteria utilized in other statutory to the 24-hour average or over 1 pglm 3 

contexts. In light of the different legal to the annual average PM-10 

tests set forth in section 188(f), the EPA concentrations in an area that does not 

believes that different indicators of or would not meet the PM-10 NAAQS 

significance are needed to serve the (see 40 CFR 51.165fi)). Given that the 

statutory purpose of encouraging purpose of new source permitting 

protection of public health and welfare programs is also to protect air quality i~ 

while avoiding unreasonable control both attainment and nonattainment ! 

actions. The criteria which EPA believes areas, EPA generally believes that the ' 

provide a reasonable approach to test of significant contribution to 

making such a determination, as well as violations under that program should 

a discussion of the basis for selecting also be applicable when determining 

these criteria, are set forth below. significant contributions of 

Generally, where a nonattainment anthropogenic sources under section 

area's anthropogenic sources contribute 188[f) of the Act. It should also be note? 

very little to violations, it is likely that that, in determining "significance" for: 

controlling those emissions to the extent purposes of section 188(f), the plain 

feasible for the area will be insufficient terms of that provision and its 

to attain the NAAQS. In such cases, it underlying purpose dictate that EPA 

would be unreasonable to require the consider the impact of the 

area to implement more stringent and anthropogenic sources as a whole. 

more expensive controls on Consequently, where emissions from al, 

anthropogenic sources since they would anthropogenic sources as a whole , 

contribute little to attainment or to contribute less than or equal to 5 pglm a 

reducing the public's exposure to to 24-hour average design 

unhealthy air quality. In similar fashion, concentrations and less than or equal to 

where nonanthropogenic emission I pglm 3 to annual mean design 

contributions are great, oven after the concentrations in a nonattainment area, 

area has taken reasonable steps to after all RACM have been 

reduce them, at some point it may not implemented,22 EPA will generally be feasible for the area to reduce regard such contributions as 

nonanthropogenic (or anthropogenic) insignificant for purposes of waiving 

emissions sufficiently to effect any real requirements applicable to serious PMchange in ambient concentrations. 10 nonattaiilment areas pursuant to 

Consequently, it would be unreasonable section 188(f). 

to require the area to continue to pursue Generally, if an area meeting this test 

control measures that are beyond the has not yet been reclassified as serious 

and the area would qualify under this 

"It should be noted that the term "contribute test for a waiver of certain serious area 

significantly" (or variations of that term] has been requirelnents as deemed appropriate by intorpreted difforently throughout the ALI, 8.8.. in 

the ozonelcarbon monoxide programs (see section EPA (see discussion below), then EPA . 

107[d1(41(A)(iv) and (~11, the new source review will not require reclassification, since 

(NSR) program. and in specific provisions of the that action would have no practical , 

statute. such as sections 110(a)(2)[DJ(i)(11 and 

126[aJ(l)(B1. An agency is permitted. but not 

required. to give a similar meaning to similar terms 221mplemontation of WCM (including WCT) i! 

which nnnnnr in different nnrts ofa statute. Thus. required in all moderate PM-10 nonallainmenl . . . . . - . . - rr--. ... ~ r-..- - 

although EPA is not bound to adopt the ar&s and that roquirement is not waived under thy 

interprotation given the term "contribute provisions of ~ection lee(& Therefore, the issue is' 

sinnificantlv" in other oarts or the etatute. it is whether anthropogonic sourcos still contribute 

iiLoiise . no; orecludeb from accordinn this use of significantlv lo ;iolalion, of the NAAQS in an aroh ~ ~ r ~ -~ ., similar language some interpretive weight. ahr inlple~enting RACM. 


- 
Federal Register I Vol. 1994 I Proposed Rules 42005 

4 

effect. Generally, if the contribution of 

anthropogenic emissions to the 24-hour 

design concentration exceeds 5 pg/m 3, 

or if the contribution to the annual 

design concentration exceeds 1 pglm 3, 

even after the application of all RACM, 

then the area should be reclassified as 

serious, and serious area requirements, 

including BACM. should be 

implemented. The EPA will consider 

exercising its authority to waive serious 

area requirements on a case-by-case 

basis where the anthropogenic source 

contribution exceeds these levels, and it 

can be persuasively demonstrated that 

because of unique circumstances. 

anthropogenic sources do not contribute 

significantly to violations of the PM-10 

NAAQS in the area. 

The EPA will consider 

nonanthropogenic sources to contribute 

significantly (and hence grant an 

attainment date waiver) only if, after the 

application of RACM to 

nonanthropogenic sources, their 

contribution to the 24-how average 

design concentration exceeds 150 lg/ 

m 3, or their contribution to the annual 

mean design concentration exceeds 50 

lg/m 3. Because the basic purpose of 

title I is to protect public health and 

welfare through attainment and 

maintenance of the NAAQS, EPA 

believes that before it may generally 

presume a serious area's 

nonanthropogenic emissions 

contribution to be significant, that 

contribution should by itself prevent the 

area from attaining the NAAQS after 

reasonable steps have been taken to 

reduce or minimize their impacts. Areas 

which do not meet the above criteria, 

and other situations for which the 

general presumption is rebutted, will be 

reviewed on a case-by case basis (see 

question 4 below). 

Information derived from chemical 

and optical analyses of ambient filter 

catches, area emission inventories, and 

dispersion modeling to determine 

maximum source impacts can be used to 

evaluate the impact of anthropogenic 

and nonanthropogenic sources. Analysis 

of filters collected with a network of 

monitors over a long period (1 or more 

years] should reveal the portions of 

normal area PM-10 concentrations 

attributable to background. 

nonanthropogenic, and anthropogenic 

sources. rsspectively. 

3. Under what conditions will the 

attainment date for a moderate area be 

waived? 

The effect of waiving the attainment 

date for a moderate area is to relieve it 

of the serious area requirements. 

Therefore. special considerations apply 

to the determination of whethor 

nonanthropogenic sources contribute 

59, No. 157 I Tuesday, August 16, 

significantly to violation of the PM-10 

NAAQS in a moderate area and whether 

such area therefore qualifies for an 

attainment date waiver. 

The significant disparity between the 

legal tests set out in section 188(f), as 

discussed above, ma) IeaJ to an absurd 

result. In particular, if a moderate area 

met the less stringent attainment date 

waiver test and the attainment date for 

the area was actually waived. the area 

would never be reclassified.23 The result 

would be that a moderate area would be 

effectively relieved from the serious area 

requirements without having met the 

more stringent test that Congress 

expressly required be met as a 

prerequisite to a waiver of such 

requirements. In such an event, the 

more stringent test for determining 

whether to waive serious area 

requirements would be rendered 

meaningless. Moderate areas would 

qualify for the attainment date waiver, 

be effectively relieved of all serious area 

requirements and never have to meet 

the required test for such waiver. 

To avoid this absurd result and only 

grant a waiver of the ss-' .lous area 

requirements consistent with the legal 

standard set out in the Act. EPA has 

construed section 188(f) in the following 

manner. A moderate area may only 

qualify ft; an attainmont date waiver if 

it also qualifies for a waiver of the 

serious area requirements. Therefore, 

EPA must determine that anthropogenic 

sources in the area do not contribute 

significantly to the violation of the PM10 NAAQS, and the serious area 

requirements should be waived before 

EPA can grant an attainment date 

waiver for a moderate area. If such a 

determination is made, then the 

attainment date may be waived and the 

area would not be reclassified. These 

special considerations would not be 

relevant where EPA is determining 

whether to waive the attainment date for 

a serious area since waiving the date in 

such circumstances would not as a 

matter of course have the effect of 

relieving the area of the serious area 

requiremonts. An area already 

reclassified as serious could qualify for 

an attainment date waiver solely by 

If EPA waives a specific attainment date for a 

moderate area consistent with itsauthority under 

section 188(0. the attainment date for thearea will 

be vacated. Therefore. the moderate area would not 

be subject to reclassification under section 188(b) 

because there simply would be no attainment date 

that the area cannot practicably meet or that the area fails to meet. However. since section 188[0 

authorizes waiving only the attainment date. the 

moderate ares would still be subject to all the 

remaining moderate area SIP requirements. 

Therefore. the moderate area SIP submitted to meet 

the applicable requirements of subparts 1 and 4 

must. among other requirements, continue to 

provide for implementation of RACM. 

showing that nonanthropogenic 

emissions contribute significantly to thy 

nonattainment problem. 

As part of its policy, EPA will require 

that areas receiving waivers be revisited 

periodically to reevaluate source 

contributions, to ensure that source 

emissions growth is reasonably 

controlled, and to determine whether 

additional controls to reduce the 

public's exposure to high concentrationc 

of PM-10 are available (see also the ' 

discussion under question 5). 

4. What happens if an area cannot 

meet the general criteria described . 

above? 

If evidence in a given nonattainment 

area suggests that nonanthropogenic 

emissions mav contribute significdntlv 

to violations 6ut are not nreser than i5u 

lg/ml and/or anthropog&ic source , . contributions are relativelv small but . 

not less than 5 lg/mJ, the; EPA will 

review the situation on a case-by-case 

basis taking into account relevant 

information such as the relative 

contribution of nonanthropogenic 

emissions/a~:thropogenic emissions anq 

the effects of applying additional 

controls to both types of sources. 

For moderate areas, if preliminary 

data (emission inventory, filter analysis, 

etc.1 persuasively indicate that 

anthropogenic emissions may be 

insignificant and that nonanthropogeni+ 

omissions may be significant in an area; 

but such data are not decisive, then EPA 

will consider granting a temporary or ', 

conditional waiver of the moderate area 

attainment date for no more than 3 yeq 

to allow further evaluation of the 

situation. Prior to granting a temporary 

waiver, EPA and the State must agree 04 

a protocol for evaluating the impacts of 

anthropogenic and nonanthropogenic 

emissions. The protocol must include a 

schedule with interim milestones by 

which the State will complete its 

analyses. The schedule should considq 

the need for the area to adopt and - 

implement BACM so as to meet the 

applicable serious area attainment date 

(as expeditiously as practicable and, for 

those areas designated nonattainment 

under section 107(d](4](B], no later thaq 

December 3 1,2001) in the event the * 

evaluation demonstrates that 

nonanthropogenic emissions do not 

contribute significantly to violations in 

the area. If the evaluation conclusively 

demonstrates that nonanthropogenic 

emissions are significant, then a waiver 

of the serious area attainment date may 

be ranted. 

Ifit is shown for any moderate 

nonattoinment area that, although 

nonanthropogenic emissions may be 

significant, the application of controls 

on anthropogenic sources would 

42006 Federal Register / Vol. 59. No. 157 / Tuesday, August 16. 1994 / Propoxd Rules 

-8 

appreciably reduce PM-10 NAAQS at some time in the future 6. What requirements applicable to 

concentrations in the area, then the area through available means. While EPA serious nonattainment ereas under 

would not be granted a waiver of the does not expect States to exhaust their subpart 4 of part D should be waived? 

moderate area attainment date. but resources to meet standards that may be The individual subpart 4 

would be reclassified as serious. The unattainable. it does expect them to requirements (see section IV. above] wilt 

area would then be required to continue efforts to minimize exposures be waived only after considering all 

implement BACM on non-de minimis to unhealthy air. relevant circ~mstances on a case-byanthropogenic source categories (see Even though a specific attainment case basis foi serious areas where 

discussion in section VI). However. date and serious area requirements may anthropogenic sources do not contribuh; 

subsequent to such reclassification, the be waived indefinitely for an area significantly and where RACM have . area may later apply for a waiver of the where. respectively, nonanthropogenic been implemented. Currently, the 

serious area attainment date if it can sources contribute significantly to section 189(b](3) requirement to moditj demonstrate that even after violations and anthropogenic sources do the definitions of "major sourcew and ' 

implementing BACM (and after not. the State should review the status 41mai0r source- is the only , 

considering the extended ottainment of anthropogenic and nonanthro~ogenic serio,s area requirement that will not t,& and post-attainment provisions of source contributions in the area every 3 waived, . , 

sections 188 and 189 of the Act), years. Such a review would entail 

nonanthropogenic emissions will determining whether nonanthropogenic D. Waiver FoIicJ' Description 

prevent the area from attaining the sources still contribute significantly and consistent with the discussion abovud 

NAAQS. anthropogenic sources do not contribute EPA intends to implement its 

5. For what period may a specific significantly to violation of thePM-10 a~ithority to grant waivers under sectioq attainment date he waived? NAAQS in the area. Since emissions 188(f) in a manner described hy the . When nonanthro~ogenic sources have from anthropogenic sourcos increase diagram presented in Figure lt is 

been determined to contribute with population growth and the location important to note that this diagram is significantly to violations in an area that new sources to the area, the 

has been reclassified to serious, in provided for illustrative purposes only contribution of anthropogenic sources to and should not be interpreted contrary accordance with the above criteria, violations can become significant over to the as it is described in this those sources may permanently Prevent time. Therefore, the need for reinstating ~h~ figure pmsonts six decisiol the area from attaining the standards. a specific attainment date andlor 

Therefore. the attainment date for such previously waived serious area questions. A SIP submitted for G 

areas could be waived 1ndefinitely.24 moderate nonattainment area seeking a 

requirements be reconsidered waiver is oxpected to address the first "However, the phrase waive a specific periodically. date" does not require that the three questions: The EPA has the authority under 

attainment date be waived indefinitely section 172(c](3) to require periodic 1. Can the area attai.1 the NAAQS by 

(see footnote 23 on the effect of waiving updates of a nonattai-ent area's the applicable statutory nttainment datu 

the moderate area attainment date]. nor emissions inventory to assure that the (December 31,1994 for the initial "+ 

nonattainment areas) after does it lessen the State's obligation to requirements of part Dare met. The EPA implementing mCM (including mCT, strive to expeditiously attain the plans to use this authority to 

periodically review the waiver status of for contributing anthropogenic and 

14In cases where it is feaslble to implement areas, as described above. A specific nonanthropogenic sources? 

measures that will reduce future emissions from attainment date and applicable If the moderate area SIP demonstrate? 

nonanthropogenic sources (i e . planting indigenous or wind breaks), EPA has requirements should be reinstated if it is that the area can attain with RACM ' 

the authority u.idersection t88(e) to extend the determined that nonanthropogenic (including RACT] by the attainment 

attainment date for a serious area for UP to s years Sources no longer contribute date, then the answer 10 this question iu 

beyond 2001 if it is possible that the NMQS could Significantly or anthropogonic sources "yes" and the waiver provisions are no! 

be attained in the future. Such measures should be 

considered by States before secking waivers of the begin contributing significantly to applicable. 

attainment date violations in the area. BILUNO CODE 65~40-@ 
0 E 

8 FIGURE 1. WAIVER POLICY DIAGRAM 

_-_- 

1. Can area No 2. Anthropogenic Yes Rechss'i area 

attain with sources s' nificant 

RACM? after RAc 8 (> 5uglrn3)? as serious 

Yes No 

3. Nonanthropogenic 

4. Can area altain 

by the deadline for No wahrers 

serious areas? 

5.Canareaattain 

with an extension 

of the attainment Grant an 

extension 

f Waive specific 6.Canareaattain 

attainment date 

andor appropriate wlannual reductions 

serious area of emiss'ins? \ requirements 1 

Implement Yes annual \ reductions / 
42008 Federal Register I Vol. 59, No. 157 I Tuesday, August 16, 1994 I Proposed Rules 

If an area cannot attain by the Case 113 contribute to violations, to attain the 

statutory deadline. then questions 2 and If sources contribute NAAQS at any time in the future, a . 

3 on the w~iver policy diagram m~~st be significently to violations, but, specific attainment date would not be 

addressed. and several cases may exist. nonan~opogenic sounes contribute waived. Rather. as discussed previously. 

2. Do anthmpogenic sources of PM-10 leu than 150 pg/m3, then waivers will t: ~~~i~~~~~~

as a whole contribute significantly to be granted on a case-by-case basis as 

violations in the are^? discussed above in subsection C., for attainment date extensions and 

continued emission reductions until the 

3. DO nonanthropogonic sources of question 4* The lor and timing NAAQS are attained. H~~~

if 

PM-10 as a wholo contribute of serious area attainment date waivers emissions from anthropogenic sources 

significantly to violations in the area? de~nd upon the answen the reduced to the point that it is no 

Case #1 last diagram. three questions On the Waiver policy longer technologically or economically 

feasible to reduce those emissions , 

If anthropogenic sourcos no longor 4. Can the serious area attain by the further, and tho area still cannot attain statutory contribute significantly to violations in the serious area control (i.e., the NAAQS, then EPA may consider 

the area after the implomentation of BACM, [including BACT]), for waiving the serious area attainment datu 

RACM, then by default, significant anthrupogenic sources? and appropriate serious area 

nonanthropogenic sources must requirements. If the Stato can demonstrate that it is contribute significnntly.25 In this case, possible to attain the NAAQS by the VI. Best Available Control Measures the moderate area attainmont date may statutory deadline for serious areas bo waived. The practical offoct of A. Requirement for BACM 

waiving tho attainmont date for a through the implementation of BACM, There are two circumstances, as 

moderate ama is to mliovo it from then a waiver is not appropriate. If discussed earlier, under which a 

roclassificetion as sorious and, therefore, attainment by the deadline is not moderate PM-10 nonattainmont area 

to reiiove it from cortnin serious area possible, thon question 5 must be may be reclassified as serious. First, an 

requirernonts. Thomfore, a modorate addressed. area may be reclassified whenever EPA 

5. Can thoareaattain withan 

aroa may only qualify for an attainment extension of up to of the detormines that the PM-10 NAAQS 

dnto waivor if it also qualifies for a cannot practicably be attained by the 

wnivor of the sorious ama requiremonts attainment date?'b statutory attainment date.10 Such a 

To answor this question, the State 

[SOO soction V.C., question 3). The State must determine if an extension of time 

determination may be made before the 

should reevaluato the impact of attainment date if a review of the SIP for. 

anthropogonic sourcos on the area 

will make it technologically and an area shows that RACM. including ' 

economically foasible to implement RACT, will not practicably bring the 

pOriodica'ly lo Or additional coi~trol measures that will area into attainment or if delays in not thoy contribute significantly to 

violations. bring the area into attainment. Again, if adopting, submitting, and implementing 

it is possible to attain the NAAQS, then SIP requirements form a basis for EPA : 

Case #2 a waiver is not appropriate. If to conclude that on area cannot 

attainment is not possible even with the practicably attain the NAAQS by the If anthropogonic sources still maximum extension of the attainment statutory attainment date. The second 

contribute significantly to violations in date allowed under section 188(e), then circumstance is when the area is 

tho aroa aftor the implomontation of question 6 must be addressed. reclassified by operation of law upon a 

RACM (I.O.~ contribute over 5 ~g/m3 to 6. Can the ma attain at any time after determination by EPA that the aroa has 

PM-10 concentrations), thon the ama the extonsion deadline if emissions failed to attain the NAAQS on schedule 

would bo mclassifiod as sorious. within the area are reduced annually by (we soction 188b)l. Consoquontly. tho sorious aroa not less than 5 percent?" Section 189b) establishes additional 

roquiromonts discussod in section IV, To answor this question, the State ccntrol requirements for PM-10 

obu\.o, would hnvo to bo implomontod must dotemine if the implementation of nont;ttainmont areas that are reclassified 

in tho aron. Thoso mquimmcnts include, additional control measures, annually, as serlous by EPA. Under section 

among olhor things, tho application of would eventually bring the area into 189b)(ll(B), States must submit SIP 

BACM (including BACT) on source attainment. Sufficient additional contr.01 revisions which provide for 

cologorios that aro still contributing measures would noed to be implomentation of the BACM for PM-IQ 

significantly to violotions (soo tho implemented to achieve at least 5 emissions in such areas. These SIP 

discussion of BAChl in soction V1 and portent annual reductions in the revisions must be submitted to EPA 

footnoto 33). invontory of PM-10 emissions from within 18 months after an area is 

Subsoquontly, the arua may qualify for anthropogenic sources. reclassifi~d and must assure that the 

a waivor of the sorious ama attainment If EPA believos that it is practicable mo"sures are implemented no later than 

doto if it is domonstrotod that for an ama, whore both anthropogenic 4 yoars aftor the area is reclassified as 

nononthropogonic sourco contributions and nonanthropogonic sources serious [soe section 189011 [I) and (2)). 

(i.0.. contributions gronter than 150 pg/ Tho EPA bolieves the requimment to 

m3) would pmvont tho aroo from *The EPA may granl a single extension of the BACM in P"-10 

attaining tho NAAQS. atteinmenl dale for serious areas of no more than nonaitainment areas should. in one 

5 years under the conditions of section 188(8) of Ihe respect. be interpmted similarly to the 

Act. Guidance on ctem~~nstrating that a State 

r*lt In IiCtrlv that Cnngnru inlanilnil all area- qualifies for an attainment date exlanslon wlll be cOmpRrable roquircmcnt 

trvnn Itin .r O~I~IIIIII for waivertto implarnenl hued in the future. RACM in moderate PM-10 

whntrvn, n~nnnurnr ware mmnably avallabln. "If an area fails to attain the NAAQS by !he end 

Thnrmforn. EI'A hnlinvns tl~n Iwnt rna~linp of the of the axtanslon porlod. then the Stale must plan -The statutory attainment date for the initial 

ntatutn rcluinrn !hat !ha nn~lsrion rniluctinns to achieveannual reductlorrs of not 1081 than 5 group of amas dnsignatrd nonaltalnrnent by 

a~trlbutrtrln lo KA(:M [incluiling RACT) should be parcent of PM-10 and PM-I0 precurwr amisslons operation of law upon enadnlenl of the 1990 

ronslilernil I~rfi~rn avaluat~ng the signifir~nce of wilhin the am.. as reported In the most recent Arnendmwnts. under uction 107[d)[4l. is Dncernbr 

anthrirpr~prnic contributions. Invanlory (ma sacllon 189(d)). 31. 1994. 

VaDsla 09-AUG-94 1339 Aug 15.1994 Jd lS0257 PO 00000 Fnn 00010 Fnl4702 SM 4702 E:\FRFMW1MUZ.PTl piWl 

- 
Federal Register / Vo!. 59, No. 157 I Tuesday, August 16. 1994 I Proposed Rules 42009 

nonattainment areas. Section 172(c)(l). 

which applies to all nonattainment 

areas, states that part D RACM shall 

include "such reductions in emissions 

from existing sources in the ama as may 

be obtained through the adoption, at a 

minimum, of masonably available 

control technology ' ' ' . " Thus, 

modorate PM-10 nonattainm~~\t ama 

RACM plans, which are submitted to 

meet the roquimmonts of wction 

189(a)(l)(C), must include provisions 

ensuring the adoption of RACT [sw 57 

FR 13540, column 1). 

For moderate PM-10 areas 

reclassified as serious. the 

nonattainment control requimments 

(i.e., RACM) are ctrrried ovor and 

olevatod to 8 higher lovol of stringency 

(i.e.. BACM). So, by analogy, lust as 

RACM includus RALT, in the samo way. 

BACM includos BALT.m Thus, just as 

nioderato PM-10 SIP mvisions whon 

implementing RACM undor section 

le9[a][1)[C) must provido for the 

adoption of RACT, similarly. PM-10 SIP 

rovisions undor snction 189(b](l)(B]. 

implomonting BACM in sorious PM-10 

nonattainmont arnas, must include 

provisions onsurir~g the adoption of 

BACT. This point was explicitly 

addrossod in tho Houso Committoe 

Ruport: "Sorious areas must includo in 

thoir submission provisions to require 

that the best available control measures 

for tho control of PM-10 omissions are 

implomontod no lotor than 4 yoars after 

tho aroa is classifiod or mclassifiod as 

sorious. Such provisions must include 

tho ap lication of tho bost available 

contro P technology to oxisting statiunary 

sourcos" (H.R. Rop. No. 490, lOlst 

Con .. 2nd Soss. 26647 (1990)). 

~khough snction 189(bi[l)(B) mquims 

RACM (including BALT) to be 

implomontod in sorious PM-10 

nonattainmonl aruns, tho Act doos not 

dufino oithor BACM or BACT for PM10 nonatt~inmont purposos. Whore a 

statuto is silont or ambiguous with 

rospnct to tho moaning of a statuto 

torrn, tho agoxicy is authorizod to a opt 

an interpretation mosonably 

a 

accommodated to tho purpose of the 

statutory provisions..'f' In considoring 

how to intorprot tho provisions 

requiring BACM (including BACT] for 

sorious I'M-10 nonattainmont amas. 

EPA has lookod at sovoral factors: The 

way in which similar terms havo boon 

historically interprotcd in other soctions 

or titlos of tho Act, tho ordinary 

grnmmotlcal usngo associated with tho 

BEvnn wlthout the UC:M analcwv. the Lmst 

avnllalrln lechnolcwir~l ronlrol mnasums by their 

plnln ternis am a subnet of the univerw of lmrt 

avallalrla control measures. 

u'Cl~r~vn~n. 1J.S.A.. Inr. v. Nol~rml Rrrourccs 

r)r.\rmrlsr Cotrnrif. Irlr.. 467 [J.S. R37. 84344 (1984). 

word "best." and the overall structure 

and purpose of title I of the statute. 

B. EPA's liistorical Interpretation of 

Contiol Technology Terminology 

Tho Act uses ssveral terms to refer to 

different levels of emission control 

technology required for existing or new 

sources: "reasonable (RACT)," "best 

(BACT)." and lowest achievable 

emission rate (LAER). It is helpful to 

consider EPA's past and current 

interp~tation and im lementation of 

those various control P evels in 

detormining the control level 

appropriate for BACM for serious PM10 nonattainment areas. 

The term "reasonably available" was 

applied to control measures and control 

technology required to be implemented 

at existin sources in nonattainment 

areas b t'i e 1977 Clean Air Act 

AmendYmonts (1977 Amendments) ('12 

U.S.C. 7502(c)(lj). At that time. EPA 

dofined RACT as the lowest emission 

limitation that a particular source is 

capable of meoting by the a plication of 

technology that is masonab I' y available 

considering technological and economic 

feasibility.'t Control measures were 

determined to be reasonable aRer 

considering their energy and 

environmental im acts end their 

annualized capita f and operating costs. 

In EPA's view, the cost of using a 

control measure is considered 

masonoble if those same costs are borne 

by othor comparable facilities. Since 

Congmss, in the 1990 Arne. dments, did 

not modify EPA's interpretations of tho 

RACM and RACT in the earlier 1977 

Amondments, it can be prosumed to 

havo given some endorsement to EPA's 

dofinition of the tom. 

Congress definod the term "bost 

available control technology" in section 

169(31 of the 1977 Amendments for use 

in implementing the requireme~ito 

prevent significant deterioration (PSD) 

of air quality under part C. title I, of that 

Act. This dofinition was modifiod by 

soction 403(d] of the 1900 Amendments. 

The BACT is currently dofined for the 

PSD rogram as an emission limitation 

base i' on the "maximum dogroe of 

mduction of each ollutant ' ' ' 

emittod from or w I'I ich rosults from any 

majcr emitting facility, which the 

omitting authority. on a caw-by-caso 

&sis, taking into account enorgy. 

''be. lor example. 44 FR 53761-53762 

(Splornbr 17. 1979) end footnote 3 of that notice. 

No10 that EPA's emissions trading policy statement 

(51 FR 43814 [Docember 4.19BOJI has ctarlned that 

RACT rmqulmmen!s may be ra~lsfied by achieving 

"RACT equivalent" emlsrlons raductlons In tha 

aggregate from \he full sot ofexlrllng slatlonary 

wurces sub)ecl to thore requlremantr (aw alsa 

EPA's prolmnd economic lncan~lvrs rule. 58 FR 

11 110.11 I23 (February 23. 1W3)). 

environmenta!, and economic impacts 

and other costs, determines is 

achievable for such facility through 

application of production processes and 

available methods, systems, end 

techniques ' ' ' for control of each 

such pollutant." Thus. BACT is to be 

determined for the PSD program on a 

case-by-case basis taking into account 

the energy. environmental, and 

economic impacts and other costs. 

Secti~n 169(3) also requires that BACT 

be at least as stringent as any 

corresponding new source performance 

standard (NSPS) or national emission 

standard for hazardous air pollutants 

(NESHAP). 

Under the PSD program. BACT 

applies through pmconstruction permits 

issued to major new and major modified 

facilities in areas where the air quality 

is better than the NAAQS (section 

165(a)[41 of the Act. 42 U.S.C. 

7475(a)(41). In broad overview. BACT is 

dotermined by identifying the 

technologically feasible control 

measums, from the universe of available 

control techniques, which yield the 

maximum dogroe of omission reduction. 

aRer considering the energy. 

environmental and econon~!~ impacts of 

the technology, and other costs. Tliis 

may include consideration of the 

annualized capital and operating costs 

for the facility. The costs of control for 

a major new facility or major 

modification of an existing facility 

should be considered as a portion of the 

overall costs of the new facility. 

The term LAER mfers to the level of 

control required for issuing a 

preconstruction permit to major new or 

major modified facilities in areas whore 

tho air quality is worse than the NAAQS 

(i.e., nonattainment areas) (section 

173(a)(2) of the Act. 42 U.S.C. 

7503(al(2)). In broad terms. LAER is 

defined at section 171(3) of the Act as 

the more stringent emission rate bawd 

on eithor the most stringent State 

emission limit or the most stringent 

emission limit achievod in practice by 

such class or ctitegory of source. Like 

BACT, the LAER level of control must 

be at loast as stringent as the NSPS 

applicable to the source. Unlike RACT 

and BACT, the LAER requirement does 

not considor energy or cost factors. In 

genoral, the costs of achieving LAER in 

a nonattainment area must be 

considomd as a portion of the overall 

cost of investing in a major new or 

major modifiod facility, as they am with 

BALT in attainment areas. The EPA 

belioves that it is reasonable to concludb 

that in selecting the term "best" to 

apply to control measures in PM-10 

serious nonattainment areas. Congmss 

likely considemd how the tern has been 
42010 Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules e! 

interpreted in other sections and ti;les the reasons stated above, EPA believes reasonable to accord some interpretive 

of the Act. Several other factors it is reasonable to conclude that wei ht to this use of similar langua 0.32 

[discussed below) support such a Congress intended a greater level of Tierefore. EPAWs interpretation of 

conclusion. stringency to apply in areas that are BACM for serious PM-10 nonattainmen~ 

C. BACM for Serious PM-10 required to implement "best available" areas will generally be similar to the . 

Nonattainrnent Areas controls than in those required only to definition of BACT for the PSD program, 

implement controls that are "reasonably The BACM is the maximum degree of : 

A plain-English interpretation of the available." emissions reduction of PM-10 and PMd 

term "best" implies a generally higher As noted earlier, an array of different 10 precursors from a source [except as 

standard of performance than one that control measures is applicable under provided in subsection C. 3) which is 

may be considered "reasonable." In various title I NAAQS-related programs. determined on a case-by-case basis, 

addition, the structural scheme A key factor, among others, in taking into account energy, throughout titlo I of the Act is to require determining the level of control environmental, and economic impacts the implementation of increasingly appropriate for a given area from among and other costs, to be achievable for 

stringent control measures in areas with the different emission control measures such source through application of 

more serious pollution problems, while and technologies referred to throughout production processes and available 

providing such areas a longer time to title I is the severity of the air pollution methods, systems, and techniques for 

attain the applicable standards. This problem in that area. In addition to the control of each such pollutant. For Pblstructural scheme reflects a basic general categorization of areas as 10. BACM must be applied to existing underlying premise of title I. The "attainment." "nonattainment," and source categories in nonattainment area& 

premise is (1) That more stringent "unclassifiable," the Act characterizes that cannot practicably attain (or fail to 

control measures aro needed in cases the soverity of an area's air pollution attain1 within the moderate area 

when the current control requirements problem by classifying the area, for timeframe and are roclassified as 

will be insufficient to bring a particular example, as "marginal," "moderate," serious.33 

area into attainment; and (2) that the "serious," and so on. As discussed As noted above. EPA will interpret 

more serious the air quality problem, above, the different control measures are PSD BACT and PM-10 BACM as 

the more reasonable it is to require required to be implemented as follows: generally similar bocause, despite the 

States to implement control measures of For new (or modified) sources, BACT similarity in terminology, certain koy 

greater stringency despite the greater applies in PM-10 unclassifiable and differences exist between control 

burdens such measures are likely to attainment areas under the PSD measures applicable in the PSD and 

cause. The Act attempts to balance the program, while W\ER applies in PM-10 serious nonattainment area 

greater burden imposed in those areas moderate and serious PM-10 programs. The BACT under the PSD 

where more stringent controls are nonattainment areas under the program applies only in areas already required by affording the State nonattainment NSR program; for meeting the NAAQS, while PM-10 

additional time to implement them. existing sources, RACM (including BACM applies in areas which are 

For example. under section 188[e), RAn) in moderate PM-10 seriously violating the NAAQS. This 

EPA is given authority to extend the nonattainment areas. while BACM difference in policy goals, arguably, attainment date for a serious PM-10 (including BACT) applies in serious suggests that the PM-10 BACM controlnonattainment area beyond the PM-10 nonattainment areas. In each standard should be more stringent than 

specified statutory date, provided case, the more serious the pollution that for PSD BACT. On the other hand. 

certain conditions are met. One of those problem, tne more stringent the control the burden of installing efficient 

conditions is that the State must standard required. controls during construction of a new 

demonstrate to EPA's satisfaction that It is apparent that in requiring the source or source modification is 

"the plan for that area includes the most application of BACM to existing sources generally less onerous than retrofitting stringent measures that are included in in serious PM-IO areas, Congress an existing PM-10 source with similar 

the implementation plan of any State or implied that these sources should be controls. If one compares both programs 

are achieved in practice in any State, subject to a more stringent level of in terms of these factors, the differing ' 

and can feasibly be implemented in the control than the application of RACM regulatory and economic burdens and 

area." Thus, under this section, the Act required for existing sources in the different policy purposes tend to 

provides such areas an opportunity to moderate PM-10 nonattainment areas, offset each other. Nevertheless. EPA 

receive additional time to attain the but not as stringent as the application of 

NAAQS. The consequence of receiving LAER required for new or modified ']Under accepted principles of statutory 

additional time, however, is that the sources in moderate and serious interpretation. similar terms in a statute generally 

State must demunstrate that its PM-10 nonattainment areas [or the degree of ~$~~~(i~~~o

implementation plan contains the "most control required to secure an extension meaning to similar terms which appear in differen, stringent measures" that can feasibly be under section 188[e)). parts of e statute. 

implemented in the relevant area from 1. Definition '.'The term "source cstegories" for which BACM 

among those which are either included will be required, refers to categories of area-wide 

in any other SIP or have been achieved In view of the preceding discussion, Or large 

PM-10 or PM-10 precursor emissions that may be in ractice by any other State. EPA as a starting point in regulated under a specific rule, generic emission 

&milarly. the Act requires the interpreting BACM for PM-10 limit. or standard of performance. or a specific 

application of control measures that are nonattainment pur?oses, it is reasonable control program in n SIP. For nxampln. the SIP may 

"reasonable" in moderate PM-10 to consider the term BACT as applied in regulate emissions from unpaved roads. the P~D under section 169[3~ construction activiti~s, residential wood nonattainment areas [RACM) and combustion. nsphalt concrete batch plants, etc.. as control measures that are "best" as an analogue. Because PSD BFhCT and source cntegories. Note that. in some instances. an 

[BACM) whenever a inoderate area PM-10 BACM (which includes BACT] entire source category may consist of one larue 

cannot "practicably" attain or fails to are similar terms. EPA beiievos it is individual stationary source that is regulated 

attain the NAAQS and is therefore separately under tho SIP such as a single iron and 

steel manufacturing fncility and the various 

reclassified as serious. Accordingly, for processes therein. 
Federal Register I Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 42011 4 

believes that the differences in policy 

goals--i.e.. preventing further pollution 

under the PSD program and reducing 

existing pollution under the PM-10 

nonattainment program+ounsel 

against adopting the interpretation and 

implementation of PSD BACT in its 

entirety for PM-10 nonattainment 

purposes. Rather. EPA considers it 

reasonable to use the approach adopted 

in the PSD BACT program as defined in 

section 169(3) of tho Act as an analogue 

for determining appropriate PM-10 

nonattainment control measures in 

serious areas, while at the same time 

retaining the discretion to depart from 

that approach on a case-by-case basis as 

particular circumstances warrant. 

2. Preventive Measures 

The EPA ,.onsiders measures that 

prevent PM-10 emissions over the long 

term (e.g.. requiring gas logs in new 

fireplaces) to be preferable to those 

measures that will only temporarily 

reduce emissions (e.g.. curtailment of 

wood stove use during air pollution 

episodes or treatment of fugitive dust 

sources with water). This is because 

such preventive measures are inherently 

more effective and involve significantly 

fewer resources for surveillance. 

enforcement. and administration. 

Moreover, increasing emphasis on 

prevention over mitigation is more 

likely to be both economically and 

environmentally beneficial over the long 

term. 

3. De Mininlis Source Categories 

The BACM are required for a11 

categories of sources in serious areas 

unless the State adequately 

demonstrates that a particular source 

category does not contribute 

significantly to nonattainment of the 

NAAQS. While EPA regards the BACM 

standard applicable in PM-10 serious 

areas as a more stringent control 

standard which calls for a greater degree 

of emissions control for the source 

categories to which it applies. EPA also 

believes that it has the authority to limit 

the applicability of BACM to those 

source categories which "contribute 

significantly" to violations of the 

NAAQS. The Act leaves unresolved the 

question of whether BACM is intended 

to be an all-inclusive requirement 

applicable to every PM-10 serious area 

source category. It should be noted that 

in section 189(b)(l)(B). which contains 

the requirement that serious area PM-10 

SIP'S provitie for the implementation of 

BACM. Congress has not used the word 

"all" in conjunction with BACM. 

Congress has also not stated anywhere 

in the relevant law or legislative history 

that BACM must be applieti to all 

serious area source categories. Even if 

the statute on its face were interpreted 

to require States to impose BACM on all 

source categories in serious PM-10 

areas, the Agency believes. based on the 

decision in Alabama Power Co. v. 

Costle," that it has the authority to 

exempt from regulation those source 

categories in the area which contribute 

only negligibly to ambient 

concentrations which exceed the 

NAAQS. The EPA believes the court's 

test for invoking the de minimis 

exemption authority would be satisfied 

in circumstances where a State 

demonstrates conclusively that, because 

of the small contribution of the source 

category's emissions to the 

nonattainment problem, the imposition 

of additional controls, such as BACM. 

on a particular source category in the 

area would not contribute significantly 

to the Act's purpose of achieving 

attainment of the NAAQS "as 

expeditiously as practicable." The EPA 

will have to determine from the record 

that, with respect to pa;ticular serious 

area PM-10 source categories which 

contribute to omissions in excess of the 

NAAQS, requiring application of BACM 

would produce an insignificant 

regulatory benefit. 

The EPA will, in general, rely on the 

criteria applied under new source 

permitting programs (40 CFR 51.165(b)) 

to determine when a source category 

contributes significantly to violations of 

the NAAQS in a PM-10 serious 

nonattainment area. The criteria will 

also be applied spatially and temporally 

in the same way it is under new source 

permitting pro rams.J5 

As discusse 'f above, a moderate PM10 nonattainment area may be 

reclassified as serious based on 

evidence that the area cannot 

practicably attain the NAAQS by the 

statutory attainment date or evidence 

that it has failed to attain by that date. 

The evidence, whether modeled or 

measured, will generally indicate the 

standard (24-hour or annual), the day. 

and the location of tho predicted or 

monitored violation. Therefore, under 

this policy, a source category (see 

footnote 33) will be presumed to 

"The inherent authority ofadministrative 

agoncies to exempt de minimis situations from a 

statutory command has been upheld in contexts 

whore an agoncy is invoking a de minimis 

exemption as "a tool to be used in implon~enting 

tho Iogislativo dosign" on the ground that "the 

burdons of rogulation yield a gain of trivial or no 

value" [Alabon~a Power Co. v. Coslle. 636 F.2d 323. 

360-61 (U.C. Cir. 1979)). 

3sSoe "Interpretation of 'Significant 

Contribution."' memorandum from Richard C. 

Rhoads to Alexandra Smith. December 16. 1080. 

OAQPS Policy and Guidance Notebook. PN 165- 

80-12-lM7. 

contribute significantly to a violation of 

the 24-hour NAAQS if its PM-10 impact 

at the location of the expected violation.' 

would exceed 5 pgtm3. Likewise, a 

source category will be presumed to 

contribute significantly to a violation of 

the annual NAAQS if its PM-10 impact 

at the time and location of the expected, 

violation would exceed 1 pplm3. 

Procedures for identifying source 

categories that continue to significantly 

affect the air quality of a serious area 

(even aRer RACM (including RACT) are 

implemented) and procedures for 

identifying the appropriate mix of 

control measures applicable to those 

source categories are discussed below irb 

subsection E. 

4. BACM Analysis Independent of 

Attainment Analysis 

The overall structure and purpose of 

title I of the amended Act, the standard 

suggested by the word "best," and the 

differences in the statute between the 

requirements for BACM as compared to 

those for RACM, lead EPA to believe 

that, unlike RACM, BACM are to be 

established generally independent of an 

analysis of the attainment needs of the 

serious area. 

As noted earlier in this section, the 

overall structural scheme throughout 

title I of the Act is to reauire the 

implementation of increasingly 

strineent control measures in areas with 

mor~serious pollution problems, while 

providing such areas additional time to 

attain the applicable standards. These 

tougher measures are deemed necessary 

in cases where it appears that less 

stringent controls will be insufficient to 

reduce emissions in an area to the level 

of the NAAQS. As described above, the 

fact that the Act requires the applicatior, 

of control measures that are 

"reasonable" in moderate PM-10 areas 

and control measures that are "best" 

whenever it is determined that a 

moderate area cannot "practicably" 

attain or actually fails to attain the 

NAAQS and is therefore reclassified as 

serious, strongly suggests that BACM is 

intended to be a more stringent standard 

than RACM. Thus, it is reasonable to . interpret the statute as requiring a 

different analysis for determining 

BACM from the practice of analyzing 

RACM according to what is reasonable 

in light of the overall attainment needs 

of the area. Moreover, when comparing 

the terms "reasonable" and "best" as 

applied to control measures, the word 

"best" strongly implies that there 

should be a greater emphasis on the 

merits of the measure or technology 

alone and less flexibility in considering 

other factors. 

VerDale 00AUG-94 13.39 Aug 15. 1994 JM 150257 PO OOOOO Fnn 00022 Fnd 4702 Shn14702 E:\FR\FM\PIGAU2.PTI pl6pll 
42012 Federal Register 1 Vol. 59, No. 157 1 Tuesday, August 16, 1994 1 Proposed Rules 

. - 

Additionally, for PM-10 areas 

reclassified as serious before the 

moderate area attainment date, States 

have up to 4 years, under section 

189(b)(2). in which to submit their 

serious area attainment demonstration. 

However. under section 189(b)(2), States 

have only 18 months after 

reclassification from moderate to serious 

to submit their plans requiring the use 

of BACM for those same areas. Thus, for 

such areas. Congress provided a 

difference of as much as Z1/2 years 

Setween the required date for 

submitting BACM plans and the date by 

which to submit a new attainment 

demonstration satisfying the 

requirements of section 189(b)(l)(A]. 

 his pronounced difference in timing 

for the serious area submittals described 

above is to be contrasted with the timing 

for submittal of similar provisions for 

moderate areas. Under section 189(a)(2). 

both the RACM plans and the 

attainment demonstration for moderate 

PM-10 areas must as a genera! matter bo 

submitted ot tho sonro time. Tho fact 

that the Act requires BACM to be 

adopted and implemented by an 

appreciable time before the attainment 

demonstration is required, for areas that 

are reclassified before the muderate area 

attainment date, suggests that Congress 

intended that BACM determinations be 

based more on the feasibility of 

implementing the measures rather than 

on an anolysis of the attainment needs 

of the area.:S6 Therefore, the steps 

described below for making a BACM 

determination are intended to be carried 

out independently frorn the analysis to 

determine the eniission reductions that 

would be necessary to attain the 

NAAQS by the statutory deadline. If the 

attainment demonstration for the area 

subsequently shows that BACM will 

bring the area into attainment before the 

statutory deadline, then the plan 

provides for expeditious attainment of 

the NAAQS. However, if the BACM are 

not adequate to provide for attainment 

of the standards, then the State must 

submit additional measures with the 

attainment demonstration that will 

result in attainment of the standard by 

the statutory deadline or apply for an 

extension of the attainment date by 

demonstrating that the specific 

'"Tht! El'A lx!lievcs this interpretation of the Acl 

is re~~s(~nnt~le. cveli if. as to ortws which nro 

~Iassifi~vl inIhe futr~re ns serious I'M-10 

nonattainment aroas because tho HrnHs hnvo fniled 

to nttnin. tlit! rlate DACM 1)I~ns must bo submitted 

nnll tho (Int~ tho seriolts nrna altninrnent 

d~?rnonstrntinn is duo should Ilnppnn to coincide. 

Thcre is no r~tional t~sis far interproling DACM 

differently depending mrrcly on when an area 

happens to hc reclnssified. 

conditions of sections 108(e) and a. Major point sources (i.e.. sourceb.. 

189Ibl[llIAl[iil have been met. with the ~otential to emit at least 70 ' - 

D. Procedures for Determining Best 

Available Control Measures 

1. Inventory Sources of PM-10 and PM10 Precursors 

The BACM (including BACT) 

applicable in a nonattainment area must 

be determined on a case-by-case basis 

since the nature and extent of a 

nonattainment problem may vary within 

the area and from one area to another. 

Nonattainment problems range from 

reasonably well-defined areas of 

violation caused by a specific source or 

group of sources to violations over 

relatively broad geographical areas due 

predominantly to large numbers of 

small sources widely-distributed over 

the area. The BACM are required for all 

source categories for which the State 

cannot conclusively demonstrate that 

their impact is de minimis. As stated 

above, the EPA will generally presume 

the contribution to nonattainment of 

any source category to be do minimis if 

the source catogory causes a PM-10 

impact in the area of less than 5 pg/m" 

for a 24-hour average and less than 1 pg/ 

m3 annual mean concentration. The 

starting point for making a BACM 

determination would be to reevaluate 

the emission inventory submitted with 

the moderate area SIP. Section 172(c)(3) 

of the Act calls for all nonattainment 

areas to submit comprehensive. 

accurate, and current emissions 

inventories and provides for such 

periodic revisions as may be necessary 

to assure that the nonattainment 

planning requirements are met. If there 

have been any significant changes in 

PM-10 sources in the area since the 

inventory was first compiled (i.e., 

sources permanontly shut down or new 

or modified sources constructed) or if 

the inventory is not adequate to support 

the more rigorous analysis required for 

serious area SIP demonstrations, it 

should be revised. All anthropogenic 

sources of PM-10 emissions and PM-10 

precursors (if applicable) and 

nonanthropogenic sources in a 

nonattainment area must be included in 

the emission inventory. 

Because of its importance in 

identifying anthropogenic and 

nonanthropogenic sources and the 

applicabil~y %f BACM requirements, the 

breakdown of sources to consider when 

compiling an emissions inventory are as 

follows: 

"Ambienl filter analysis and inventory 

informlion may have been presented in certain 

moderate area SIP to indicate the insignificance of 

secondary particles [see 57 FR 13541421. 

tons per iear of PM-10 (or PM-10 

precursors) as required in sections 

189(b);3) and 189(e) of the Act). 

b. Minor point source categories. 

c. Area source categories such as 

fugitive dust from anthropogenic 

sources (e.g., construction activities, 

paved and unpaved roads, agricultur*: 

activities, etc.), residential wood ; 

combustion, prescribed burning, and 

commercial/institutional fuel 

combustion. 

d. Nonanthropogenic sources. 

2. Evaluate Source Category Impact 

The second step in determining 

BAChl for an area is to identify those 

source categories having a greater tha,, 

de minimis impact on PM-10 

concentrations. The potential maximu,,, 

impact of various source categories mh; 

have been determined with receptor w, 

dispersion modeling performed for th~ 

attainment demonstration submitted - with the modorato area SIP. In additiq,; 

tho irnpoct of some source categories -- may bo nppnront from nnalysis of *- 

ambient sampling filters from days 

when the standards are exceeded. If 

modeling was not performed during 

developmont of the moderate area SIP. 

receptor modeling, screening modelinb 

or, preferably, refined dispersion . modeling will generally be necessary A,, 

this time to identify key source -- ,. 

categories. 

3. Evaluate Alternative Control 

Techniques 

In developing a fully adequate BAG@ ; 

SIP, the State is expected to evaluate 14,;. 

technological and economic feasibility 

of the control measures discussed in tlr. 

BACM guidance documents and 0th.) , . relevant materials for all source 

categories impacting the nonattainmerab 

area except those with a de minimis 

impact considering emission reductiob. 

achieved with RACM. 

Energy and environmental impacts ~2 

the control measures and the cost of : 

control should be considered in 

determining BACM. In general, for th~ 

reasons stated above, the test of - 

economic and technological feasibility 

will be higher for source categories in 

serious areas than for source categories 

in moderate areas because of the great^, c., 

, , 

'Son "Technical Informati011 Document for 

Residnntial Wood Combustion Besl Available 

Conlrol Moasuros." EPA-45012-82-002. Septom!.. . 

1892: "Proscribed Burning Background and t'" 

Technical Information Document for Bnst A~ailai.~, 

Control Moasures." EPA-45012-92-003, ~n~)tnnllk", 

1992: and. "Fugitive Dust Rackground Documegaf 

and Technical lnfornlation Docunlenl for Best . ' 

Available Control Moasures." EPA-45012-92-0?$, 

September 1892. . . 

v; 

VerOate OQAUG-94 13 39 Aug 15. 1994 Jkl150257 PO 00000 Fn 00023 Fm14702 Slm14702 E.\FR\FM\Pl6AU2 PTI pt6pt1 
Federal Renister 1 Vol. 59, No. 157 1 Tuesday, August 16, 1994 1 Proposed Rules 42013 

need for emission reductions to attain 

the NAAQS. As noted earlier, this 

interpretation is consistent with the 

overall statutory scheme which requires 

that as an area's air quality worsens. 

increasingly stringent control measures 

are to be adopted in conjunction with 

the area receiving more time to attain 

the NAAQS. Thus, measures that were 

not considered reasonable to implement 

by the moderate area attainment date 

may be BACM for serious areas because 

of the additional time available for 

implementing them3" and because of 

the higher degree of stringency implied 

by the statutory scheme and the term 

"best." Therefore. BACM could include. 

though it is not limited to, expanded use 

of some of the same types of control 

measures as those included as RACM in 

the moderate area SIP. 

It does not currently appear that 

mobile sources, as distinct from the 

surfaces on which they travel, 

contribute significantly to the PM-10 air 

quality problem in a sufficient number 

of areas to warrant issuing national 

guidance on best available 

transportation control measures for PM10 under section 190 of the Act. 

However, in those areas where mobile 

sources do contribute significantly to 

PM-10 violations, the State must, at a 

minimum, address the transportation 

control measures listed in section 108(f) 

to determine whether such measures are 

achievable in the area considering 

energy, environmental and economic 

impacts and other costs. 

The technological feasibility of 

reducing emissions from area sources 

depends on the ability to alter the 

characteristics that affect emissions 

from the sources. Those characteristics 

have to do with the size or extent of the 

sources, their physical characteristics 

and the operating procedures. Reducing 

emissions of fugitive dust from 

construction activities, for example, 

could require the most effective 

combination of reducing the size of the 

sources (i.e.. acres cleared at one time or 

vehicle miles traveled on unpaved 

surfaces). changing the physicel 

characteristics (i.e., silt loading on travel 

surfaces or moisture content of materials 

handled], and/or changing the operating 

practices (i.e.. lower vehicle speeds, less 

surface area exposed to the wind, 

treating or paving travel surfaces). 

""rhe statulnry allninmanl date for initial 

niotlarale PM-I0 nonnttainment areas rcclassified 

as serious will hn Uccn~nhnr 31. 2001. Fnr arnas 

designatnd nnnaltsinrncnt subsnquent to enactment 

of thu I990 Amendments thnt bccomn scrious, the 

r~ttr~inmenl dnte will bn bcforn thn nnd of the tenth 

year boginning after the area's designation as 

nc~natlainrnenl (see section IBR(c]l. 

The technological feasibility of 

applying an emission reduction method 

to a particular point source should 

consider the source's process and 

operating procedures, raw materials, 

physical plant layout, energy 

requirements, and any collateral 

environmental impacts (e.g., water 

pol!ution and waste disposal). The 

process, operating procedures, and raw 

materials used by a source can affect the 

feasibility of implementing process 

changes that reduce emissions and the 

selection of add-on emission control 

equipment. The operation and longevity 

of control equipment can be 

significantly influenced by the raw 

materials used and the process to which 

it is applied. The feasibility of 

modifying processes or applying control 

equipment is also influenced by the 

physical layout of the particular plant. 

The space available in which to 

implement such changes may limit the 

choices and will also affect the costs of 

control. 

4. Evaluate Cost: of Control 

Economic feas-ibility considers tho 

cost of reducing emissio~s from a 

particular source category and costs 

incurred by similar sources that have 

implemented emission reductions. As 

with RACT determinations and BACT/ 

LAER analyses in other statutory 

contexts. EPA believes that for PM-10 

BACM purposes, it is reasonable for 

similar sources to bear similar costs of 

emission reduction. As such, when 

identifying BACM, consideration of 

economic feasibility should not rely on 

claims regarding the ability of a 

particular source to "afford" to reduce 

emissions to the level of similar sources. 

Otherwise. less efficient sources might 

be rewarded for their inefficiency by 

being allowed to bear lower emission 

reduction costs. Instead, economic 

feasibility for PM-10 BACM purposes 

should focus upon evidence that the 

control technology in question has 

previously been implemented at other 

sources in a similar source category 

without unreasonable economic 

impacts. 

Where the economic feasibility of a 

measure (e.g.. road paving) depends on 

public funding. EPA will consider past 

funding of similar activities as well as 

availability of funding sources to 

determine wheth-er a good faith effort is 

being made to expeditiously implement 

the available control measures. In other 

words, if 20 miles of unpaved roads are 

typically paved each year, then the 

BACM fugitive dust program should 

include paving more than 20 miles per 

year of existing roads and should offer 

evidence of ambitious efforts to increase 

funding and increase the priority for use 

of existing funds. 

The capital costs, annualized costs, 

and cost effectiveness of an emission 

reduction technology should be 

considered in determining its economic 

feasibility. The "OAQPS Control Cost 

Manual, Fourth Edition." EPA-45013- 

90-006, January 1990, describes 

procedures for determining these costs. 

The above costs should be determined 

for all technologically-feasible emission 

reduction options. 

E. Selection of BACM for Area Sources 

Once the significant PM-10 area 

source categories have been identified, 

the State should select area source 

control measures from the candidate 

BACM listed in the technical 

information documents for fugitive dust, 

residential wood combustion [RWC]. 

prescribed burning, or any other 

technical information documents issued 

by EPA [see footnote 38). This guidance 

is based on EPA's analysis of available 

control alternatives for tho identified 

sourco categorios. While the guidance is 

intended to be comprehensivo, it is by 

no means exhaustive. Consequently, the 

State is encol~raged to consider other 

sources of information and is not 

precluded from selecting other measures 

and demonstrating to the public and 

EPA that they constitute BACM. 

Further, any control measure that a 

commenter indicates during the public 

comment period is available for a given 

area should be reviewed by the planning 

agency. The agency should determine 

whether the affected categories of 

sources are significant and, if so, 

whether the available measure is 

achievable in the area considering 

energy, environmental, and economic 

im acts and other costs. A: stated earlier. EPA considers 

measures that prevent PM-10 emissions 

over the long term to be preferable to 

short-term curtailment measures. 

Therefore. when selecting BACM for 

area sources, a State should first 

consider pollution preventive measures 

and measures that provide for long-term 

sustained progress toward attainment in 

preference to quick, temporary control. 

For example, a State should consider 

requiring the replacement, over time, of 

old wood stoves with cleaner-burning 

wood stoves or alternative fuels. Such 

programs would complement and 

reduce dependance on wood-burning 

curtailment programs adopted as RACM 

for the moderate area SIP. However, 

EPA recognizes that such long-term 

measures may entail significant lead 

time and that temporary measures like 

wood-burning curtailments may need to 

be continued in serious areas. at a 
42014 Federal Register / Vol. 

minimum, to provide interim health 

protection. 

Once the list of available measures for 

an area source has been identified, the 

State must evaluate the technological 

and economic feasibility of 

implementing the controls. The State 

may refer to the technical information 

documents for procedures to determine 

feasibility. 

When evaluating economic feasibility, 

States should not restrict their analysis 

to simple acceptancelrejection decisions 

based on whether full application of a 

measure to all sources ina particular 

category is feasible. Rather, a State 

should consider implementing a control 

measure on a more limited basis, e.g., 

for a percentage of the sources in a 

catpgory if it is determined that 100 

percent implementation of the measure 

is infeasible. l'his would mean, for 

example, that an area should consider 

the feasibility of paving 75 percent of 

the unpaved roadways even though 

paving all of the roads may be 

infoosi1)le. Altarnativcly, the Stote 

shoul(i considcr whothar nleosuros 

which cannot feasibly be implemented 

in their entirety prior to the statutory 

deadline for BACM implementation 

could be completed over an extended 

period. In that event, BACM might itself 

be defined to change over time from a 

more limited set of measures at the 

initial implnmentotion date to a 

progressively tighter or more ambitious 

pro ram at later dates. 

T a e following example is presented to 

illustrate how a moderate area program 

or RACM for fugitive dust control may 

be complemented with additional 

RACM after the area is reclassified as 

serious. Assume that the following 

control measures were adopted as 

RACM: 

1. Reduce the speed limit on unpaved 

county roads to 25 miles per hour. 

2. Treat all unpaved county roads. 

monthly, with chemical dust 

stlppressants within 500 feet of their 

intersections with paved roads. 

3. Treat 10 milas of the most heavilytravaled, unpaved county roads with 

chemical dust suppressants once per 

month. 

4. Pave 4 miles of unpaved city 

streets. 

5. Treat unpaved parking lots in the 

city with chemical dust suppressants 

once per month. 

6. Clean anti-skid materials from 50 

milos of city streets within 48 hours 

aftcr snow melt begins. 

The same area. after baing reclassified 

as serious. may adopt the following 

59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 

BACM examples to complement the representative range of available 

RACM program: 40 controls (including the most stringent, 

1. Pave 10 miles of the most heavily- those capable of meeting standards of 

traveled, unpaved county roads. performance under 40 CFR part 60 or 

2. Treat 10 miles of unpaved county 61. and those identified by commenters 

roads with chemical dust suppressants during the public comment period). 

once per month. Selection of a particular control system 

3. Pave 25 unpaved county roads as BACT must be justified by a 

within 500 feet of their intersections comparison of the candidate control 

with paved roads. systems considering energy, 

4. Chemically treat or pave both environmental, and economic impacts, 

shoulders of 30 miles of State highways and other costs, and be supported by th~. 

within the county. record. 

5. Pave all parking lots within the In addition, if the reviewing authority 

city. determines that there is no 

6. Revise the specifications for winter economicall~-reasonable or 

anti-skid materials to require cleaner, technologicall~-feasible way to 

less friable materials, and reduce the accurately measure the emissions, and 

quantity used per lane-mile. hence to impose an enforceable 

7. Require crop rotations on highly emissions standard, it may require the 

erodible lands. source to use design, alternative 

8. Retire highly erodible sections of work practice, or 

farmland and plant indigenous operational standards to reduce 

vegetation as a cover instead of leaving emissions of the pollutant to the 

land fallow. maximum extent feasible [see, by 

9. Plant crops and windbreaks across 49 CFR 52-21fi)[12); 40 CFR 

tho provailing wind direction on highly 51~16fi(b~(~2)~* 

erodible lands. Altarnative approaches to roducing 

In summary, the State must document emissions of particulate matter 

its selection of BACM by showing what including PM-10 are discussed in 

control measures applicable to each "Control Techniques for Particulate 

Emissions From Stationary Sources" - category (not shown to be de V~lume I (EPA-45013-811005a) and minimis) were considered. The control Volume I1 (EPA-45013-81-005b1, 

measures preferably be September 1982. The design, operation, 

measures that will prevent PM-10 

emissions rather than temporarily and maintenance of general particulate 

reduce them. The documentation matter control systems such as 

mechanical collectors, electrostatic should compare the ccntrol efficiency of precipitators, fabric filters, and wet 

technologically-feasible measures, their scrubbers are discussed in Volume I. 

energy and environmental impacts and The collection efficiency of each system the costs of implementation. is discussed as a function of particle 

F. Selection of RACT for Point Sources size. Information is also presented 

The reviewing authority determines regarding and environmental 

BACT on a case-by-case basis. As considerations and procedures for 

described above, EPA expect the estimating particulate matter 

reviewing authority to select an control equipment. The emission 

emissions limitatioll that the characteristics and control technologies 

maximum degree of emission reduction applicable to specific source c~tegories 

of each pollutant subject to regulation are discussed in 'I. Secondary 

[PM-10 andlor PM-10 precursors), environmental impacts are also 

taking into account energy. discussed. 

environmental, and economic impacts The BACTILAER Clearinghouse, the 

and other costs, that it determines is EPA Control Technology Center, and 

achievable for such facility. past BACT analyses for new and 

modified major sources under the PSD In light of preceding discussions of 

program may be used to in RACT and its statutory bases. it is EPA's available control options policy that BACT be determined using and maximum achievable emission the analytical methodology established reductions. The EPA will continue to in the reviewing authority's current PSD evaluate the need for additional program to the extent that it is guidance and will produce additional consistent with guidance contained in materials as appropriate. this notice. The anelytical methodology 

used should, at a minimum, considcr a VII. Contingency Measures 

Section 172(c)(9) requires that SIP'S 

'"Adol~tion of these types of measures may 

roquire coordination with other local governmental provide for the implementation of 

entities such as the Duparlments of Agriculture. be undertaken if 

Tmnsporletion. andlo& Interior. - the A(ln1inistrotor finds that the 

-, 

Federal Register 1 Vol. 59, No. 157 1 Tuesday, August 16, 1994 1 Proposed Rules 42015 

nonattainment area has failed to make about attainment. The EPA has Section 171(1) of the Act defines RFP as 

RFP toward attainment or to attain the recommendad that contingency "such annual incremental reductions in 

primary NAAQS by the applicable measures provide the emission emissions of the relevant air pollutant as 

statutory deadline. Following the reductions equivalent to 1 year's average are required by this part (part D) or may 

Administrator's finding, the measures increment of RFP (see discussion reasonably be required by the 

are to "take effect without further action below). Administrator for the purpose of 

by the State, or the Administrator." The Once moderate areas are subsequently ensuring attainment of the applicable 

EPA interprets this requirement to be reclassified as serious, tho affected national ambient air quality standard by 

that no further rulemaking actions by States must ensure that adequate the applicable date." A discussion of 

the State or EPA would be needed to contingency measures, as doscribed these requirements follows. 

implement the contingency measures above, are in place for such areas. This 

(see generally 57 FR 13512 and 13543- is explicitly required under the statute. ' Progress 

544). The EPA recognizes that certain Section 189(b)(l) reql-lires areas Historically, for some pollutants, RFP 

actions, such as the notification of reclassified us serious to submit "an has been met by showing annual 

sources, modification of permits, etc., implementation plan." Under section incremental emission reductions 

would probably be needed before a 172(c), in turn, "plan provisions" sufficient generally to maintain at least 

measure could be implemented required under part D must provide for linear progress toward attainment by the 

effectively. However. States must show the implelnentation of contingency specified deadline. Requiring linear 

that their contingcricy meastires can be measures. Accordingly, for those progress reductions in emissions to 

implomcntcd with minimal furthor moderate areas reclassified as serious, if maintain RFP may be appropriate in 

action on their part and with no a11 or part of the moderate area plan four situations: 

additional rulemaking actions such as contingency measures become part of 1. When pollutants are cmittod by 

public hearings or lcgislativo rcviow. the required serious area control numerous and diverse sources. 

After EPA determines that a moderate measures (i.0.. BACM), then additional 2. Where the relationship between 

PM-10 nonattainmcnt area has failed to contingency measures must be any individual source and the overall 

attain the PM-10 NAAQS. EPA submittod whether or not the previously air quality is not explicitly quantified. 

generally oxpects all actions nccdod to submitted contingency measures had 3. Where a chemical transformation is 

effect full implementation of tl~o already been implemented. Further, the involved. 

measures to occur within 60 days after affected Statos must ensure that serious 4. Where the emission reductions 

EPA notifies the State of the area's areas have adequate contiilgcncy necessary to attain the standard are 

failure. The State should ensure that the measures considering, among other invcntory-wide. 

measures are fully implemented as things, new information about the For examp!.e, in those areas where the 

expeditiously as practicable after they potential attainment shoitfall for the nonattainmcnt problem is attributed to 

take effect. newly reclassified serious area. The area type sources (e.g., fugitive dust, 

'The purpose of contingency measures States must submit contingency residential wood combustion, etc.), RFP 

is to ensure measures measures for serious areas or otherwise should be met by showing annual 

tlcyond or in addition to the demonstrate that adequate measures are incremental emission reductions 

"core" control measures [i.e. RACM for in place within Pars sufficient generally to maintain linear 

moderate areas and BACM for serious progress towards attainment. 'Total PMareas) immediately take effect when the ~111. ~~~~tit~ti~~ ~il~~t~~~~ and 10 emissions should not remain 

area fails to make RFP or to attain the ~~~~~~~bl~ ~~~th~~ progress 

constant or increase from 1 year to the 

PM-10 NAAQS in order to provide next in such an area. 

interim public health and welfare A. General Discussion Requiring linear progress reductions 

protection. The protection is considered The PM-10 nonattainment area SIP'S in emissions to maintain RFP is less 

"interitn" because the statute often must include quantitative milestones provides for a more formal SIP revision which are to be every 3 years 1. Wllere there are a limited number 

in order to correct, for example, the until the area is redesignated attainment 

failure of an area to attain the PM-10 and which demonstrate RFP toward 2. Where the relationships between 

NAAQS (e.g.. section 1 A9(1))-serious attainment by the applicable date (see individual Sources and air quality are 

area plan required upon finding of section 189(c) of the amended Act). relatively well defined. 

faillire of n~odorate area to attain the 3. Where the emission control systems 

PM-10 NAAQS under 188(b)(2)-and 41 ~ho Clean Air ~ct dons not prescribe when (e.g., at major point sources) 

189(d) revisions required upon States containing serious PM-10 nonattainment will res~lt in swift and dramatic 

failure of serious to attain the PM- areas shall submit section 172(c)(9) conlingency emission reductions. 

10 NAAQS)). Thus. EPA has noted measures (or otherwise demonstrate that adequate F~~ in those where the 

contingoncy measures are already in place). 

previously that contingency measures However, section 172Ib) of the ACI directs the PM-10 nonattainmcnt problem is 

should consist of Administrator to establish a schedule for submittnl attributed to a few stationary sources, 

measures not contained in the of tho plnn items in section 172(c) at the time the RFP shoul[i be met by "adherence to an 

Administrator designates an area as nonaltainmenl. compliance 42 a~~licabie core strategy (57 FR Such scl~edulo is lo include a date or dates 

1:3543). In designing its conlingoncy "extending no later than 3 years from the date of which is likc!y to P~~~

yield 

nl(?asuros, the Stato should also take into the rionattainmont designation" (see section 172(b)). Significant emission reductions. 

(;()llsi(jcrotion the !,otential rial urc and BY ~~"I[)KY- El'ACO~CIU~O~ it 1s rea~onable to Adherence to "an ambitious compliance establish that the formal dendline for the submittal docs not c?xtont of any atlainnlent shortfall for the of 172(c1[9) conlinRoncy (or a 

area. The magnitude of the effectiveness domonstrntion that adequate contingoncy measures that it achieve 

of tho measures should IJC calculated to are in place1 by Stales containing serious PM-10 

the approprinte perct,nlagc of noriattainniont areas is no lator than 3 years from 'lU.S. El'A. Office of Air Quality I'lanning and 

tho i111le ol the serious area reclassificstion (see Standards. "Guidance Document for Correction of 

Chcvrorr. U.S.A.. Irrc. v. NRDC. 467 US. 837. 842- Part D SIP'S for Nonaltoinmt?n! Arcas." Research 

by the SIP control strategy lo bring 45 (1984)). Triangle Park. NC, lant~r~ry 27. 1984. page 25. 

VetDale 09-AUG-94 13.39 Aug 15.1994 JM 150257 PO 00000 Frrn 00026 Fml4702 Slmt 4702 E:WR\FhnPIGAU2.P?1 p16pl1 

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42016 Federal Register I Vol. 59, No. 157 I Tuesday, August 16, 1994 I Proposed Rules 

annual incremental emission reductions b. Percent compliance with for the moderate area SIP.43 Therefore.' . 

or generally linear progress, however. implemented control measures. the second RFPImilestone for the initial 

Tho SIP'S for PM-10 nonattainment c. Adherenco tn a complianca nonattainment areas that are reclassifiecj 

areas must include detailed schedules schedule. as serious must be achieved by . c 

for compliance with emission 2. RFPIMileslone Due Dntes November 15,1997. The third RFPI ".: 

regulations in the areas and accurately milestone achievement date will be 

indicate the corresponding annual As mentioned above, PM-10 November 15, 2000, etc, These RFPI :, 

emission reductions to be realized from nOnattainment are milestones should be addressed by each milestono in the schedule. In quantitative milestones which are to be quantifying and comparing the annual .' 

reviewing the SIP, EPA will determine achieved every 3 Years until the area is incremental emission reductions which 

whether the annual incremental redesignated attainment. There is a gap result from implementation of BACM/.' 

emission reductions to be achieved are in the law in that the text of section BACT (required within 4 yoars after th? 

reasonable in light of the statutory 189(c) does not articulate the starting area is reclassified as serious) and fro^ 

objective to ensure timely attainment of point for counting the 3-year period. additional measures included in the '.' 

the p~-~~ NAAQs. Additionally, EPA The EPA believes it is reasonable to final serious area SIP to those 

believes that it is appropriate to require begin the 3-Year reductions which were identified in thb 

early implementation of the most cost- deadline from the due date (and not the SIP as quanti!ative milestones necessarj 

effective control measures (e.g., submittal date) for the applicable to achieve the NAAQS by the applicable 

controlling fugitive dust emissions at moderate area im~lementation plan attainment date. The annual 

[he while phasing in rovision (see section III.C.l.(fJ of the incremental emission reductions must ; 

the more expensive control measures, (57 FR 13539) for an be sufficient 10 assure attainment as - 

such as those involving the installation of EPA believes it is expeditiously as practicable but not .'. 

of new hardware. appropriate to begin counting the 3-Year later than December 31.2001. In some 

Section 189(c) provides that the milestone deadline from the SIP due cases it may also be appropriate to ; 

quantitative milestones submitted by a date]. require that the annual incremental ,, 

State for an area also must be consistent The first "RFPImilestone" emission reductions maintain at least achievement date for those areas RFP linear progress toward attainment, as lor the area' Thus' EPA initially designated as nonattainment for determine an area's compliance with discussed earlier. 

PM-10 by of law when the RFP in conjunction with determining its 

compliance with the quantitative Act was amended will be the moderate 3. RFPlMilestone Report 

milestone requirement. Because RFP is area attainment date of December 31, The State must demonstrate to EPA. 

1994, as stated in section 1II.C.l.f. of the within 90 days after the milestone an annual emission reduction 

requirement and the quantitative General Preamble (57 FR 13539). The achievement date, that the SIP measurc I 

RFPImilestone achievement date would are being implemented and the RFP/ . 

mi'estones are be achieved every normally be November 15.1994.3 years quantitative milestones have been met . years' when a State an after the SIP due date of November 15, [see section 189[~][2)]. The RFPI area's compliance with the quantitative 1991. The achievement date was milestone report must be submitted . requirement' it delayed 46 days, however, because the from the Governor or Governor's demonstrate that RFP has been achieved de minimis timing differential between during each of the relevant 3 years. designee to the Regional Administrator 

the attainment date and the literal first of the respective EPA Regional Office Thus' the discussion of quantitative milestone date made it administratively which serves the State where the milestones below refers to the "RFPI impracticable and of trivial value to affected area is located. milestone" submittal dates, require separate milestones and The RFPImilestone repcrt must achievement dates and demonstration attainment demonstrations for these contaiii technical support sufficient to (or reporting) requirements. areas. Thus, for these initial areas that document completion statistics for 

C. Quantitative Milestones demonstrate timely attainment, EPA's appropriate milestones. For example. 

policy is to deem the emission the demonstration should graphically Nature of Quantitative reductions progress made between the display RFP over the course of the 

As mentioned above. PM-10 SIP submittal due date and the relevant 3 years and indicate how the 

nonat tainment SIP'S are to contain attainment date as sufficient to satisfy emission reductions achieved to date 

quantitative milestones (see section the first milestone requirement (57 FR compare to those required or schedule(i 

189(c)). These quantitative milestones 13539). to meet RFP and the required 

should consist of elemnnts which allow Thus the initial RFPImilestone will be 

progress to be quantified or measured. met by showing that emission .>The plain terms of section 189(c) require that 

Specifically. States should identify and reductions scheduled to be made milostones be achieved "every 3 years until the are, 

sul)mit quantitative milestones between the SIP due date and the is redesignated attainment" and. therefore, do not 

contemplate any breaks in the milestones due to ar. providing for the amount of emission attainment date for these moderate areas aroavs reclassification. Further. rec~assifying an aro) 

reductions adcquate to achieve the were actually achieved. Most of the to sorious does not obviate the State from controIr'" 

NAAQS and emission reductions required in the moderate by the applicable attainment emission reductions wi!l result from area implomon,alion (see section 189(b)(l,), 

date. The following are examples of RACM continuous serios of control measures must be : 

measures which support and RACT) adopted as part of the moderate implemented in PM-10 nonattainment areas " 

demonstrate how the overall area SIP. The Act requires that RACM be boginning with RACM (including RA~) and :i 

quantitntive milestones illentilied for an implemented by December 10, 1993 in ~~~~~$~~~~~~J~~P,"

area may be met: the initial PM-10 nonattainment areas N,,,, BACM (including DA~) must be 

a. Percent implementation of various [see section implonionted within 4 years after the area is 

control strategies (e.g., pave 50 percent Subsequent RFPImilestones for these reclassified as serious. Subsequently. it may be 

of 

residential 

culpable streets. replace 

wood heaters with natural 

75 percent of 

are 

initial 

reclassified 

PM-10 nonattainment 

as serious will be 

areas 

due 

that ~~~7~~~~2~~~",~

Therefore, the of the Act requires a serier' 

gas heating units). every 3 years after the original due date of measures which can provide for RFPlmilestoner., 

-- VerDate 09-AUG-94 1399 Aup 15.1994 Jkl150257 PO OOOOO Frm 00027 Fm14702 Slm14702 E:\FR\FM\P16AUZ.PTl p16pll 
Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules 42017 - 

milestones. The calculations (and any economy, a sector of the economy, EFFECTIVE DATE: August 16,1994. 

assumptions made) necessary to productivity. com etition, jobs, the P FOR FURTHER INFORMATION CONTACT: 

dotormino tho omission roductlons to onvlronmont, pub IC health or Sofoty, or Shnron p. McDonald, Moss Moc\iu ~latci nI1o\11(1 IIIWO 11(1 n~~l~~~litto(l. TI111 nlntn, lacnl, or tribal govnnrmsnt or Dt~roau, (202) 034-0530. 

tla~~~ouwtrc~tlo~~ nhoultl nlxo contnln nn comn\~inltlos; 

ovc~l\ietlon of whuthor tho I'M-10 2. cruoto a sorlous lnconnlnto~~cy or SUPPLEMENTARY INFORMATION: Naotl for 

NAAQS will bo attainod by tho Corroct ion. othorwlso intorforo with an action takon As published, tho Notice tho projocted attainment dato in the SIP, or plannod b another a oncy; 

3. matorialh alter the%udgotary wrong rulemaking number which needs i.e.. answer the question "Are the 

emission reductions to date sufficient to impact of entitlements, grants, Usel' fees, to be corrected' 

or loan programs or the rights and Correction of Publicntion. 

ensure timely attainment'?" 

Within 90 days of its receipt, EPA obligations of recipients thereof; or Accordingly, the publication on July 

4. raise novel legal or issues 25, 1994 of the Public Notice regulations must determine whether or not the 

State's democs!ration is adequate and arising out of legal mandates* the (MM Docket No. 94-74) which were the 

meets all the requirements diwussed President's priorities, or the principles FR 94-179921 is 

above. The EPA will notify the State of Set forth in the Executive Order. corrected as follows: 

its determination by sending a letter to Pursuant lo the of E.O. 12866* On page 37737, in the third column. 

the appmpriate Governor or Governor.s OMB has notified EPA that this action under r7 CFR Part 73. the rulemakine 

designee. is a "significant regulatory action" number is corrected to read "RM-8503" 

within the meaning of the Executive in lieu "RM-8476." 

4. Failure to Submit RFPlMilestone Crder. For this reason, this action was Federal Communications Commission. 

Report or Meet RFPlMilestones submitted to OMB for review. Changes williarn F, caton, 

If a State fails to submit the RFPI made in response to OMB suggestions or Acting secretory. 

milestone report within the required be [FR 94-19989 Filed &15-g4: 8:45 

timeframes or if EPA determines that in the public record. 

BILLIHQ CODE 8712-41-~ 

the State has not met any applicable B. RegulatoryFlexibility ~,-t RFPlmilestone. EPA shall require the 

State. within 9 months after such failure the Agency is required by 

or determination, to submit a plan section 553 of the Administrative DEPARTMENT OF THE INTERIOR 

revision that assures that the State will Procedure Act (APAI or any other law and Wildlife 

achieve the next milestone (or attain the to publish general notice of proposed 

PM-10 NAAQS, if there is no next rulemaking for any proposed rule, the 50 CFR part 20 

milestone) by the applicable date (see Agency propose and make 

set:lion 189(c)(3)). For example, with available for public comment an initial RIN 1018-AA24 

respect to RFP, if the required annual re~ulatory The 

emission reductions are not achieved for regulatory flexibility requirements do Bird Hunting: 

the relevant years according to the RFP for this PM-10 serious area Migratory Bird Hunting Regulations on 

addendum to the General Preamble Certain Federal Indian Reservations schedule and the implementing 

milestone requirement, EPA will require it is not a regulatory action in and Ceded Lands for the 1994-95 

the State to submit a SIP revision so that the context of the APA or the Regulatory 

these deviations can be corrected and Act. AGENCY: Fish and Wildlife Service, 

attainment assured by the applicable Dated: July 29. 1994. Interior. 

date. This would also necessitate Carol M. Browner, ACTION: Proposed rule. implementation of ~ppropriate Administrator. 

contingency measures pursuant to IFR DOC. 94-19884 Filed &IS-94; SIJFAMARY: This rule proposes special 

section 172(c)(9). BILLING CODE 0560404 migratory bird hunting regulations that 

Note also that failure to meet RFP, if would be established for certain tribes 

not expeditiously corrected, could also - on Federal Indian reservations, offresult in the application of sanctions as FEDERAL COMMUNICATIONS reservation trust lands and ceded lands 

described in sections 110(m) and 179(b) COMM~SS~ON for the 1994-95 migratory bird hunting 

of the amended Act (pursuant to a season. 

finding under section 179(a)(4)). 47 CFR Part 73 DATES: The comment period for these 

IX. Other Requirements [MM Docket No. 94-74; RM-84761 proposed regulations will end August 

31, 1994. 

A. Executive Order 12866 Radio Broadcasting Service; Elrna, WA ADDRESSES: Address Comments to: 

Under Executive Orcier 12866 (E.O. 

12866) (58 FR 51.735 (October 4, 1993)), 

\he Agency must determine whether the 

regulatory action is "significant" and 

therefore subject to the Office of 

Management and Budget (OMB) review 

and the requirements of E.O. 12866. The 

E.O. 12866 defines "significant 

regulatory action" as one that is likely 

to result in a rule that may: 

1. Have an annual cffcct on the 

economy of $100 million or more or 

adversely affect in a material way the 

AGENCY: Federal Communications 

Commission. 

ACTION: Prouosed rule; Correction. 

SUMMARY: This document contains a 

correction to the Notice of Proposed 

Rule Making (MM Docket No. 94-74; 

RM-84761, which was published 

Monday, July 25,1994 (59 FR 37737). 

The Notice proposed the allotment of 

Channel 271A at Elma, Washington, as 

the community's first local aural 

transmission service. 

Director (FWSfMBMO), lJ.S. Fish and 

Wildlife Service, 634 ARLSQ, 1849 C 

St., NW, Washington, DC 20240. 

Comments received, if any, on these 

proposed special hunting regulations 

and tribal proposals will be available for 

public inspection during normal 

business hours in Room 634-Arlington 

Sq~lare Building, 4401 N. Fairfax Drive. 

Arlington. VA. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Keith A. Morehouse. Office of Migratory 

Bird Management. U.S. Fish and