48718 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

1Plan for Attainment of the 24-hour PM–10 

Standard—Maricopa County PM–10 Nonattainment 

Area, Arizona Department of Environmental 

Quality (ADEQ), May, 1997, submitted May 9, 1997, 

approved in part and disapproved in part on August 

3, 1997 (62 FR 41856).

2Serious Area Committed Particulate Control 

Measures for PM–10 for the Maricopa County 

Nonattainment Area and Support Technical 

Analysis, MAG, December 1997, submitted 

December 11, 1997.

3Revised Maricopa Association of Governments 

1999 Serious Area Particulate Plan for PM–10 for 

the Maricopa County Nonattainment Area,

February 2000, submitted February 16, 2000. On 

January 8, 2002, Arizona submitted revisions to the 

Maricopa County’s commitments to improve its 

fugitive dust rule which were in this plan.

4 Maricopa County PM–10 Serious Area State 

Implementation Plan Revision, Agricultural Best 

Management Practices (BMP), ADEQ, June 2000, 

submitted on June 13, 2001.

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[AZ092–002; FRL–7141–3] 

Approval and Promulgation of 

Implementation Plans; Arizona—

Maricopa County PM–10 

Nonattainment Area; Serious Area Plan 

for Attainment of the PM–10 Standards

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving the serious 

area particulate matter (PM–10) plan for 

the Maricopa County portion of the 

metropolitan Phoenix (Arizona) PM–10 

nonattainment area. We are also 

granting Arizona’s request to extend the 

Clean Air Act deadline for attaining the 

annual and 24-hour PM–10 standards in 

the area from 2001 to 2006. Finally, we 

are approving Maricopa County 

Environmental Services Department’s 

fugitive dust rules, Maricopa County’s 

Residential Woodburning Restrictions 

Ordinance, and commitments by 

Maricopa County jurisdictions to 

implement PM–10 controls.

EFFECTIVE DATE: August 26, 2002.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Office of Air Planning 

(AIR–2), U.S. Environmental Protection 

Agency, Region 9, 75 Hawthorne Street, 

San Francisco, California 94105. (415) 

947–4155, email: 

wicher.frances@epa.gov.

This document and the Technical 

Support Document are also available as 

electronic files on EPA’s Region 9 Web 

Page at http://www.epa.gov/region09/

air.

SUPPLEMENTARY INFORMATION:

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. This 

supplementary information is organized 

as follows:

I. Summary of Today’s Actions 

II. The Serious Area PM–10 Plan for the 

Phoenix Area 

III. Proposals for and Information Related to 

Today’s Actions 

A. The Proposals for Today’s Actions 

B. Already-Approved Elements of the 

Phoenix Serious Area PM–10 Plan 

C. Effect of Today’s Actions on the 1998 

Federal PM–10 Plan for the Phoenix 

Area 

D. Clean Air Act Sanctions in the Phoenix 

Area 

E. EPA’s Policies on Approving Serious 

Area PM–10 Plans and Granting 

Attainment Date Extensions 

IV. Response to Comments on the Proposed 

Actions 

A. Comments on EPA’s Policy on 

Approving Serious Area PM–10 Plans 

and Granting Attainment Date 

Extensions 

B. Comments on EPA’s Detailed Evaluation 

of the Phoenix Serious Area PM–10 Plan 

V. Final Actions

A. Approval of the Serious Area Plan 

B. Extension of the Attainment Date 

C. Approvals of Rules and Commitments 

D. Correction of Previous SIP Disapprovals 

VI. Administrative Requirements

I. Summary of Today’s Actions 

We are approving the serious area 

state implementation plan (SIP) for 

attainment of the annual and 24-hour 

PM–10 standards in the metropolitan 

Phoenix (Maricopa County), Arizona, 

area. This action is based on our 

determination that this plan complies 

with the Clean Air Act’s (CAA) 

requirements for attaining the PM–10 

standards in serious PM–10 

nonattainment areas such as the 

metropolitan Phoenix area. 

Specifically, we are approving the 

following elements of the plan as they 

address both the 24-hour and annual 

PM–10 standards: 

• The base year emissions inventory 

of PM–10 sources; 

• The demonstration that the plan 

provides for implementation of 

reasonably available control measures 

(RACM) and best available control 

measures (BACM) for all source 

categories that contribute significantly 

to PM–10 standard violations; 

• The demonstrations that attainment 

by the CAA deadline of December 31, 

2001 is impracticable; 

• The demonstrations that attainment 

will occur by the most expeditious 

alternative date practicable, in this case, 

December 31, 2006; 

• The demonstration that the plan 

provides for reasonable further progress 

and quantitative milestones; 

• The demonstration that the plan 

includes to our satisfaction the most 

stringent measures found in the 

implementation plan of another state or 

are achieved in practice in another state 

and can feasibly be implemented in the 

area; 

• The demonstration that major 

sources of PM–10 precursors such as 

nitrogen oxides and sulfur dioxide do 

not contribute significantly to violations 

of the PM–10 standards; 

• Contingency measures; and 

• The transportation conformity 

mobile source emissions budget. 

We are also approving Maricopa 

County’s fugitive dust rules, Rules 310 

and 310.01, and its residential 

woodburning restriction ordinance as 

well as commitments by the local 

jurisdictions in the Phoenix area to 

implement control measures. 

Finally, we are granting Arizona’s 

request to extend the attainment date for 

both the annual and 24-hour PM–10 

standards from December 31, 2001 to 

December 31, 2006. 

With today’s action, EPA has now 

approved all elements of the serious 

area PM–10 plan for the Phoenix area. 

Today’s final approvals also correct 

disapprovals of previous Phoenix PM–

10 plans that resulted in the imposition 

of one CAA sanction in the Phoenix area 

and a clock running for the imposition 

of another. With these approvals, the 

sanction is lifted and the clock stopped.

This preamble summarizes our 

actions on the Phoenix serious area 

plan, gives some background to this 

action, and provides responses to the 

most significant comments we received 

on the proposals for this final action. 

We have not repeated the concise 

evaluation of the plan that we provided 

in the two proposals for today’s action. 

We refer the reader to these proposals 

for this evaluation. See the annual 

standard proposal at 65 FR 19964 (April 

13, 2000) and the 24-hour standard 

proposal at 66 FR 50252 (October 2, 

2001). Our complete evaluation can be 

found in our technical support 

document (EPA TSD) that accompanies 

this final action. The EPA TSD also 

includes our full responses to all 

comments received on both proposals. 

The EPA TSD can be downloaded from 

our website or obtained by calling or 

writing the contact person listed above. 

II. The Serious Area PM–10 Plan for the 

Phoenix Area 

Arizona has made several submittals 

to address the CAA requirements for 

serious PM–10 nonattainment area 

plans in the Phoenix area. These 

submittals include the 1997 Microscale 

plan,1 the 1997 BACM submittal,2 the 

2000 Revised Maricopa Association of 

Governments (MAG) plan,3 the 2001 

Best Management Practices (BMP) 

submittal (BMP TSD),4 and a number of 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48719

5These include the revised Maricopa County 

Environmental Services Department (MCESD) Rule 

310, Fugitive Dust Sources (adopted February 16, 

2000) and Rule 310.01, Fugitive Dust from Open 

Areas, Vacant Lots, Unpaved Parking Lots, and 

Unpaved Roadways (adopted February 16, 2000), 

both submitted on March 2, 2000; the revised 

Maricopa County Residential Woodburning 

Restrictions Ordinance (adopted November 17, 

1999) submitted on January 28, 2000; and the 

Agricultural BMP General Permit Rule submitted on 

July 11, 2000, approved October 11 2001 (66 FR 

51869).

6A complete history of the Microscale plan, 

including the reasons for its development, can be 

found in the proposal and final actions for that plan 

and in proposal for the 24-hour standard. See 62 FR 

31025 (June 6, 1997), 62 FR 41856 (August 4, 1997) 

and the 24-hour standard proposal at 50254.

7According to the approved serious area plan 

attainment demonstration in the Microscale plan, 

the Salt River site should not have violated the 24-

hour PM–10 standard after May, 1998. The site, 

however, continues to violate the standard. Because 

there is already an approved serious area plan 

attainment demonstration, the remedy under the 

CAA for correcting this demonstration is for EPA 

to issue a formal request to the State to revise it SIP 

pursuant to section 110(k)(5), a process known as 

a ‘‘SIP call.’’ We will be proposing that SIP call 

soon. However, because the elements of the 

Phoenix serious area plan that we are approving 

today do not address the attainment of the 24-hour 

standard at the Salt River site, the issues with the 

site’s attainment demonstration do not affect 

today’s action.

rules.5 These submittals collectively 

comprise the full serious area PM–10 

plan for the Phoenix area.

The MAG plan is the primary 

document for the serious area plan. It 

contains the base year inventory, the 

BACM demonstrations for all significant 

source categories (except agriculture) for 

both standards, the demonstration that 

attainment of both standards by 2001 is 

impracticable, the demonstration that 

attainment of the annual standard and 

the 24-hour standard (at all but four 

sites addressed by the microscale plan) 

will occur as expeditiously as 

practicable, the reasonable further 

progress (RFP) demonstration and 

quantitative milestones for the annual 

standard, contingency measures for the 

annual standard, the transportation 

conformity budget, and the request and 

supporting documentation—including 

the most stringent measure analysis 

(except for agriculture)—for an 

attainment date extension for both 

standards under CAA section 188(e). 

The BMP TSD updates the MAG plan 

to reflect the State’s May, 2000 adoption 

of the agricultural general permit rule to 

control PM–10 from agricultural sources 

in Maricopa County. It includes a 

background document which provides 

the BACM and most stringent measure 

demonstrations for agricultural sources 

for both standards, the final 

demonstration of attainment and RFP 

for the 24-hour standard at two 

monitoring sites, quantitative 

milestones for the 24-hour standard, and 

revisions to the contingency measure 

provisions for both standards. It also 

includes documentation quantifying 

emission reductions from the 

agricultural general permit rule and 

documentation related to implementing 

this rule. The BMP TSD was prepared 

by ADEQ. 

The 1997 BACM submittal contains 

the initial commitments by the cities 

and towns in the Maricopa County 

portion of the Phoenix nonattainment 

area to implement BACM within their 

jurisdictions. These commitments were 

resubmitted in the revised MAG plan.

The Microscale plan is a serious area 

PM–10 plan that includes BACM, RFP, 

and attainment demonstrations for the 

24-hour PM–10 standard at four 

Phoenix area monitoring sites: Salt 

River, Maryvale, Gilbert, and West 

Chandler. It was prepared and 

submitted by ADEQ in 1997 as a 

component of the overall serious area 

PM–10 plan for the Phoenix area.6

III. Proposals for and Information 

Related to Today’s Actions 

A. The Proposals for Today’s Actions 

Two proposals preceeded today’s 

final action. The first proposal was 

published on April 13, 2000 (65 FR 

19964) and addresses the Phoenix 

serious area plan’s provisions for 

attaining the annual standard. The 

initial comment period for this proposal 

was 60 days but was extended twice and 

finally closed on July 27, 2000. We 

received 14 comments on this proposal 

from both public and private groups and 

from numerous private citizens. 

The second proposal was published 

on October 2, 2001 (66 FR 50252) and 

addresses the Phoenix serious area 

plan’s provisions for attaining the 24-

hour standard and contingency 

measures for both PM–10 standards. In 

this second proposal, we also revised 

and reproposed several findings from 

the annual standard notice. These 

reproposals were necessary because of 

SIP submittals made by Arizona after 

the April 2000 proposal. The 30-day 

comment period for this proposal ended 

on November 1, 2001. We received one 

comment letter. 

B. Already-Approved Elements of the 

Phoenix Serious Area PM–10 Plan 

Two important elements of the 

metropolitan Phoenix serious area PM–

10 plan have already been approved. 

These elements were submitted as either 

part of the Microscale plan or the BMP 

general permit rule and its TSD. 

We approved the Microscale plan in 

part and disapproved the plan in part on 

August 4, 1997. We approved provisions 

for implementing BACM for 3 of the 8 

source categories found to be significant 

contributors to 24-hour exceedances in 

the Phoenix area and disapproved them 

for 5 others. We also approved the 

attainment and RFP demonstrations for 

the Salt River and Maryvale sites 

because the Mircoscale plan 

demonstrated expeditious attainment at 

these sites but disapproved these 

demonstrations for the West Chandler 

and Gilbert sites because the plan did 

not demonstrate attainment at them. 

Except for our findings related to the 

implementation of BACM, we have not 

reevaluated and are not approving again 

those 24-hour provisions already 

approved as part of our actions on the 

Microscale plan.7

On October 11, 2001, we approved the 

State’s agricultural BMP general permit 

rule and found that it provided for the 

implementation of RACM for the 

agriculture source category. See 66 FR 

51869. We are today finding that the 

rule also provides for the 

implementation of BACM and meets the 

most stringent measure requirement in 

CAA section 188(e). These latter 

findings are in addition to and not in 

substitution for the October 11, 2001 

RACM finding. 

With today’s action and these 

previous approvals, we have now 

approved all elements of the Phoenix 

serious area PM–10 plan. 

C. Effect of Today’s Actions on the 1998 

Federal PM–10 Plan for the Phoenix 

Area 

On August 3, 1998, we promulgated a 

moderate area PM–10 federal 

implementation plan (FIP) for the 

Phoenix area. In the FIP, we included a 

rule for controlling fugitive dust from 

vacant lots, unpaved parking lots, and 

unpaved roads. See 40 CFR 52.128 

(modified, December 21, 1999). We also 

included a commitment to adopt and 

implement RACM for agricultural 

source categories. See 40 CFR 52.127 as 

published at 63 FR 41326, 41350 

(August 3, 1998) (withdrawn at 64 FR 

34726 (June 29, 1999)). With the Federal 

fugitive dust rule and commitment and 

already approved State and local 

controls, we demonstrated that the 

Phoenix area had in place RACM on all 

significant source categories, that the 

area would make reasonable further 

progress toward attainment but that 

attainment by 2001 was impracticable. 

See 63 FR 41326. 

On June 29, 1999, we replaced the 

federal commitment to develop 

agricultural controls in the FIP with a 

48720 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

8The two CAA sanctions are a limitation on 

certain highway approvals and funding and an 

increase in the emissions offset ratio to 2 to 1 for 

any major new stationary source or major 

modification. See CAA section 179(b). Our 

sanctions regulations provide that the first sanction 

to be imposed is the offset ratio unless we have 

established at the time of the disapproval that the 

highway sanction will be first. 40 CFR 52.31(d).

State commitment to adopt best 

management practices for the 

agricultural sources. 64 FR 34726. 

Today’s actions do not withdraw or 

otherwise modify the demonstrations in 

the FIP or the federal fugitive dust rule.

D. Clean Air Act Sanctions in the 

Phoenix Area 

In the 1998 FIP, we also disapproved 

the RACM and attainment 

demonstrations for the annual PM–10 

standard in the 1991 MAG moderate 

area PM–10 plan. See 63 FR 41326 

(August 3, 1998, effective September 2, 

1998). Under CAA section 179(a), once 

we disapprove a SIP provision because 

it fails to meet a CAA requirement, a 

State has 18 months from the effective 

date of the disapproval to correct the 

deficiency before the first of two 

sanctions goes into place. If the state 

still has not corrected the deficiency 

within 24 months of the effective date 

of the disapproval, the second sanction 

goes into place.8

On March 2, 2000, before Arizona 

could submit and we could act to 

approve substitute RACM and 

attainment demonstrations, the 18-

month clock expired and the 2:1 offset 

sanction went into place in the Phoenix 

area. The second clock for the highway 

funding limitations was set to expire on 

September 2, 2000. 

Under section 179(a) and our 

sanctions regulations at 40 CFR 

52.31(d)(1), we must approve a SIP 

revision that corrects the deficiencies to 

permanently end the sanctions clocks 

and lift any imposed sanctions. 

However, we may temporarily stay the 

clocks and any imposed sanctions if we 

have proposed to approve a SIP revision 

that corrects the deficiencies and have 

issued an interim final determination 

that the State has corrected the 

deficiencies. 40 CFR 52.31(d)(2)(i). 

We proposed to approve the RACM 

and attainment demonstrations for the 

annual standard on April 13, 2000. 65 

FR 19964. In a rule published 

concurrently with that proposal, we 

issued an interim final determination 

that stayed both the offset sanction and 

the clock running on the highway 

sanctions. 65 FR 19992.

With today’s action, we are fully 

approving the State’s substitute RACM 

and attainment demonstrations for the 

annual standard. These full approvals 

correct the deficiencies that resulted in 

the disapproval and permanently end 

the offset sanction and stop the clock for 

the highway sanctions. 

The serious area plan for the Phoenix 

area was due on December 10, 1997; 

however, Arizona submitted only a 

partial plan. On February 6, 1998, we 

made a finding that the State had failed 

to submit a required SIP (published on 

February 25, 1998 at 63 FR 9423). This 

finding also started sanctions clocks and 

a two-year clock under CAA section 

110(c) for EPA to promulgate a 

substitute federal implementation plan 

if the State did not have a fully 

approved one. 

On July 8, 1999, Arizona submitted 

the full serious area plan, and on August 

4, 1999, we found the plan complete. 

This finding stopped the sanction clocks 

for failure to submit; however, it did not 

stopped the FIP clock. Under section 

110(c), the FIP clock continues until we 

approve the full serious area plan. 

Today’s action approves the plan and 

ends our obligation to promulgate a 

serious area PM–10 FIP for the Phoenix 

area. 

E. EPA’s Policies on Approving Serious 

Area PM–10 Plans and Granting 

Attainment Date Extension 

We have issued a General Preamble, 

57 FR 13498 (April 16, 1992) and 57 FR 

18070 (April 28, 1992), and Addendum 

to the General Preamble (‘‘Addendum’’), 

59 FR 41998 (August 16, 1994), 

describing our preliminary views on 

how we intend to review SIPs submitted 

to meet the Clean Air Act’s 

requirements for PM–10 plans. The 

General Preamble mainly addresses the 

requirements for moderate areas and the 

Addendum, the requirements for serious 

areas. 

In the proposal for the 24-hour 

standard, we also provided our 

preliminary interpretation of and policy 

on granting an extension of the 

attainment date under CAA section 

188(e). We are finalizing this extension 

policy today only as it relates 

specifically to our action on the 

attainment date extension requested by 

the State of Arizona for the Phoenix 

area. 

IV. Response to Comments on the 

Proposed Actions 

The following are our responses to the 

most significant comments that we 

received on the proposals for today’s 

actions. In section 7 of the EPA TSD, we 

provide more detailed responses to 

these comments as well as responses to 

all comments received. A copy of the 

EPA TSD may be downloaded from our 

website or obtained by writing or calling 

the contact listed above. 

A. Comments on EPA’s Policies for 

Approving Serious Area PM–10 Plans 

and Granting Attainment Date 

Extensions 

Comment: EPA interprets the CAA to 

not require a state to apply BACM to 

any source or source category that it has 

demonstrated to be de minimis. See 59 

FR 41998, 42011 (August 16, 1994). In 

its July 2000 comments on the annual 

standard proposal, ACLPI disagrees that 

EPA can exempt de minimis sources 

from the Act’s BACM requirement. 

ACLPI argues that there are no 

exceptions to the Act’s requirement that 

serious area plans include ‘‘provisions 

to assure that the best available control 

measures for the control of PM–10 shall 

be implemented.’’ ACLPI incorporates 

by reference its arguments in its Brief 

for the Petitioners in Ober v. Whitman

(9th Cir., No. 98–71158) (Ober II) at pp. 

21–19, noting that although Ober II

involves a challenge to our exemption of 

de minimis sources from the RACM 

requirement, the same reasoning applies 

to invalidate the BACM exemption as 

well. 

Response: Ober II was a challenge to 

our 1998 PM–10 moderate area FIP for 

the Phoenix area. In the FIP, we 

exempted from the RACM requirement, 

source categories with de minimis 

impacts on PM–10 levels. We 

established a de minimis threshold of 1 

μg/m\3\ for the annual standard and 5 

μg/m\3\ for the 24-hour standard, 

initially taking these thresholds from 

the new source review (NSR) program 

for attainment areas. We showed that 

these were the correct thresholds for 

determining which source categories 

were de minimis for the RACM 

requirement by showing that the 

application of RACM on the de minimis 

source categories would not make the 

difference between attainment and 

nonattainment by the applicable 

attainment deadline. See 63 FR 41326, 

41330 (August 3, 1998). In Ober II, 

ACLPI challenged our ability to exempt 

de minimis source categories from the 

RACM requirement and the specific 

thresholds that we used.

In March, 2001 (well after the close of 

the comment period on the annual 

standard proposal), the 9th Circuit 

issued its opinion in Ober II. Ober v. 

Whitman, 243 F.3d 1190 (9th Cir. 2001). 

The court held that we have the power 

to make de minimis exemptions to 

control requirements under the Clean 

Air Act and that our use of the de 

minimis levels from the NSR program is 

appropriate. In addition, the Court 

determined that it is appropriate for us 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48721

9There are literally thousands of sources subject 

to fugitive dust controls in the Phoenix area, 

including constructions sites, agricultural fields, 

vacant lots, unpaved roads, and paved roads. For 

example, MCESD issued 2500 construction permits 

in 1999; we mailed 50,000 letters to owners of 

vacant lots as part of our 1999 outreach on the PM–

10 FIP. Effective fugitive dust control from many of 

these sources requires either an ongoing and 

extensive compliance and enforcement presence or 

large capital expenditures (e.g., paving unpaved 

roads, purchasing and operating PM–10 street 

sweepers).

to use, as a criterion for identifying de 

minimis sources, whether controls on 

the sources would result in attainment 

by the attainment deadline. Ober II at 

1198 

In finding that EPA had the authority 

to exempt de minimis source categories 

of PM–10 from CAA control 

requirements, the Court wrote:

Courts have refused to allow de minimis 

exemptions where the statutory language 

does not allow it. * * * There is no explicit 

provision in the Clean Air Act prohibiting 

the exemption from controls for de minimis 

sources of PM–10 pollution. Nor is the 

statutory language uncompromisingly rigid. 

The Act provides that a plan must include 

‘‘reasonably’’ available control measures to 

bring the area into attainment unless 

attainment is ‘‘impracticable.’’ Those terms 

allow for the exercise of agency judgment. 

* * * We conclude that EPA, in discharging 

its duty to enforce the Act, is permitted 

under [Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 

837 (1984)] to exempt de minimis sources of 

PM–10 from pollution controls.

Ober II at 1194 (internal cites and quotes 

omitted).

The Court’s reasoning is equally 

applicable to the BACM requirement. 

Like the RACM requirement, there is no 

explicit provision in the Act prohibiting 

the exemption from the BACM 

requirement for de minimis sources of 

PM–10 pollution. Nor is the language in 

section 189(b)(1)(B) requiring the 

implementation of BACM 

‘‘uncompromisingly rigid.’’ Like RACM, 

the Act and EPA policy provide that a 

PM–10 plan must include the ‘‘best’’

available control measures to bring the 

area into attainment unless attainment 

is ‘‘impracticable.’’ The term ‘‘best’’—no 

less than the term ‘‘reasonably’’—allows 

for the exercise of agency judgment. 

In Ober II, the Court also upheld the 

procedures and criteria we used to 

determine what constituted a de 

minimis source or source category for 

RACM. Ober II at 1198. We have applied 

exactly the same procedures and criteria 

for BACM. For BACM, we proposed the 

same NSR thresholds as a starting point 

for determining what constitutes a de 

minimis source category. See 24-hour 

standard proposal at 50281. We also 

required the State to demonstrate that 

its identified de minimis sources are in 

fact de minimis by showing that 

controls on them would not make the 

difference between attainment and 

nonattainment by the applicable 

deadline. See 24-hour standard proposal 

at 50281. 

Finally, we note that we invoke a de 

minimis exemption from the Act’s 

general but open-ended control 

requirements like RACM, BACM, and 

MSM as a means of ensuring that states 

focus their always limited resources on 

the controls most likely to result in real 

air quality benefits. It is more likely to 

harm air quality than to help it if these 

limited resources are diverted away 

from more substantive measures into the 

adoption and implementation of 

measures with trivial impacts. 

Nowhere is the need to concentrate 

resources on the most significant 

sources more necessary then in large 

urban areas dominated by PM–10 

fugitive dust sources, such as the 

metropolitan Phoenix area. Adequate 

controls in these types of areas require 

very large investments of both financial 

and human resources because of the 

number of sources and the type of 

needed controls.9 As the court has 

recognized in Alabama Power Co. v. 

Costle, 636 F.2d 323, 360 (D.C.Cir. 

1979), ‘‘[c]ourts should be reluctant to 

apply the literal terms of a statute to 

mandate pointless expenditures of 

effort. * * * The ability * * * to 

exempt de minimis situations from a 

statutory command is not an ability to 

depart from the statute, but rather a tool 

to be used in implementing the 

legislative design.’’ Cited in Ober II at 

1194.

Comment: In its July 2000 comments 

on the annual standard proposal, ACLPI 

argues that our de minimis exception 

violates the Act’s central mandate for 

attainment of the PM–10 standards by 

December 31, 2001 or as expeditiously 

as possible thereafter because it allows 

us and the states to eschew otherwise 

available control measures based on an 

arbitrary de minimis test even if the 

aggregate effect of implementing 

controls on all ‘‘de minimis’’ sources 

would hasten attainment. It further 

comments that even if the de minimis 

exception is allowed, the thresholds set 

by EPA are arbitrary because they were 

not based on actual PM–10 conditions 

in the nonattainment area, but on levels 

borrowed from the wholly unrelated 

new source review (NSR) program. 

Response: ACLPI misstates the scope 

of the BACM de minimis exemption. We 

do not consider a source category or 

groups of source categories to be de 

minimis if applying BACM to it or them 

would meaningfully expedite 

attainment in areas demonstrating 

attainment by December 31, 2001 or 

would make the difference between 

attainment and nonattainment by 

December 31, 2001 in areas requesting 

an extension. See 24-hour standard 

proposal at 50281 and Addendum at 

42011. 

Under our de minimis policy, 

whether the NSR thresholds are 

appropriate for an area depends on the 

specific facts of that area’s PM–10 

nonattainment problem, that is, it 

depends on the actual PM–10 

conditions in the nonattainment area. 

We do not accept the NSR thresholds as 

the correct de minimis thresholds 

without first requiring a conclusive 

showing that they do not adversely 

affect the area’s ability to show 

expeditious attainment. See Addendum 

at 42011. 

We used these NSR thresholds in our 

1998 FIP. ACLPI raised the same 

objections to their use there for the 

RACM requirement as it does here for 

the BACM requirement. Ober II at 1196. 

The Ninth Circuit in reviewing the FIP 

found that it was permissible for us to 

adopt the PM–10 de minimis thresholds 

already in place in the new source 

review program to identify de minimis 

sources for the RACM requirement. 

Ober II at 1196. Our reasoning for 

applying those thresholds for BACM is 

the same as our reasoning for applying 

them for RACM; therefore, we believe 

that the NSR thresholds are an 

appropriate starting point for 

determining which source categories are 

significant and which are de minimis 

for the purposes of applying BACM.

Comment: Under the section 188(e) 

extension provisions, a state must show 

that it has complied with all 

requirements and commitments in its 

implementation plan. We interpret this 

requirement to apply only to the control 

measures in the state’s previously 

submitted PM–10 implementation 

plans. See 24-hour standard proposal at 

50282. ACLPI argues that in addition to 

fully implementing the control 

measures in the SIP revisions that it has 

submitted, a state must also show that 

it has implemented other provisions of 

its SIP. ACLPI also comments that EPA’s 

attempt to limit this requirement to PM–

10 commitments has no basis in the Act. 

Response: We believe that this 

criterion’s purpose is to assure that a 

state is not rewarded with additional 

time to attain the PM–10 standards if it 

has not implemented earlier 

commitments and requirements to 

reduce PM–10 levels. Given this 

purpose, the focus of the test to 

determine if a state has met this 

48722 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

10This is similar to the de minimis thresholds 

which we also cannot specify in advance because 

they too must be set based on the actual PM–10 

conditions in the nonattainment area and the 

particular PM–10 standard under the consideration. 

See Addendum at 42011.

criterion should be on the 

implementation of PM–10 emission 

reducing control measures rather then 

on the implementation of programs, 

such as monitoring and permitting, that 

make up the overall air quality 

program’s infrastructure but are not 

emission reducing measures themselves. 

Limiting the section 188(e) review to 

just the PM–10 implementation plan is 

firmly based on the structure, purpose 

and language of the Act. The attainment 

date extension provisions are located in 

title I, part D, subpart 4 ‘‘Additional 

Provisions for Particulate Matter 

Nonattainment Areas.’’ Hence, any 

reference to the implementation plan 

within this subpart is to the PM–10 

implementation plan, absent specific 

language to the contrary. The criterion 

‘‘the State has complied with all 

requirements and commitments 

pertaining to that area in the

implementation plan’’ in section 188(e) 

(emphasis added) contains no language 

that implies a reference to all of an 

area’s implementation plans. Moreover, 

section 188(e) addresses setting the most 

expeditious attainment date for meeting 

the PM–10 air quality standards. There 

is at best a tenuous and strained 

connection between the implementation 

status of plans for attaining other air 

quality standards (e.g., ozone or carbon 

monoxide) and the appropriate and 

most expeditious date for attaining the 

PM–10 standard. 

The language in section 188(e) is 

almost identical to the language in 

section 188(d) that allows a one-year 

extension of the moderate area 

attainment date if, in part, ‘‘the State has 

complied with all requirements and 

commitments pertaining to the area in 

the applicable implementation plan.’’ In 

interpreting and applying section 

188(d), we have always considered ‘‘the 

applicable implementation plan’’ in 

question to be the State’s SIP for PM–

10. See Memorandum, Sally L. Shaver, 

OAQPS, to Regional Air Directors, 

‘‘Criteria for Granting 1-Year Extensions 

of Moderate Area Attainment Dates, 

Making Attainment Determinations, and 

Reporting on Quantitative Milestones,’’

November 14, 1994. See also, 66 FR 

32752, 32754 (June 18, 2001) 

(Attainment date extensions for Utah’s 

PM–10 nonattainment areas). 

Comment: EPA interprets the CAA to 

allow states to exempt from the most 

stringent measures requirement in 

section 188(e) any source or source 

category that it has demonstrated to be 

de minimis. 24-hour standard proposal 

at 50283. ACLPI disagrees that EPA can 

exempt de minimis sources of PM–10 

from the Act’s MSM requirement, 

arguing that the Act requires areas 

seeking an extension of the serious area 

PM–10 attainment deadline to 

demonstrate that their plans include the 

most stringent measures that are 

included in the implementation plan of 

any State or achieved in practice in any 

State, and can feasibly be implemented 

in the area,’’ and that there is no de 

minimis exception to this explicit 

mandate. 

Response: As stated above in response 

to a similar comment regarding the 

exemption of de minimis sources from 

the BACM requirement, we believe the 

Ober II Court’s reasoning in upholding 

that exemption for the RACM 

requirement is also applicable to the 

MSM requirement. Again, we invoke a 

de minimis exemption from the Act’s 

general but open-ended control 

requirements like RACM, BACM, and 

MSM as a means to ensure that states 

focus their always limited resources on 

the controls most likely to result in real 

air quality benefits.

Like the RACM requirement, there is 

no explicit provision in the Act 

prohibiting a de minimis source 

category exemption from the MSM 

requirement. Nor is the language in 

section 188(e) ‘‘uncompromisingly 

rigid.’’ In fact, the phrase—‘‘to the 

satisfaction of the Administrator’’—in 

the MSM provision specifically calls for 

the Agency to exercise its judgement in 

deciding how exactingly to apply the 

requirement. See Ober II at 1194. 

In our policy on the MSM 

requirement, we are using the same 

principles for determining when a 

source is considered de minimis under 

the MSM requirement that we used for 

the RACM requirement upheld by the 

Ober II Court. In doing so, we have 

carefully constructed the de minimis 

exemption for the MSM requirement to 

prevent states from eliminating any 

controls on sources or source categories 

that alone or together would result in 

more expeditious attainment of the PM–

10 standards. See annual standard 

proposal at 19967 and 24-hour standard 

proposal at 50583. We note that the 

Phoenix serious area plan did not reject 

any potential MSM on de minimis 

grounds. 

Comment: ACLPI argues that EPA’s 

proposed de minimis exception violates 

the Act’s requirement that states seeking 

an extension demonstrate attainment by 

the most expeditious alternative date 

practicable because it allows EPA and 

the states to reject otherwise available 

control measures based on an arbitrary 

de minimis test even if the aggregate 

effect of implementing MSM on all de 

minimis sources would hasten 

attainment. It also argues EPA’s 

proposal to determine an appropriate de 

minimis level by determining whether 

applying MSM to proposed de minimis 

source categories would ‘‘meaningfully 

hasten attainment’’ is vague and fails to 

comport with the Act. 

Response: ACLPI misstates the scope 

of the MSM de minimis exemption. We 

do not consider a source category or 

groups of source categories to be de 

minimis if applying MSM to it or to 

them would hasten attainment. We 

stated this clearly in both the proposal 

for the annual standard provisions and 

for the 24-hour standard provisions: 

Annual standard proposal at 19969; 24-

hour standard proposal at 50583. 

In Ober II, the Court found:

Using the [attainment] deadline to 

determine whether controls must be imposed 

makes sense. The deadline is not an arbitrary 

date unrelated to air quality concerns. * * * 

In this case, the [FIP] concludes that the 

deadline will not be met even if these small 

sources of PM–10 were controlled. Under 

those circumstances, it is reasonable to 

decline to control the de minimis sources of 

pollution.

Ober II at 1198.

In interpreting the MSM requirement 

to allow exemptions on de minimis 

grounds, we are also using the 

applicable attainment date to determine 

whether controls should be imposed. At 

the time a state submits its application 

for an attainment extension, (including 

the showing that its plan includes 

MSM), it must also submit a 

demonstration that attainment will 

occur by the ‘‘most expeditious 

alternative date practicable.’’ See CAA 

section 188(e). If it can be shown that 

including a certain set of potential MSM 

would not result in more expeditious 

attainment, then it is consistent with the 

Act to not require their inclusion as a 

condition of approval. 

What constitutes ‘‘meaningfully 

hastening attainment’’ depends on the 

actual PM–10 conditions in the 

nonattainment area and the particular 

PM–10 standard under consideration.10

Because of this dependence, we cannot 

in policy specify a time period that is 

appropriate in all situations. We can 

propose the appropriate time period 

only within the context of acting on a 

specific extension request. For today’s 

rulemaking, the plan did not invoke a 

de minimis exemption for evaluating 

MSM; therefore, we did not need to 

propose the time period we would 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48723

11We would not consider a measure to be 

reasonable if it does not contribute to expeditious 

attainment. See General Preamble at 13560; 63 FR 

15920, 15932 (April 1, 1998) (proposed Phoenix 

area PM–10 FIP); and 66 FR 26913, 26929 (May 15, 

Continued

consider meaningful for evaluating its 

de minimis exemption.

Comment: Under our policy on MSM, 

a state may reject a measure as 

infeasible for the area on economic 

grounds. See 24-hour standard proposal 

at 50283. ACLPI disagrees that a state 

can take economic considerations into 

account when determining the 

feasibility of MSM for the purposes of 

the MSM demonstration required under 

section 188(e). ACLPI argues that the 

Act only allows for the rejections of an 

MSM if it cannot feasibly be 

implemented in the area and any 

measure that is included in another SIP 

or achieved in practice in another state 

is by definition economically feasible 

because it is capable of being done or 

carried out if sufficient resources are 

devoted to it. ACLPI also argues that 

only its interpretation of MSM fits 

within the Act’s strategy of offsetting 

longer attainment time frames with 

more stringent control requirements and 

that by allowing for the rejection of 

MSM based on cost, EPA has made 

MSM virtually indistinguishable from 

BACM. 

Response: We believe that Congress 

very clearly intended that the phrase 

‘‘feasible in an area’’ in section 188(e) to 

include economic considerations. 

Section 188(e) lists five criteria that we 

may consider in determining whether to 

grant an extension and the length of an 

extension, the last of which is ‘‘the 

technological and economic feasibility 

of various control measures.’’ Emphasis 

added. The term ‘‘various control 

measures’’ clearly refers back, in part, to 

the requirement in the first part of 

section 188(e) that contains the 

requirement that the plan include ‘‘the 

most stringent measures that * * * can 

feasibly be implemented in the area.’’

By allowing us to consider the 

economic feasibility of measures in 

judging whether to grant an extension 

and how long an extension to grant, 

Congress necessarily also allowed states 

to consider economic feasibility in 

demonstrating the need for an extension 

of a given length. If section 188(e) 

compelled states to adopt all MSM that 

were technologically feasible no matter 

their cost, then there would be no 

economic feasibility issues for us to 

review in exercising our discretion to 

grant an extension. ACLPI’s position 

would read the very explicit criterion—

the technological and economic 

feasibility of various control measures—

out of section 188(e). A statute should 

not be interpreted to render any 

provision of that statute meaningless. 

See Northwest Forest & Resource v. 

Glickman, 82 F.3d 825, 834 (9th Cir. 

1996). See also Gustafson v. Alloyd Co.,

115 S. Ct. 1061, 1067 (1995) (no Act of 

Congress should ‘‘be read as a series of 

unrelated and isolated provisions.’’); 

Department of Revenue of Oregon v. 

ACF Industries, 114 S. Ct. 843, 848 

(1994) (‘‘a statute should be interpreted 

so as not to render one part 

inoperative’’) (quotation omitted). 

We agree that the Act’s general 

strategy is to offset longer attainment 

time frames with more stringent control 

requirements. We do not agree that the 

MSM requirement in section 188(e) is 

the primary mechanism that assures that 

increasingly stringent control 

requirements are adopted in areas 

requesting an extension. In fact, the 

most stringent control measure 

provision in section 188(e) will not 

necessarily result in the adoption of any 

additional control measures above and 

beyond those already adopted by the 

state to provide for BACM and 

expeditious attainment. 

The MSM provision is written to 

assure that a state consider the most 

effective controls from elsewhere in the 

country for implementation in the area 

requesting an attainment date extension. 

The results of the analysis are 

completely dependent on how well 

other areas have controlled their PM–10 

sources. If other areas have not 

controlled a particular source category 

well, then the resulting MSM for that 

source category will not be the more 

effective level of control than what is 

actually feasible for the area. The MSM 

provision, however, does not require a 

state to determine if the feasibility of 

controlling a source category at a level 

greater than the most stringent level 

from another area. In other words, it 

does not require states to determine the 

maximum level of control that could be 

applied to a source category given local 

conditions and the additional 

implementation time afforded by an 

extension.

In considering the MSM provision, 

there is a tendency to assume that there 

are always better controls elsewhere 

than there are in the local area. This 

assumption is unwarranted, especially 

for an area that has already gone 

through a systematic process of 

identifying and adopting BACM for 

their significant sources. These areas are 

likely to have already evaluated the best 

controls from other areas (as Arizona 

did, see MAG plan, Chapter 5) and 

either adopted them as BACM or 

rejected them as not feasible for their 

area. As a result, the likelihood of 

uncovering substantial new controls 

during a MSM evaluation is low. 

More important than the MSM 

provision for assuring adoption of 

additional controls is the requirement in 

CAA sections 189(b)(1)(A)(ii) and 188(e) 

that the PM–10 plan demonstrate 

attainment by the most expeditious 

alternative date practicable but no later 

than December 31, 2006. The SIP 

revision containing this demonstration 

must accompany any request for 

extension of the attainment date under 

section 188(e). Because we are required 

to grant the shortest possible extension, 

a state must demonstrate that it has 

adopted the set of control measures that 

will result in the most expeditious date 

practicable for attainment. This 

requirement may mean that a state must 

adopt controls that go beyond the most 

stringent measures adopted or 

implemented elsewhere. 

Comment: ACLPI disagrees with 

EPA’s interpretation of the phrase ‘‘to 

the satisfaction of the Administrator’’ in 

section 188(e). Specifically, ACLPI 

rejects the notion that by using this 

phrase, Congress intended to grant EPA 

discretion to accept an MSM 

demonstration even if it falls short of 

having every MSM possible because this 

interpretation contradicts the express 

language of section 188(e) as well as the 

requirement that the area achieve 

attainment by the most expeditious date 

practicable. ACLPI argues that the Act 

uses the phrase to grant EPA the 

authority to determine whether a state 

has adequately demonstrated that its 

plan includes the most stringent 

measures that are feasible, not to give 

the agency carte blanche to circumvent 

the will of Congress by ignoring the 

State’s failure to meet this requirement. 

Response: First, the Act does not 

require states to adopt every possible 

MSM. There is nothing in the express 

language of section 188(e) that requires 

such an outcome. The MSM 

requirement in section 188(e) is not 

phrased as ‘‘all most stringent 

measures’’ or as ‘‘every most stringent 

measure practicable or possible.’’

Our interpretation of the MSM 

requirement is consistent with how we 

have historically interpreted the general 

RACM requirement in CAA section 

172(c)(1), a requirement which does use 

the word ‘‘all.’’ This section requires 

that nonattainment area plans ‘‘provide 

for the implementation of all reasonably 

available control measures * * * ’’. 

(emphasis added). In interpreting this 

requirement, we have long held that a 

state is not obligated to adopt and 

implement measures that will not 

contribute to expeditious attainment.11

48724 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

2001) (approval of the Beaumont/Port Arthur ozone 

nonattainment area plan). Similarly, for the 

purposes of the MSM requirement, we would not 

consider such a measure to be feasible for the area.

We established this position in a policy 

that predates the CAA Amendments of 

1990. 44 FR 20372, 20375 (April 4, 

1979). Congress did not revise the 

RACM requirement in the 1990 

Amendments and thereby endorsed our 

position. We reaffirmed this position in 

1992, see General Preamble at 13560 

(April 16, 1992). The court has also 

endorsed this position in the specific 

context of the section 189(a) RACM 

requirement where the court found that 

using the attainment deadline to 

determine whether controls must be 

reasonable ‘‘makes sense.’’ Ober II at 

1198.

We are interpreting the MSM 

requirement using the same principle. 

We are again using the applicable 

attainment date to determine whether 

the MSM provision requires a particular 

control or set of controls to be imposed. 

Before we can grant an attainment date 

extension, the state must show that its 

plan will result in attainment by the 

‘‘most expeditious alternative date 

practicable.’’ See CAA sections 188(e) 

and 189(b)(1)(A)(ii). If a state can be 

shown that including a certain set of 

potential MSM would not result in more 

expeditious attainment, then it is 

reasonable and consistent with the Act 

not to require their inclusion as a 

condition of approval. 

Second, Congress did not need to add 

the phrase ‘‘to the satisfaction of the 

Administrator’’ to grant us the authority 

to review the adequacy of a state’s MSM 

demonstration. It had already given it to 

us by granting us the discretionary 

authority under section 188(e) to grant 

or to deny a state’s extension request. By 

attaching the phrase specifically to the 

MSM requirement, Congress 

emphasized EPA’s administrative 

authority to determine an appropriate 

interpretation of what is conceivably a 

very open-ended and exacting 

requirement. 

Finally, in reviewing whether Arizona 

has appropriately excluded an 

otherwise feasible measure or group of 

feasible measures in its MSM analysis, 

we have invoked only one criterion: 

whether or not the measure or group of 

measures are necessary for attainment 

by the earliest alternative date 

practicable. Given that this is our sole 

criterion, our interpretation of ‘‘to the 

satisfaction of the Administrator’’ does 

not conflict with the Act’s requirement 

for attainment by the earliest alternative 

date practicable.

Comment: ACLPI argues that EPA’s 

proposed methodology for determining 

MSM is flawed because it apparently 

does not require states to quantify 

expected emission reductions from 

measures for purposes of making MSM 

demonstrations. 

Response: We do not believe that 

quantification is always necessary or 

possible or can always be done 

accurately enough to be meaningful and 

therefore cannot be required as the sole 

means of determining relative 

stringency. Often, control measures are 

easily comparable without 

quantification. In these cases, 

quantification adds no additional 

information and is unnecessary. In other 

cases, quantification is not possible or 

cannot be done accurately enough 

because there is no methodology and/or 

insufficient data to calculate the 

difference in emissions reductions 

between measures. 

Because quantification is often 

problematic, we have not established in 

our policy on the MSM provision a 

specific method that a state must use to 

compare the stringency of measures, 

rather we expect a state to select the best 

method for making this comparison on 

a case-by-case basis taking into account 

the need to provide a clear and 

conclusive demonstration. See 24-hour 

standard proposal at 50284. 

B. Comments on EPA’s Detailed 

Evaluation of the Phoenix Serious Area 

PM–10 Plan 

Comment: ACLPI disagrees with 

EPA’s statement that the Act does not 

require the metropolitan Phoenix 

serious area plan to address the 

adequacy of the PM–10 monitoring 

network, asserting that section 

110(a)(2)(B)(i) specifically mandates 

this. 

Response: Section 110(a)(2)(B)(i) in 

title 1, part A of the CAA requires 

implementation plans to provide for the 

establishment and operation of a system 

to monitor, compile and analyze data on 

ambient air quality. These systems must 

necessarily be in place and operating 

long before a state can develop a 

nonattainment area plan under title I, 

part D of the CAA (such as the Phoenix 

serious area plan) because it is the data 

from this monitoring network which 

establish the area’s nonattainment status 

and its initial classification as well as 

the degree of control needed to attain 

the applicable standard. Therefore, SIP 

monitoring provisions are addressed 

separately and well in advance of the 

development of nonattainment area 

plans. 

Nonattainment area plans are not, in 

general, required to address how the 

area’s air quality network meets our 

monitoring regulations. Nor do we 

generally approve or disapprove 

monitoring networks as part of 

nonattainment area plans. These plans 

are submitted too infrequently to serve 

as the vehicle for assuring that 

monitoring networks remain adequate 

and current. Instead, our monitoring 

regulations in 40 CFR part 58 require 

states to submit reports on the adequacy 

of their ambient air quality monitoring 

networks annually. We discuss the 

adequacy of the monitoring network as 

part of our proposed action on the 

Phoenix plan to support our finding that 

the plan appropriately evaluates the 

PM–10 problem in the area. Reliable 

ambient data is necessary to validate the 

base year air quality modeling which in 

turn is necessary to assure sound 

attainment demonstrations. The 

network, however, does not need to 

meet all our regulatory requirements to 

be found adequate to support air quality 

modeling. A good spatial distribution of 

sites, correct siting, and quality-assured 

and quality-controlled data are the most 

important factors for generating 

adequate data for air quality modeling. 

Comment: Several times in its 

comments, ACLPI asserts that the 

Phoenix serious area plan fails to 

includes a specific measure and also 

fails to provide a reasoned justification 

for the rejection of the measures and 

that this violates both the CAA and EPA 

guidance, which require serious area 

PM–10 SIP revisions to provide for the 

implementation of all BACM or provide 

a reasoned justification for their 

rejection. 

Response: ACLPI is incorrectly 

characterizing both the CAA’s BACM 

requirement and our guidance regarding 

it. Neither requires the implementation 

of all BACM. CAA section 189(b)(1)(B) 

requires that SIPs include ‘‘provisions to 

assure that the best available control 

measures for the control of PM–10 shall 

be implemented***’’ There is 

nothing in this express language of this 

section that requires the implementation 

of all BACM; the requirement is not 

phrased as ‘‘all best available control 

measures’’ or as ‘‘every best available 

control measure possible.’’

In our serious PM–10 nonattainment 

area planning guidance (Addendum at 

42014), we have interpreted the BACM 

requirement to mean that a state must 

only provide for the implementation of 

BACM on its significant source 

categories: ‘‘in summary [of the process 

for selecting BACM for area sources], 

the State must document its selection of 

BACM by showing what control 

measures applicable to each source 

category (not shown to be de minimis) 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48725

were considered. The control measures 

selected should preferably be measures 

that will prevent PM–10 emissions 

rather than temporarily reduce them.’’

See also Addendum at 42011 (De 

Minimis Source Categories). Again, this 

guidance does not require the 

implementation of all BACM. 

Comment: ACLPI notes that the 

Arizona legislature repealed the remote 

sensing program during the 2000 regular 

session and thus the plan fails to 

demonstrate adequate legal authority for 

that measure. ACLPI also notes that the 

September 10, 2001 ruling by the 

Arizona Federal District Court found the 

State’s repeal and discontinuation of the 

RSD program a violation of the CAA and 

asked that the ruling be included in the 

record for this rulemaking. Finally, 

ACLPI asserts that as a measure that has 

been implemented in the State for 3 

years, it is a MSM and thus required 

under CAA section 188(e).

Response: The remote sensing (RSD) 

program is not a measure developed 

specifically for the MAG serious area 

PM–10 plan, but rather one Arizona 

adopted in 1994 as part of its carbon 

monoxide and ozone plans. In the MAG 

PM–10 plan, Arizona used the RSD 

program in the same manner as it used 

a number of other existing measures: to 

support its demonstration that the State 

has provided for the implementation of 

BACM for the on-road motor vehicle 

category. 

In the 24-hour standard proposal, we 

reviewed the plan’s BACM and MSM 

demonstrations for this source category 

assuming that the RSD program was no 

longer in place and determined that the 

plan still provided for the 

implementation of BACM and inclusion 

of MSM without it. See 24-hour 

standard proposal at 50259. Arizona has 

in place one of the nation’s most 

comprehensive programs to address onroad motor vehicle emissions. With the 

additional measures in the serious area 

plan (including a more stringent diesel 

I/M program and measures both 

encouraging and requiring diesel fleet 

turnover), we believe the plan easily 

provides for the implementation of 

BACM and inclusion of MSM for onroad motor vehicle exhaust. See 24-hour 

proposal at 50258. 

The plan included a very small NOX

benefit of 4 kg per day, 0.003 percent of 

the daily NOX inventory. See email, 

Cathy Arthur (MAG) to Frances Wicher 

(EPA), ‘‘Impact of Removal of Remote 

Sensing Program on NOX in 2006,’’

October 2, 2001. While not calculated in 

the serious area plan, a rough estimate 

of potential directly-emitted PM–10 

reductions from the program is no more 

than one-half ton per year (or 2.6 lbs per 

day). Neither the NOX benefit nor the 

directly-emitted PM–10 benefit would 

contribute to expeditious attainment of 

the PM–10 standards in the Phoenix 

area, so the State did not need to 

include the measure to assure 

expeditious attainment. 

Arizona stopped implementing the 

RSD program because of its high cost 

per ton of reductions, in the order of 

thousands of dollars per ton of pollutant 

reduced; that is, its economic 

infeasibility. See ADEQ, Final Arizona 

State Implementation Plan Revision, 

Basic and Enhanced Vehicle Emissions 

Inspection/Maintenance Program, June 

2001, p. 26. Under EPA’s MSM policy, 

economic infeasibility is a valid reason 

for rejecting a measure as MSM. See 24-

hour standard proposal at 50283. 

Because we have determined that the 

Metropolitan Phoenix serious area plan 

provides for the implementation of 

BACM, inclusion of MSM and 

expeditious attainment without the RSD 

program, any deficiency in legal 

authority for the program does not affect 

our approving the plan or granting an 

attainment date extension under CAA 

section 188(e). 

Comment: ACLPI disagrees that the 

plan provides a reasoned justification 

for the rejection of CARB diesel which 

ACLPI claims both EPA and MAG 

conceded is an MSM. ACLPI asserts that 

EPA did not accept the State’s 

justification and developed its own 

justification for the failure to adopt the 

measure. Citing Delaney v. EPA, 898 

F.2d 695 (9th Cir. 1990), ACLPI states 

that it is not EPA’s role to supply 

justifications that the state has not itself 

claimed. ACLPI also asserts that BACM 

cannot be excused if it would not 

advance the attainment date by one 

year; a measure must be adopted if it 

would advance the attainment date by 

even one day. 

Response: Neither EPA nor MAG 

concedes that CARB diesel is a most 

stringent measure that is feasible for the 

Phoenix area. The serious area plan 

rejects CARB diesel as infeasible for the 

Phoenix area based on costs. MAG plan, 

p. 9–46. Noting the uncertainties 

regarding this cost estimate, we could 

not judge whether this justification was 

reasonable or not. Annual standard 

proposal at 19973. The question then 

was whether we could still approve the 

MSM demonstration without CARB 

diesel and absent a reasoned 

justification for not including it. 

Our sole criterion for determining if 

the plan provides for MSM is whether 

it has excluded any feasible MSM or a 

group of feasible MSM that, if adopted 

and implemented early, would result in 

attainment of the PM–10 standards more 

expeditiously. On-road and nonroad 

engines (the source categories that 

would be affected by CARB diesel) are 

not implicated in 24-hour exceedances 

of the PM–10 standard. Microscale plan, 

tables 3–2 to 3–5. Except for the Salt 

River monitoring site with its fugitive 

dust generating industrial sources, 24-

hour exceedances in the Phoenix area 

are due exclusively to windblown dust 

from disturbed ground. Microscale plan, 

p. 16. Introducing CARB diesel would 

not contribute to expeditious attainment 

of the 24-hour standard. 

Annual standard exceedances are also 

dominated by fugitive dust sources with 

on-road and nonroad engines 

contributing little to annual PM–10 

levels in the area. The small emission 

reduction associated with the 

introduction of CARB diesel would not 

advance the attainment date in the area, 

either by itself or in combination with 

other measures. It takes a reduction of 

more than 4 metric tons per day to 

advance the annual standard attainment 

by a year in the Phoenix area. EPA TSD 

section ‘‘Reasonable Further Progress 

and Quantitative Milestones.’’ The MAG 

plan estimates reductions from 

introducing CARB diesel at less than 0.8 

mtpd in 2006. MAG plan, p. 10–37. 

Advancing attainment by one year is the 

appropriate increment for judging 

whether a measure would expedite 

attainment of the annual standard. One 

year is the smallest increment of time 

that one can advance attainment of the 

annual standard because the annual 

standard is measured over a calendar 

year, from January 1 to December 31. 

See 40 CFR part 50. 

Because the including CARB diesel 

would not result in more expeditious 

attainment of either PM–10 standard, 

we find that the Phoenix serious area 

plan has meet the MSM requirement 

without it and without including a 

reasoned justification for rejecting it 

ACLPI’s reliance on Delaney is 

misplaced. In that case, the Court found 

that EPA’s 1979 guidance explicitly 

provided that certain measures were 

presumptively reasonably available and 

that it was the state’s burden to 

overcome that presumption. In 1992, we 

repealed the provisions of the 1979 

guidance at issue in Delaney and added 

provisions specifically for PM–10 that 

establishes no presumption for those 

measures. See General Preamble at 

13560. Here, there was no EPA policy 

presumption that CARB diesel was a 

feasible measure for the Phoenix area 

which Arizona had to overcome. 

Comment: ACLPI argues that the 

metropolitan Phoenix plan improperly 

rejects various TCMs related to 

congestion management and idling 

48726 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

12This is clear from the language of the 

applicable CAA sections. CAA section 189(b)(1)(b) 

requires that ‘‘a state in which all or part of a 

serious area is located shall submit an 

implementation plan for such area that includes 

* * * provisions to assure that [BACM] * * * shall 

be implemented * * * ’’ CAA section 188(e) 

requires that ‘‘the State [requesting an extension of 

the attainment date] demonstrates * * * that the 

plan for that [serious] area includes the most 

stringent measures * * * ’’ The requirements in 

both sections apply to the serious area and not to 

the individual jurisdictions within the serious area.

reduction on the grounds that 

individually each measure would have 

a relatively small impact on PM–10 

emissions because the CAA does not 

contain a ‘‘small impact’’ exception 

from BACM and the plan’s purported 

justification for rejecting the TCMs does 

not comport with EPA’s BACM 

guidance. ACLPI also argues that the 

omission of these measures based solely 

on the amount of their individual 

impact violates the requirement of 

attainment as expeditiously as 

practicable because collectively, the 

measures might have a significant 

impact.

Response: Table TCM–3 in the EPA 

TSD lists four congestion management 

or idling measures that were identified 

as potential BACM but were not 

adopted as part of the plan: off-peak 

movement of goods, truck restrictions 

during peak times, limit excessive car 

dealership vehicle starts, and limit 

idling time to 3 minutes. Contrary to 

ACLPI’s assertions, the plan did not 

reject these measures on ‘‘small impact’’

grounds. Rather, it provides no clear 

justification for rejecting any of these 

measures. 

Prior to the development of the 

serious area plan, the Phoenix area 

already had in place a comprehensive 

set of TCMs. See EPA TSD, Table TCM–

2. With the additional measures in the 

serious area plan (including additional 

traffic light synchronization, transit 

improvements, and bicycle and 

pedestrian facility improvements), we 

believe the plan easily provides for the 

implementation of BACM for on-road 

motor vehicles even without the four 

measures listed above. See annual 

standard proposal at 19974 and 24-hour 

standard proposal at 50260. In addition, 

these measures have little PM–10 

benefit; therefore, their adoption and 

implementation would not contribute to 

expeditious attainment of the PM–10 

standards in the Phoenix area. 

As we have discussed previously, 

neither the CAA nor EPA guidance 

requires the implementation of all 

BACM, only that a state provide for the 

implementation of best available control 

measures on its significant source 

categories. See CAA section 189(b)(1)(B) 

and the Addendum at 42014. Moreover, 

we do not believe that the CAA requires 

us to reject an otherwise sound plan 

because of minor issues that do not 

affect the principal purposes of the plan: 

implementation of BACM and progress 

towards and expeditious attainment. 

Because the measures would not 

contribute to expeditious attainment 

and the State has provided for the 

implementation of BACM without them, 

we do not believe that the lack of these 

measures or a reasoned justifications for 

rejecting the measures is grounds for 

disapproving the plan. 

Comment: Several times in its 

comment letter, ACLPI states that some 

jurisdictions in the nonattainment area 

have not made commitments to adopt 

certain measures when other 

jurisdictions have and that the plan 

provides no explanation as to why the 

implementation of these measures by all 

jurisdictions is infeasible. ACLPI asserts 

that EPA guidance indicates that BACM 

should be adopted and implemented 

throughout a serious PM–10 

nonattainment area unless 100 percent 

implementation is infeasible. ACLPI 

also contents that because some 

jurisdictions have committed to more 

stringent control measures than other 

jurisdictions, their measures must be 

considered BACM/MSM and the plan 

must either provide for these measures’

implementation by all jurisdictions or 

demonstrate why this is infeasible.

Response: ACLPI cites our serious 

PM–10 nonattainment area planning 

guidance at Addendum at 42014 to 

support its first premise. This guidance 

states:

When evaluating economic feasibility, 

States should not restrict their analysis to 

simple acceptance/rejection decisions based 

on whether full application of a measure to 

all sources in a 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 

category if it is determined that 100 percent 

implementation of the measure is infeasible. 

This 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 

infeasible.

Contrary to ACLPI’s assertion, this 

guidance does not demand states 

implement a measure 100 percent 

unless 100 percent implementation is 

infeasible. Rather, it suggests that states 

not consider ‘‘full implementation on all 

sources in the nonattainment area’’ as 

the only possible implementation 

scenario for evaluating a measure’s 

economic feasibility and that, before it 

rejects a measure as economically 

infeasible, it should first consider less 

extensive implementation. 

The CAA’s requirements to 

implement BACM and include MSM 

apply to the nonattainment area as a 

whole and not to each individual 

jurisdiction within that nonattainment 

area.12 Consequently, we have reviewed 

whether the combined effect of all 

controls adopted in the metropolitan 

Phoenix area for a particular source 

category results in the implementation 

of BACM and the inclusion of MSM for 

that source category. Because BACM 

and MSM are nonattainment area-wide 

requirements, the actions of one 

jurisdiction within the nonattainment 

area cannot set a standard for BACM 

and/or MSM that must either be 

implemented by all other jurisdictions 

within the area or demonstrated to be 

infeasible.

Comment: Several times in its 

comment letter, ACLPI states that some 

jurisdictions in the nonattainment area 

have not made commitments to adopt 

certain measures when other 

jurisdictions have. In this context, 

ACLPI asserts that CAA section 

110(a)(2)(E) requires that plans provide 

assurances of adequate personnel, 

funding and authority to implement 

control measures. 

Response: ACLPI is incorrectly 

applying CAA section 110(a)(2)(E). 

Under this section, a state needs to 

provide assurances of adequate 

personnel, funding and authority only 

for those control measures that it has 

included in its submitted 

implementation plan. It does not need 

to provide such assurances for control 

measures that are not included in its 

submitted implementation plan, 

whether or not an argument could be 

made that such measures should have 

been included to meet another CAA 

provision. This is clear from the 

language of the section: ‘‘[e]ach 

implementation plan submitted by a 

State * * * shall * * * provide (i) 

necessary assurances that the State 

* * * will have adequate personnel, 

funding, and authority under State 

* * * law to carry out such

implementation plan.’’ (emphasis 

added). Therefore, where a jurisdiction 

has not committed to implement a 

measure, it is not required to provide 

assurances of adequate resources as part 

of its submittal in order to have it 

approved under CAA section 

110(a)(2)(E). 

Comment: For a number of reasons, 

ACLPI asserts that Rule 310.01 weakens 

the FIP rule requirements for disturbed 

vacant lots and unpaved roads. ACLPI 

further asserts that EPA’s conclusion 

that the differences between the FIP rule 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48727

13 In the past, we have approved enforceable 

commitments and courts have enforced these 

actions against states that failed to comply with 

those commitments. See, for example, American 

Lung Association of New Jersey v. Kean, 670 F. 

Supp. 1285 (D.N.J. 1987), affirmed, 871 F.2d 319 

(3rd Cir. 1989); NRDC v. N.Y. State Dept. of 

Environmental Conservation, 668 F. Supp. 848 

(S.D.N.Y.1987); Citizens for a Better Environment v. 

Deukmejian, 731 F. Supp. 1448, reconsideration 

granted in part, 746 F. Supp. 976 (N.D. Cal. 1990); 

Coalition for Clean Air, et al. v. South Coast Air 

Quality Management District, CARB, and EPA, No. 

CV 97–6916 HLH, (C.D. Cal. August 27, 1999). 

Further, if a state fails to meet its commitments, we 

can make a finding of failure to implement the SIP 

under Section 179(a), which would start an 18-

month period for the State to begin implementation 

before mandatory sanctions are imposed.

and Rule 310.01 will not have a 

significant impact on emission 

reductions is unsupported by 

quantification or analysis of the relative 

emission reductions and thus EPA’s 

approval of the rule change as sufficient 

to provide the same level of control as 

the FIP rule is therefore arbitrary and 

capricious and violates the Act and EPA 

guidance that require BACM to go 

beyond existing RACM-level controls. 

Response: We are not withdrawing or 

modifying the FIP fugitive dust rule in 

this action. Therefore, comments 

regarding the effect of approving Rule 

310.01 on the FIP rule are not germane. 

Neither the CAA nor EPA guidance 

mandates that a BACM-level control 

measure always go beyond the existing 

RACM-level control measure. While 

both the CAA and EPA guidance intend 

a greater level of stringency to apply in 

areas that are required to implement 

BACM than in those areas required only 

to implement RACM, the intent is that 

the overall PM–10 control strategy for a 

category should, in general, be more 

stringent rather than that every 

individual control measure in that 

strategy be more stringent. 

A state can show that it has 

implemented BACM in more than one 

way. It can show it by demonstrating 

that its BACM-level control measures 

for a source category collectively go 

beyond existing RACM-level measures 

for that category. Addendum at 42013. 

It can also show it by demonstrating that 

its adopted measures meet the 

definition of BACM. Addendum at 

42010. Thus, if a state has already 

adopted measures to meet the RACM 

requirement that are collectively the 

‘‘maximum degree of emissions 

reduction achievable from a source or 

source category which is determined on 

a case-by-case basis, considering energy, 

economic and environmental impacts’’

then it need not strengthen the measures 

further to meet the BACM requirement.

We also emphasize that a BACM 

demonstration is done source category 

by source category and not measure by 

measure. In determining whether a state 

has provided for the implementation of 

BACM on a particular source category, 

we need to look at all the control 

measures for that category. In this 

particular instance, Rule 310.01 alone 

does not constitute the entire BACMlevel control strategy for vacant lots and 

unpaved roads. Rather, it is the 

combination of Rule 310.01, Rule 310, 

and city and town commitments that 

constitute the BACM strategy for this 

category. See annual standard proposal 

at 19977 and 19978 and 24-hour 

standard proposal at 50263 and 50264. 

Comment: ACLPI comments that 

EPA’s approval of the BACM/MSM 

demonstration for construction sites is 

contingent upon commitments by 

MCESD to add additional control 

requirements for dust suppression and 

to make other changes to MCESD Rule 

310. While ACLPI agrees that Rule 310 

needs strengthening, it asserts that a 

commitment to make unspecified 

changes to the rule to achieve a BACM/

MSM level of control is inadequate 

because it does not meet the 

requirements of the Act for enforceable 

measures no later than June 10, 2000 

(BACM) or as expeditiously as 

practicable (MSM) and offers no 

assurances that adequate changes will 

ever be adopted. ACLPI claims that the 

techniques for controlling emissions 

from construction activities and sites are 

well known. 

ACLPI further asserts that EPA may 

only approve a plan based on a 

commitment pursuant to CAA section 

110(k)(4) and then only if the state 

commits to adopt specific enforceable 

measures by a date certain but not later 

than 1 year after the date of approval of 

the plan revisions. ACLPI claims that 

MCESD’s commitments to improve Rule 

310 do not meet the requirements of 

CAA section 110(k)(4) because it does 

not commit to adopt specific 

enforceable measures but only to 

‘‘research, develop and incorporate’’

additional unspecified measures for 

dust suppression practices/equipment 

into Rule 310 or the dust control plans 

required under that rule. Finally, ACLPI 

states that the serious area plan must 

include the BACM/MSM measures 

identified from South Coast, Clark 

County and Imperial County or provide 

a reasoned justification for their 

rejection and it is not enough for 

Maricopa County to commit to studying 

these measures. 

Response: We are approving MCESD’s 

commitments under CAA section 

110(k)(3) and not section 110(k)(4). We 

believe—consistent with past practice—

that the Act allows approval of 

enforceable commitments under section 

110(k)(3) that are limited in scope where 

circumstances exist that warrant the use 

of commitments in place of adopted 

measures. These commitments are 

enforceable by EPA and citizens under, 

respectively, CAA sections 113 and 304 

of the Act.13

Section 110(k)(4) provides for the 

conditional approval of State 

commitments; however, these 

commitments do not need to be 

enforceable. Commitments approved 

under section 110(k)(3) are not 

enforceable by either EPA or citizens, 

rather the Act provides that the 

conditional approval will convert to a 

disapproval if ‘‘the State fails to comply 

with such commitment.’’

MCESD’s commitments have been 

adopted by the Maricopa County Board 

of Supervisors after appropriate public 

notice and hearing and meet Arizona 

state requirements for the adoption of 

enforceable SIP commitments by local 

jurisdictions. See A.R.S. 49–406 G. and 

Maricopa County Resolutions. Once we 

have approved them into the SIP under 

CAA section 110(k)(3), the 

commitments are fully enforceable 

against MCESD and the Board under 

CAA sections 113 and 304. 

We are allowing the use of these 

enforceable commitment here because it 

is the only approach available at this 

time to assure the needed improvements 

to Rule 310. The information needed to 

make these improvements and to 

specify the details of these 

improvements does not currently exist 

and must be developed through 

additional research and investigation. 

While the general techniques for 

controlling dust from construction 

activities are well known (e.g. watering), 

the most effective applications of these 

general techniques for controlling 

emissions from any particular 

construction site in Maricopa County 

(e.g., how much water and when to 

apply it) are not well known. 

Construction sites differ in soils 

(affecting the quantity of water needed 

for effective control), meteorological 

conditions (affecting the frequency with 

which water must be applied), 

equipment size/use (affecting quantity 

and plume characteristics of dust 

generated), project phase (affecting 

quantity and time period of dust 

generated), and level of activity 

(affecting quantity of dust generated). 

The specifics of how controls should be 

applied to meet the 20 percent opacity 

standard and other applicable Rule 310 

standards will vary depending on these 

and other site and activity parameters.

48728 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

14 In 1994, in considering EPA’s authority under 

section 110(k)(4) to conditionally approve 

unenforceable commitments, the Court of Appeals 

for the District of Columbia Circuit struck down an 

EPA policy that would allow States to submit 

(under limited circumstances) commitments for 

entire programs. Natural Resources Defense Council

v. EPA, 22 F.3d 1125 (D.C. Cir. 1994). While we do 

not believe that case is directly applicable here, we 

agree with the Court that other provisions in the Act 

contemplate that a SIP submission will consist of 

more than a mere commitment. See NRDC, 22 F.3d 

at 1134.

15As we will discuss later, MCESD has also 

committed to adopt a rule for certain types of 

charbroilers. This commitment does not change our 

analysis here because, even when combined with 

the commitments to improve Rule 310, it is a very 

small part of the demonstration that the plan 

includes MSM.

16Our interpretation that the Act allows for an 

approval of limited enforceable commitments has 

been upheld by the Ninth Circuit Court of Appeals, 

as well as by other circuits. See Kamp v. 

Hernandez, 752 F.2d 1444 (9th Cir. 1985); City of 

Seabrook v. EPA, 659 F.2d 1349 (5th Cir. 1981); 

Connecticut Fund for the Environment v. EPA, 672 

F.2d 998 (2d Cir.), cert. denied 459 U.S. 1035 

(1982); Friends of the Earth v. EPA, 499 F.2d 1118 

(2d Cir. 1974).

One of the enforceable commitments 

by MCESD is to develop parameters that 

address various site conditions and are 

sufficient to ensure that Rule 310’s 

performance standards are met more 

consistently. The concern captured in 

this enforceable commitment is that, 

while it is important for sites to have 

some flexibility in selecting which 

control measure(s) to implement, there 

are field circumstances where the 

technique must be implemented in a 

certain manner to be effective. For 

example, where hydrophobic soils exist 

under dry meteorological conditions, it 

may be necessary to water several days 

prior to ground disturbance to allow 

water to penetrate to the depth of cut. 

In some other situations, a tackifyer or 

surfactant needs to be added to the 

water for better penetration. However, 

these approaches may be needed only 

under certain field conditions. MCESD 

needs additional time to investigate 

when and where it would be 

appropriate to require more specific 

controls and what those controls should 

be. 

Another one of MCESD’s 

commitments is to modify Rule 310’s 

existing opacity standard/test method or 

add an additional opacity standard(s)/

test method(s), so that they better 

characterize fugitive dust sources that 

create intermittent plumes. Information 

on how to do this most effectively is 

currently lacking. While derivations on 

EPA Reference Method 9 (the standard 

opacity test method) observations have 

been adopted in Rules 310 and 310.01 

for unpaved roads and unpaved parking 

areas to better accommodate the 

temporal nature of plumes from vehicle 

passes, additional field research is 

needed to determine how observation 

intervals and other aspects of opacity 

readings can be better tailored to the 

variety of intermittent plumes generated 

by construction equipment and 

activities. 

Once we determine that 

circumstances warrant the use of an 

enforceable commitment, we believe 

that three factors should be considered 

in determining whether to approve the 

enforceable commitments: (1) whether 

the commitment addresses a limited 

portion of the statutorily-required 

program; (2) whether the state is capable 

of fulfilling its commitment; and (3) 

whether the commitment is for a 

reasonable and appropriate period of 

time.14

First, MCESD’s commitments address 

a very limited portion of the CAA’s 

requirements for the implementation of 

BACM and the inclusion of MSM. In 

this case, MCESD’s commitments are 

improvements to aspects of the alreadyadopted and implemented Rule 310; 

improvements that, we again 

emphasize, cannot be made at this time 

because additional research is needed.15

Second, MCESD has committed 

resources adequate to fulfill its 

commitments and has provided 

information on its work plan for 

completing the necessary technical 

work. See Maricopa County 

commitments as revised December 19, 

2001.

The final factor is whether the 

commitment is for a reasonable and 

appropriate period. All but one of the 

commitments have deadlines of 

December 2002, less than a year after 

their approval. The other commitment is 

the implementation of a second level of 

dust control education that will begin in 

the March to June 2003 time frame. See

Maricopa County commitments as 

revised December 19, 2001. Given the 

complexity of the tasks required by the 

commitments, we believe that these 

schedules are expeditious. Moreover, 

they are consistent with the attainment 

and RFP demonstrations in the plan. 

Our approach here of accepting 

enforceable commitments that are 

limited in scope is not new. We have 

historically recognized that under 

certain circumstances, issuing a full 

approval may be appropriate for a 

submission that consists, in part, of an 

enforceable commitment. See e.g., 62 FR 

1150, 1187 (January 8, 1997) (ozone 

attainment demonstration for the South 

Coast Air Basin); 65 FR 18903 (April 10, 

2000) (revisions to attainment 

demonstration for the South Coast Air 

Basin); 63 FR 41326 (August 3, 1998) 

(federal implementation plan for PM–10 

for Phoenix); 48 FR 51472 (State 

Implementation Plan for New Jersey). 

Nothing in the Act speaks directly to 

the approvability of enforceable 

commitments. However, we believe that 

our interpretation is consistent with its 

provisions. For example, CAA section 

110(a)(2)(A) provides that each SIP 

‘‘shall include enforceable emission 

limitations and other control measures, 

means or techniques*** as well as 

schedules and timetables for 

compliance, as may be necessary or 

appropriate to meet the applicable 

requirement of the Act.’’ (Emphasis 

added.) The emphasized terms mean 

that enforceable emission limitations 

and other control measures do not 

necessarily need to be fully adopted to 

meet the Act’s applicable requirements 

for the implementation of BACM and 

inclusion of MSM. Rather, the emissions 

limitations and other control measures 

may be supplemented with other SIP 

rules—for example, the enforceable 

commitments we are approving today—

as long as the entire package of 

measures and rules provides for BACM 

and MSM.16

Comment: ACLPI comments that the 

CAA requires that SIPs must provide for 

the implementation of all RACM and 

that the Governor’s Agricultural Best 

Management Practices Committee 

identified a variety of available and 

feasible control measures which are 

included in the agricultural general 

permit rule as BMPs. ACLPI asserts that 

the Rule does not meet the CAA 

requirement for all RACM because it 

only requires the implementation of one 

BMP from each of three categories of 

farm activities even if the 

implementation of more than one BMP 

would be technologically and 

economically feasible. 

Response: This comment is neither 

germane to today’s action nor timely. In 

today’s action, we have addressed only 

whether Arizona’s BMP general permit 

rule provides for the implementation of 

BACM and the inclusion of MSM. We 

have not addressed whether it also 

provided for the implementation of 

RACM because we have already done so 

in an earlier rulemaking that was 

finalized on October 11, 2001. The 

appropriate time for ACLPI to raise 

issues regarding whether the general 

permit rule meets the CAA’s RACM 

requirement for agricultural sources in 

the Phoenix area was during the 

comment period on this earlier 

rulemaking. ACLPI made comments on 

this earlier rulemaking, and we fully 

addressed those comments in the final

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48729

17 In fact, when using mean hourly wind speed 

observations averaged over all monitoring sites in 

the Maricopa County nonattainment area for 1995, 

it was estimated that there 29 hours with wind 

speeds between 15 and 19.9 mph, 7 hours with 

wind speeds between 20 and 24.9 hours, and only 

one hour with wind speeds over 25 mph. MAG 

TSD, Appendix II, Exhibit 7 ‘‘Wind Criteria and 

Associated Emissions for Regional Particulate 

Matter Modeling,’’ Updated April 13, 1999, p. 3.

18The Coachella Valley is not the only 

agricultural area in the South Coast district. 

Riverside (outside of the Coachella Valley) and San 

Bernardino Counties are the predominant 

agricultural areas in the region. These areas 

experience winds greater than 25 mph 

approximately 25 and 23 days per year, 

respectively, yet the South Coast does not impose 

the cessation of tilling requirement in these areas 

unless a grower opts to use the practices listed in 

the Handbook as the means of complying with Rule 

403.

19We note that one exemption from Rule 403.1’s 

cessation of tilling requirement is when tilling 

activities result in a net reduction of wind blown 

fugitive dust, an exemption that is applicable only 

if wind blown fugitive dust is not visible from tilled 

soil, but is visible from untilled soil within the 

same agricultural parcel. Rule 403.1 (h)(4)(B). This 

exemption shows that there are some situations 

when cessation of tilling during a high wind event 

is actually counter-productive and thus it is not 

always more effective to combine it with another 

BMP.

action. See 66 FR 51869, 51871. See 

also, 66 FR 34598 (June 29, 2001). 

Comment: ACLPI asserts that the 

metropolitan Phoenix area plan fails to 

include the most stringent measures as 

required by CAA section 188(e) because 

it does not uniformly require the 

cessation of tilling on high wind days as 

South Coast Rule 403 rule does but 

rather includes it as one measure among 

several that a farmer may choose to 

implement. ACLPI further asserts that 

ADEQ’s attempt to justify this deviation 

by stating that ‘‘no research currently 

exists which demonstrates that 

cessation of high wind tilling when 

gusty winds exceed 25 mph in the 

Maricopa County area is more effective 

at reducing PM–10 then the agricultural 

PM–10 general permit * * *’’ is 

irrelevant because the appropriate 

inquiry is whether the cessation of 

tilling on high wind days combined 

with the implementation of at least one 

other BMP would be more effective at 

reducing PM–10 which ACLPI claims, 

without support, it would be. 

Response: South Coast Rule 403 does 

not require cessation of tilling on high 

wind days. Rule 403 includes a list of 

optional measures an affected source 

can use to reduce PM–10. For 

agricultural sources affected by Rule 

403, the South Coast AQMD developed 

a series of farming practices that can be 

used by a grower as alternative means 

to comply with the requirements of Rule 

403. These practices are listed in ‘‘Rule 

403 Agricultural Handbook: Measures to 

Reduce Dust from Agricultural 

Operations in the South Coast Air 

Basin’’ (‘‘Handbook’’). If a grower 

decides to opt for compliance with the 

Rule by utilizing the dust control 

practices in the Handbook, the grower 

must cease tilling and soil preparation 

operations when winds are over 25 

mph.

The requirement to cease tilling on 

high wind days is found in Rule 403.1 

(‘‘Wind Entrainment of Fugitive Dust’’). 

The requirement is applicable only to 

the Coachella Valley (Palm Springs area) 

of the South Coast air basin and has a 

number of exemptions. See South Coast 

Rule 403.1, sections (a), (d)(4), and 

(h)(4). 

The BMP general permit includes 

‘‘limited activity during high wind 

events’’ among the list of BMPs from 

which a grower can select. The BMP 

Committee and Arizona decided not to 

require cessation of tilling on high wind 

days as a provision in the general permit 

for a number of technical and practical 

reasons, the main ones being the 

infrequency of high wind events in the 

Phoenix area, especially in comparison 

to the frequency of high wind events in 

the Coachella Valley. 

Based on local meteorological data, 

MAG estimated that there were 11 days 

in 1995 with winds greater than 15 

mph. In the Phoenix nonattainment 

area, the State determined that a small 

percentage (i.e., 15 percent) of tilling 

occurs during the high wind season (i.e.,

March through September). Within the 

high wind season, only 4 percent of 

days have wind speeds greater than 15 

mph.17 The Coachella Valley is much 

more windy, typically experiencing 

high wind greater than 25 mph on 47 

days per year.18 Based on this 

information, the BMP Committee and 

the State determined that an agricultural 

requirement developed specifically for 

Coachella Valley high wind conditions 

was not appropriate for the Phoenix area 

and that requiring cessation of tilling on 

high wind days would not be reasonable 

because since it would impact a small 

number of growers and provide minimal 

reductions.

Arizona has provided a reasonable 

justification for not requiring cessation 

of tilling during high wind events. In 

the Microscale plan, the State shows 

that it was windblown dust from an 

already tilled agricultural field and not 

the active tilling of that field that 

contributed to the 24-hour exceedance 

at West Chandler. See Microscale plan, 

pp. 16. In the serious area plan, the 

State demonstrates that the BMP general 

permit rule as adopted in combination 

with other adopted measures provides 

for expeditious attainment of the 24-

hour PM–10 standard in the Phoenix 

area and is not necessary for expeditious 

attainment of the annual standard in the 

area. Finally, the State through its BMP 

committee has determined that the 

requirement for one BMP per category is 

the most effective economically and 

technologically feasible control measure 

for agricultural sources in the Phoenix 

area. Given all of this, the State has 

reasonably declined to mandate the 

cessation of tilling during high winds 

when faced with an absence of data that 

it would make the BMP rule more 

effective.19

Comment: ACLPI asserts that because 

Arizona is seeking an extension of the 

PM–10 nonattainment date to December 

31, 2006, it must show that its plan 

includes the most stringent measure for 

each source category, including 

agriculture, citing CAA section 188(e). It 

then contends that South Coast Rule 403 

is significantly more stringent than the 

general permit rule, noting that Rule 403 

establishes six categories of 

management practices and requires 

operators to implement at least one of 

the listed practices in 5 of 6 categories 

(i.e., Active, Farm Yard Area, Track-Out, 

Unpaved Roads, and Storage Pile) and 

three measures in the ‘‘Inactive’’

category. ACLPI claims that when the 

cessation of tilling on high wind days is 

included, each commercial farmer is 

required to implement a minimum of 

nine control measures and that 

Arizona’s program only requires a total 

of three control measures. To qualify 

and obtain an extension of the 

attainment date, the Arizona SIP must 

include agricultural measures that are at 

least as stringent as Rule 403. 

Response: Neither the CAA nor EPA 

policy requires that areas seeking 

attainment date extensions include 

without exception the most stringent 

measures for each source category. The 

CAA requires only that the plan include 

the most stringent measures found in 

the implementation plan of other States 

or used in practice that are feasible in 

the area. See CAA section 188(e). We 

interpret the MSM provision to not 

require any measure that is infeasible on 

technological or economic grounds, any 

measure for insignificant source 

categories, and any measure or group of 

measures that would not contribute to 

expeditious attainment. See 24-hour 

standard proposal at 50282–84. 

ACLPI is not correctly characterizing 

the requirements of the South Coast’s 

agricultural control measures (which are 

found in Rules 403 and 403.1). 

Agricultural operations are required to 

comply with the provisions of Rule 403 

unless the person responsible for such 

48730 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

20We also note that for inactive fields, the 

Handbook allows agricultural operators to comply 

with local jurisdiction requirements in lieu of 

implementing three practices (Handbook, section II, 

p. 4.) and that a field which has been withdrawn 

from agricultural use in the Phoenix area becomes 

subject to MCESD Rule 310.01’s BACM/MSM-level 

requirements for open areas and vacant lots. All 

these control options demonstrate that the six 

categories/nine practices versus three categories/

three practices comparison is misleading.

21The BMP Committee is composed of five local 

farmers, the Director of ADEQ, the Director of the 

Arizona Department of Agriculture, the State 

Conservationist for the United States Department of 

Agriculture’s (USDA) Natural Resources 

Conservation Service (NRCS) state office, the Dean 

of the University of Arizona’s College of 

Agriculture, and a soil scientist from the University 

of Arizona.

operations voluntarily implements the 

conservation practices contained in the 

most recent Rule 403 Handbook. See 

Rule 403 (h)(1)(B). The Handbook, and 

not the rule itself, has the requirement 

to implement at least one of the listed 

practices in 5 of 6 categories and three 

measures in the Inactive category. A 

grower, however, only has to implement 

practices for those categories of 

agricultural operations that they 

actually have; thus if s/he does not have 

one of the activity categories and/or 

inactive fields then the number of 

practices s/he must implement is fewer. 

As we have noted above, the 

requirement for cessation of tilling on 

high wind days applies only in the 

Coachella Valley portion of the South 

Coast district and is a requirement on all 

agricultural operations in the other 

portion of the district only when a 

grower opts for using the Handbook to 

comply with Rule 403. Therefore, 

ACLPI exaggerates the requirements of 

the South Coast agricultural control 

program when it claims the program 

requires each commercial farmer to 

implement a minimum of nine 

management practices.20

We agree that in general Rule 403 (or 

the Handbook) is likely to be more 

stringent than the general permit rule. 

We, however, also agree, as discussed 

below, with the State’s assessment that 

the South Coast requirements are 

infeasible for the Phoenix area and that 

the general permit rule represents the 

most stringent economically and 

technologically feasible agricultural 

control program for the area. 

In assessing South Coast’s 

requirements, the BMP Committee and 

ADEQ determined that because of the 

lack of adequate technical information 

concerning BMP costs and effectiveness, 

requiring at least one BMP for the three 

agricultural categories adequately 

addressed agricultural sources of PM–10 

in the Maricopa County nonattainment 

area. ADEQ concluded that:

The agricultural general permit cannot 

mirror South Coast Rule 403 for a variety of 

reasons. One main reason is that agriculture 

in Maricopa area is primarily flood irrigated. 

The South Coast has dryland, irrigated, and 

sprinkler irrigated agriculture. The actual 

amount of irrigation water and frequency of 

irrigation can effect wind erosion estimates 

and the effectiveness of different control 

measures under different conditions. 

Therefore, the BMPs for Maricopa County 

were based on practical applications during 

those times when the fields were not flooded. 

Also, because the application of more than 

one BMP at a time for a selected category 

would only provide incremental PM–10 

reductions, sometimes at an uneconomical 

cost, flexibility was provided in the rule to 

allow the expert (the farmer) to decide what 

BMP should be applied when and where.

As we discussed in the proposal for 

the 24-hour standard (see 24-hour 

standard proposal at 50268) and as we 

concluded in our original FIP measure 

for the agricultural sector (63 FR 41332), 

the BMP Committee found that 

agricultural PM–10 strategies must be 

based on local factors because of the 

variety, complexity, and uniqueness of 

farming operations and because 

agricultural sources vary by factors such 

as regional climate, soil type, growing 

season, crop type, water availability, 

and relation to urban centers. 

While the Committee surveyed 

measures adopted in other geographic 

areas, including South Coast, these 

measures were of limited utility in 

determining what measures are 

available for the Maricopa County area. 

Given the limited scientific information 

available and the myriad factors that 

affect farming operations, the BMP 

Committee concluded that requiring 

more than one BMP could not be 

considered technologically justified and 

could cause an unnecessary economic 

burden to farmers. BMP TSD, p. 18. 

Adding to concerns about the 

economic feasibility of requiring more 

BMPs per farming activity is the general 

uncertainty regarding the cost of the 

BMPs and continued viability of 

agriculture in Maricopa County. 

Between 1987 and 1997, the number of 

farms operating in Maricopa County 

declined by approximately 30 percent 

and the amount of land farmed declined 

by approximately 50 percent. This trend 

is expected to continue. Finally, in 

order to justify additional requirements 

for farming operations in the area 

beyond those in the general permit rule, 

the BMP Committee determined that a 

significant influx of money and 

additional research would be needed. 

Based on all of these factors, the BMP 

Committee concluded that the 

Handbook’s control requirements were 

neither technologically nor 

economically feasible for agricultural 

sources in Maricopa County and 

therefore are not feasible for the Phoenix 

area. BMP TSD, p. 18. 

We agree with the analysis of the BMP 

Committee. As noted previously, the 

development of the general permit rule 

was a multi-year endeavor involving an 

array of agricultural experts familiar 

with Maricopa County agriculture. 

Maricopa County is only the second 

area in the country where formal 

regulation of PM–10 emissions from the 

agricultural sector has ever been 

attempted. We conclude that the Rule 

403’s and the Handbook’s requirements 

are neither technologically nor 

economically feasible for Maricopa 

County and thus Arizona need not 

include them in the Phoenix serious 

area plan in order for us to grant an 

attainment date extension under CAA 

section 188(e).

Comment: ACLPI claims that there is 

no justification for relaxing the 

stringency of Rule 403 because virtually 

all of the control measures listed in Rule 

403 are in the Arizona rule and so it is 

clear that their implementation is 

feasible. ACLPI asserts that Arizona’s 

contention that ‘‘the application of more 

than one BMP at a time for a selected 

category would only provide for 

incremental PM–10 reductions 

sometimes at an uneconomical cost,’’ is 

not supported by any competent data, 

improperly delegates regulatory 

discretion to the regulated community, 

and ignores the clear mandates of the 

Act. 

Response: We agree that the many of 

the individual best management 

practices in the Rule 403 Agricultural 

Handbook are also feasible practices for 

the Phoenix area. Arizona, through the 

BMP committee, also agreed and 

incorporated many of them into the 

general permit rule. However, the 

feasibility and adoption of any one BMP 

has little relevance here because neither 

Rule 403, the Handbook, nor the general 

permit rule requires the implementation 

of any specific BMP, rather they require 

the implementation of at least one BMP 

from a list of possible BMPs for each of 

several categories of farm operations. 

As has been noted many times before, 

little data is available on the cost of 

implementing specific BMPs in the 

Phoenix area. Using what little data was 

available and the technical expertise of 

local farmers, state and federal 

agricultural agencies,21 and agricultural 

experts from the University of Arizona, 

Arizona determined that requiring the 

implementation at least one BMP for 

each of the three categories of 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48731

22This control format is also used in South 

Coast’s fugitive dust rules, including Rules 403, 

403.1, and 1186. We approved these rules on 

December 9, 1998 (63 FR 67784).

agricultural activities is the most 

stringent level of control that is 

economically and technologically 

feasible for the Phoenix area. This 

conclusion was arrived at only after a 

lengthy and open process and only after 

taking into consideration South Coast’s 

approach to agricultural control. See 66 

FR 3458, 34601.

We do not agree that the general 

permit rule improperly delegates 

regulatory discretion to the regulated 

community. The general permit rule 

follows the same general control format 

as Rules 310 and 310.01. This format 

allows the regulated entity (e.g., 

construction site operator, vacant lot 

owner, unpaved parking lot owner, etc.) 

to choose from a list of options for 

controlling its source.22 For example, an 

unpaved parking lot owner may pave, 

gravel, or apply a chemical stabilizer. 

See Rule 310.01, section 303.1. This 

control format is the standard model for 

fugitive dust rules and has developed 

over time because of the need to impose 

effective but reasonable and feasible 

controls on a large number of similar 

but distinct sources. For the Phoenix 

serious area plan, we have found that 

the control measures using this format 

provide for the implementation of 

BACM and the inclusion of MSM for a 

number of significant source categories. 

As much as (if not more so than) an 

unpaved parking lot owner or a vacant 

lot owner, a grower is in the best 

position to determine which BMPs are 

best and most effective for the 

conditions on his/her farm.

Comment: ACLPI asserts that because 

the general permit rule fails to require 

any specific control requirements, there 

is no way that the State can know or 

meaningfully predict what the effect of 

the rule will be and thus any estimated 

emissions reduction is entirely 

speculative and thus inadequate under 

the CAA. 

Response: As we noted in a previous 

comment, the general permit rule 

follows the same standard control 

format used by many fugitive dust rules, 

such as Rules 310 and 310.01 (and Rule 

403 and the Rule 403 Agricultural 

Handbook). This format allows the 

regulated entity to choose from a list of 

options for controlling its source. 

Emission reductions from these types 

of rules need to be quantified because 

they often constitute the primary control 

strategy needed to demonstrate 

attainment and/or RFP. The accepted 

methodology for quantifying them is to 

assume that some fraction of the 

regulated sources will choose a 

particular control option. For example, 

the assumption used in the Phoenix 

plan to quantify emission reductions 

from the unpaved parking lot measure is 

that one third of the regulated lots will 

be paved, one-third will be graveled, 

and one-third will be chemically 

stabilized. See MAG TSD, p. V–17. 

Provided that the assumptions are 

reasonable, we accept the resulting 

emission reductions estimate. 

To prepare the emission reductions 

estimates for the general permit rule, 

ADEQ hired URS. To estimate the 

reductions, URS determined the most 

likely implementation scenario. This 

scenario was based on available data on 

the crops grown and their acreage in the 

Phoenix area as well as on interviews of 

growers in the Phoenix area about 

which BMPs they would most likely use 

in certain situations. The growers, 

having intimate knowledge of the crops 

and growing conditions in the area, are 

the technical experts on how the BMP 

rule will be implemented. By going to 

the technical experts, URS and Arizona 

reduced the level of uncertainty in the 

emission reduction estimates to the 

extent practicable. 

We believe that their approach is 

reasonable given the situation. Most of 

the BMPs have never been applied in 

Maricopa County or elsewhere, and 

until the BMPs are fully implemented 

and ADEQ has had adequate time to 

evaluate their effectiveness, there will 

always be some degree of uncertainty 

regarding actual emission reductions. 

While it is possible that the reductions 

could be less than expected, it is equally 

plausible that the reductions will be 

greater than expected. 

We note that no matter how 

specifically a rule is written, no one can 

ever know for certain what the future 

emission reductions from it will be. 

Estimates of future emission reductions 

require assumptions about future 

activities that are always speculative to 

a degree. In making emission reduction 

estimates, we attempt to reduce the 

uncertainties to the extent possible, but 

we can never totally eliminate them. 

Quantification of emission reductions 

from rules is a necessary part of meeting 

the Act’s requirements for reasonable 

further progress and attainment 

demonstrations and quantitative 

milestones. Beyond setting the 

requirements (and requiring attainment 

demonstrations be based on air quality 

modeling, see, for example, CAA section 

189(b)(1)(A)), the Act leaves it to EPA’s 

expertise to determine what constitutes 

technically acceptable demonstrations. 

As we have discussed above, Arizona 

followed standard and accepted 

procedures for quantifying emission 

reductions from the BMP general permit 

rule and as a result we find the resulting 

estimates acceptable for the serious area 

plan.

Comment: ACLPI disagrees with 

EPA’s conclusion that the metropolitan 

Phoenix serious area plan adequately 

demonstrates that attainment by 

December 31, 2001 is impracticable 

because the plan fails to adopt all 

BACM for significant sources, fails to 

implement some measures in a timely 

manner or relies on mere commitments 

and improperly excludes BACM for de 

minimis sources. ACLPI asserts that the 

plan improperly fails to analyze 

whether the area would be in attainment 

by the 2001 deadline if all BACM were 

adopted and implemented on time. 

Response: We have carefully reviewed 

the plan and have found that it provides 

for the implementation of BACM, 

assures timely implementation of 

measures, and relies on enforceable 

commitments only where they are the 

only feasible means of providing for the 

implementation of BACM as required by 

CAA section 189(b)(1)(B). See annual 

standard proposal at 19984 and the 24-

hour standard proposal at 50273. 

As we have discussed previously, 

neither the CAA or EPA guidance 

requires the implementation of all 

BACM. Both only require that a state 

provide for the implementation of best 

available control measures on its 

significant source categories. Both also 

allow the de minimis sources to be 

exempted from the BACM requirement. 

See CAA section 189(b)(1)(B) and the 

Addendum at 42014. 

Contrary to ACLPI’s assertion, the 

plan does provide a clear demonstration 

that even with the implementation of 

BACM on all source categories 

including de minimis categories, the 

Phoenix area would not be in 

attainment of either PM–10 standard by 

the end of 2001. This demonstration is 

a necessary part of showing that the 

plan correctly determines which source 

categories are de minimis and which are 

significant. See MAG plan, pp. 9–9 to 9–

15 and the section ‘‘BACM Analysis—

Step 2, Model to Identify Significant 

Sources’’ in the EPA TSD. 

Comment: ACLPI disagrees with 

EPA’s conclusion that the metropolitan 

Phoenix serious area plan adequately 

demonstrates attainment by the earliest 

date practicable after December 31, 2001 

because the plan fails to adopt all 

feasible MSM, fails to implement some 

measures in a timely manner or relies 

on mere commitments and improperly 

excludes MSM for de minimis sources. 

ACLPI asserts that the plan improperly 

48732 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

fails to analyze whether the area would 

be in attainment earlier if all MSM were 

adopted and implemented in a timely 

manner. 

Response: We have carefully reviewed 

the plan and have found that it includes 

all feasible MSM to our satisfaction, 

assures timely implementation of 

measures, and relies on enforceable 

commitments only where they are the 

only feasible means of providing for the 

implementation of MSM or other 

measures necessary for timely 

attainment. See annual standard 

proposal at 19984 and the 24-hour 

standard proposal at 50274. We note 

again that the Phoenix serious area plan 

did not exclude any MSM on the basis 

of de minimis source categories.

Comment: ACLPI comments that the 

plan fails to include contingency 

measures, noting the purpose of 

contingency measures is to assure 

continued progress toward attainment 

while the SIP is being revised if a state 

fails to make RFP or attain by the 

applicable attainment date. ACLPI 

asserts that if a state fails to make RFP 

or timely attain, the obvious conclusion 

is that the currently implemented 

control measures are insufficient and 

additional measures are needed and that 

this is true regardless of whether the 

implemented measures were relied 

upon in the RFP and attainment 

demonstrations and for this reason, 

EPA’s suggestion that the contingency 

measure requirement can be satisfied by 

committed measures that are 

implemented but not relied upon in the 

demonstrations defeats the purpose. 

ACLPI contends that the proposed SIP 

must include contingency measures that 

will take effect without further action by 

the State or Administrator and the SIP 

does not include any such measures. 

Response: The metropolitan Phoenix 

serious area plan does contain 

contingency measures. For the annual 

standard, the plan relies on the 

agricultural BMP general permit rule as 

a contingency measure. For the 24-hour 

standard, the plan relies on the paving 

or treatment of unpaved roads measure. 

Both measures are currently being 

implemented but the emission 

reductions from them are not necessary 

for demonstrating RFP and attainment 

for the annual standard (general permit 

rule) and 24-hour standard (unpaved 

road measures). 

Failure to make RFP or attain does not 

necessarily mean that new controls 

must be adopted. Failure to make RFP 

or attain can be the result of the failure 

to implement already committed to or 

adopted controls, delays in the 

implementation of control measures, 

and noncompliance. In these cases, 

correcting the implementation problem 

or noncompliance corrects the RFP or 

attainment failure. 

There are a number of benefits to 

allowing and even encouraging the early 

implementation of contingency 

measures. The chief benefit is that their 

emission reductions and thus their 

public health benefit are realized early. 

Another is that it allows states to build 

uncredited cushions into their 

attainment and RFP demonstrations, a 

cushion which makes actual failures to 

make progress or attain less likely. 

Measures that have already been 

implemented clearly meet the section 

172(c)(9) requirement that contingency 

measures take effect without further 

action by the State or Administrator. 

Comment: ACLPI asserts that the 

Agricultural BMP general permit rule 

cannot be used as a contingency 

measure because it is not a ‘‘specific 

measure[ ] to be undertaken if the area 

fails to make reasonable further 

progress, or to attain the [NAAQS] 

***’’ and there is nothing in the rule 

that is triggered upon a showing of 

failure to make RFP. ACLPI quotes EPA 

guidance at 60 FR 56129 that 

‘‘[c]ontingency measures should consist 

of other control measures that are not 

part of the area’s control strategy.’’

Response: We note that the 

Agricultural BMP general permit rule is 

a contingency measure for the annual 

standard only. Emission reductions 

from the rule are not necessary to 

demonstrate RFP or expeditious 

attainment, and therefore, the rule is not 

part of Arizona’s primary control 

strategy for attaining the annual 

standard. Emission reductions from the 

rule are necessary to demonstrate RFP 

and expeditious attainment of the 24-

hour standard and the State chose a 

different measure, the unpaved road 

measure, to serve as the contingency 

measure for the 24-hour standard. 

Nothing in CAA section 172(c)(9) 

requires that contingency measure be 

triggered only if there is a failure to 

make RFP or to attain. Contingency 

measure must be undertaken if there is 

a failure to make RFP or attain but the 

Act does not bar a state from using other 

triggers as a reason to implement them, 

e.g., a determination that the measure is 

needed for attainment of another 

standard or to meet another CAA 

requirement. This is the case here; the 

BMP general permit rule is both needed 

for attainment of the 24-hour standard 

and to meet the CAA’s BACM 

requirement. 

Areas that must meet the BACM, 

MSM, and ‘‘attainment by the earliest 

alternative date practicable’’

requirement are in a difficult position 

when it comes to contingency measures. 

Adopted but unimplemented 

contingency measures are likely to be 

feasible BACM and/or MSM. We 

discussed this dilemma in the proposed 

approval for the 24-hour standard at 24-

hour standard proposal at 50279:

Certain core control measure requirements 

such as RACM, BACM, and MSM may result 

in a state adopting and expeditiously 

implementing more measures than are 

strictly necessary for expeditious attainment 

and/or RFP. Because of this and because 

these core requirements effectively require 

the implementation of all non-trivial 

measures that are technologically and 

economically feasible for the area, states are 

left with few, if any, substantive 

unimplemented control measures. In fact, 

under the Act’s PM–10 planning provisions, 

if there were a measure or set of measures 

that were technologically and economically 

feasible and could collectively generate 

substantial emission reductions, e.g., one 

year’s worth of RFP, then a state would be 

hard pressed to justify withholding their 

implementation. 

If we read the CAA to demand that the 

only acceptable contingency measure are 

those that are adopted but not implemented, 

then states face a difficult choice: adopt the 

controls for immediate implementation and 

clearly meet the core control measure 

requirements but fail the contingency 

measure requirement or adopt the control 

measures but hold implementation in reserve 

to meet the contingency measure requirement 

but potentially fail the core control measure 

requirements. 

However, states do not need to face this 

difficult choice if we read the CAA to allow 

adopted and implemented measures to serve 

as contingency measures, provided that those 

measures’ emission reductions are not 

needed to demonstrate expeditious 

attainment and/or RFP. There is nothing in 

the language of section 172(c)(9) that 

prohibits this interpretation.

ACLPI cites as EPA guidance, our 

1995 proposed approval of the moderate 

area PM–10 SIP for the Yakima, 

Washington nonattainment area. This 

proposal, however, simply affirms our 

position here. In this case, Washington 

State used as a contingency measure for 

the Yakima area, a wood stove buy back 

program. At the time we proposed to 

approve it as a contingency measure, the 

program had been in operation for more 

than two years and had already replaced 

70 wood stoves. We proposed to 

approve it as a contingency measure 

because the emission reductions from 

the program were ‘‘100 percent 

overcontrol,’’ that is, not necessary for 

attainment. See 60 FR 56129, 56132 

(November 7, 1995). We finalized this 

approval at 63 FR 5269 (February 2, 

1998).

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48733

V. Final Actions 

A. Approval of the Serious Area Plan 

We are taking final action to approve 

the following elements of the serious 

area PM–10 plan for the metropolitan 

Phoenix area. 

For the annual standard:

CAA provision (cite) SIP submittal and date Cite for proposed approval 

Base year emission inventory (section 

172(c)(3)).

MAG plan, February 16, 2000 ......................... Annual standard proposal at 19970. 

Demonstration that the plan provides for the implementation of RACM and BACM for each 

significant source category (sections 

189(a)(1)(c) and 189(b)(1)(b)): 

• On-road motor vehicles ........................... MAG plan, February 16, 2000 ......................... Annual standard proposal at 19973 and 24-

hour standard proposal at 50258. 

• Non-road motor vehicles ......................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 20260. 

• Paved road dust ...................................... MAG plan, February 16, 2000 ......................... Annual standard proposal at 50274. 

• Unpaved parking lots ............................... MAG plan, February 16, 2000 ......................... Annual standard proposal at 19976. 

• Disturbed vacant lots ............................... MAG plan, February 16, 2000 ......................... Annual standard proposal at 19977. 

• Unpaved roads ........................................ MAG plan, February 16, 2000 ......................... Annual standard proposal at 19978. 

• Construction activities and sites .............. MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50265. 

• Agriculture (BACM only) .......................... BMP TSD, June 13, 2001 ................................ 24-hour standard proposal at 50268. 

• Residential wood combustion .................. MAG plan, February 16, 2000 ......................... Annual standard proposal at 19982. 

• Secondary ammonium nitrate sources .... MAG plan, February 16, 2000 ......................... Annual standard proposal at 19982. 

Demonstration of the impracticability of attainment by 2001 where the State has applied 

for an attainment date extension under section 188(e) (section 189(b)(1)(A) (ii)).

MAG plan, February 16, 2000 ......................... Annual standard proposal 19984. 

Demonstration of attainment by the most expeditious alternative date practicable (section 

189(b)(1)(A) (ii)).

MAG plan, February 16, 2000 ......................... Annual standard proposal 19985. 

Demonstration of reasonable further progress 

(section 172(c)(2)).

MAG plan, February 16, 2000 ......................... Annual standard proposal 19988. 

Quantitative Milestones (section 189(c)) ............ MAG plan, February 16, 2000 ......................... Annual standard proposal 19988. 

Inclusion of the most stringent measures (section 188(e)).MAG plan, February 16, 2000 (except for agricultural sources); BMP TSD, June 13, 

2001 (agricultural sources).

Annual standard proposal at 19984 (except 

for agricultural sources); 24-hour standard 

proposal at 50268 (agricultural sources). 

Demonstration that major sources of PM-10 

precursors such as nitrogen oxides and sulfur 

dioxide do not contribute significantly to violations (section 189(e)).

MAG plan, February 16, 2000 ......................... Annual standard proposal 19971. 

Contingency measures (section 172(c)(9)) ........ MAG plan, February 16, 2000 as revised by 

BMP TSD, June 13, 2001.

24-hour standard proposal at 50279. 

Transportation conformity budget (section 

176(c)).

MAG plan, February 15, 2000 ......................... Annual standard proposal at 19970. 

Provisions for assuring adequate resources, 

personnel, and legal authority to carry out the 

plan (section 110(a)(2)(E)(i)).

MAG plan, February 16, 2000 (for all categories for both standards except for agriculture sources).Annual standard proposal at 19988 (except 

for agriculture sources), 24-hour standard 

proposal at 50280. 

For the 24-hour standard:

Base year emission inventory (section 

172(c)(3)).

MAG plan, February 16, 2000 ......................... Annual standard proposal at 19970. 

Demonstration that the plan provides for the implementation of RACM and BACM for each 

significant source category (sections 

189(a)(1)(c) and 189(b)(1)(b)): 

• On-road motor vehicles ........................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50258 and 

50259. 

• Non-road motor vehicles ......................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50259. 

• Paved road dust ...................................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50260. 

• Unpaved parking lots ............................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50263. 

• Disturbed vacant lots ............................... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50263. 

• Unpaved roads ........................................ MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50264. 

• Construction activities and sites .............. MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50265. 

• Agriculture (BACM only) .......................... BMP TSD, June 13, 2001 ................................ 24-hour standard proposal at 50268. 

• Residential wood combustion .................. MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50271. 

• Secondary ammonium nitrate sources .... MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50271. 

Demonstration of the impracticability of attainment by 2001 where the State has applied 

for an attainment date extension under section 188(e) (section 189(b)(1)(A) (ii)).

MAG plan, February 16, 2000 (regional); BMP 

TSD, June 13, 2001 (Gilbert and West 

Chandler).

24-hour standard proposal at 50273. 

Demonstration of attainment by the most 

expeditioius alternative date practicable (section 189(b)(1)(A)(ii)).

Mag plan, February 16, 2000 (regional); BMP 

TSD, June 13, 2001 (Gilbert and West 

Chandler).

24-hour standard proposal at 50275. 

48734 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

23Because the woodburning restrictions 

ordinance is also a provision in the State’s carbon 

monoxide SIP, we have also considered the impact 

on the CO plan of approving the revised version. 

The revision to the ordinance strengthens its PM–

10 provisions but does not make changes to its CO 

provisions; therefore, its approval will not interfere 

CO SIP’s provisions for attainment, RFP, or RACM.

CAA provision (cite) SIP submittal and date Cite for proposed approval 

Demonstration of reasonable further progress 

(section 172(c)(2)).

BMP TSD, June 13, 2001 ................................ 24-hour standard proposal at 50278. 

Quantitative Milestones (section 189(c)) ............ BMP TSD, June 13, 2001 ................................ 24-hour standard proposal at 50279. 

Inclusion of the most stringent measures (section 188(e)).MAG plan, February 16, 2000 except for (agricultural sources) BMP TSD, June 13, 

2001 (agricultural sources).

24-hour standard proposal at 50274. 

Demonstration that major sources of PM–10 

precursors such as nitrogen oxides and sulfur 

dioxide do not contribute significantly to violations (section 189(e)).

MAG plan, February 16, 2000 ......................... 24-hour standard proposal at 50257. 

Contingency measures (section 172(c)(9)) ........ MAG plan, February 16, 2000 as revised by 

BMP TSD, June 13, 2001.

24-hour standard proposal at 50279. 

Transportation conformity budget (section 

176(c)).

MAG plan, February 15, 2000 ......................... 24-hour standard proposal at 50256. 

Provisions for assuring adequate resources, 

personnel, and legal authority to carry out the 

plan (section 110(a)(2)(E)(i)).

MAG plan, February 16, 2000 (except for agriculture sources).24-hour standard proposal at 50280. 

B. Extension of the Attainment Date 

As authorized by CAA section 188(e), 

we are granting Arizona’s request for a 

five-year extension of the date for 

attaining both the annual and 24-hour 

PM–10 standards. Our decision to grant 

the extension is based on our 

determination that the State has met the 

necessary requirements for granting an 

extension of the attainment date under 

CAA section 188(e). See annual 

standard proposal at 19988 and 24-hour 

standard proposal at 50278. The fiveyear extension means that the statutory 

attainment date for both standards in 

the Phoenix nonattainment area is now 

December 31, 2006. 

C. Approvals of Rules and 

Commitments 

We are also approving the following 

rules and commitments that we 

proposed for approval in the annual 

standard proposal at 65 FR 19964:

Rule/commitment

(Date of adoption of revision) Submittal date 

MCESD Rule 310 (Revised February 16, 2000) ............................................................................................... March 2, 2000. 

MCESD Rule 310.01 (Adopted February 16, 2000) .......................................................................................... March 2, 2000. 

Maricopa County Residential Woodburning Ordinance (Revised November 17, 1999) ................................... January 28, 2000. 

We are also approving numerous 

resolutions adopted in 1997, 1998, and 

1999 by the cities and town of the 

metropolitan Phoenix area as well as by 

the Arizona Department of 

Transportation, Regional Public 

Transportation Agency, and ADEQ. 

Finally, we are approving Maricopa 

County’s commitments including the 

revised commitments adopted on 

December 19, 2001 and submitted on 

January 8, 2002. 

CAA section 110(l) prohibits us from 

approving a revision to the applicable 

implementation plan if that revision 

would interfere with any applicable 

requirement concerning attainment and 

RFP or any other applicable requirement 

of the Act. We interpret section 110(l) to 

mean, among other things, that we 

cannot approve a plan revision if that 

revision would mean that the state’s 

plans would no longer provide for 

attainment or RFP as these are required 

by the CAA or if the revision would 

mean that the State’s plans would no 

longer meet another applicable 

requirement of the Act.

We are revising the Arizona SIP to 

incorporate the amended Rule 310, Rule 

310.01 and the Maricopa County 

Residential Woodburning Ordinance in 

place of the previous version of Rule 

310 approved in August, 1997 and of 

the ordinance approved in November, 

1999. In addition to the effect on 

attainment and RFP, the ‘‘other 

applicable requirement of the Act’’ that 

we are concerned with here are the 

Act’s requirements for implementation 

of RACM and BACM and the inclusion 

in the plan of MSM. 

We are approving the expeditious 

attainment and RFP demonstrations for 

both PM–10 standards in the Phoenix 

serious area plan. These demonstrations 

are in part dependent on approval of the 

revised Rule 310, Rule 310.01, and the 

woodburning ordinance. 

We are also finding that the Phoenix 

serious area plan provides for the 

implementation of RACM and BACM 

and the inclusion of the MSM for the 

sources subject to these rules and 

ordinance (construction sites, unpaved 

roads, unpaved parking lots, and 

disturbed vacant lands, and residential 

wood burning). Again, these findings 

are in large part dependent on approval 

of the revised Rule 310 and Rule 310.01. 

We, therefore, find that the approval of 

the revised Rule 310, Rule 310.01, and 

the Residential Woodburning 

Restrictions Ordinance will not interfere 

with Arizona PM–10 applicable 

implementation plan’s compliance with 

the Clean Air Act’s requirements for 

attainment, RFP, implementation of 

RACM and BACM, and inclusion of 

MSM.23

D. Correction of Previous SIP 

Disapprovals 

We are finding that Arizona has 

corrected the deficiencies that resulted 

in the following disapprovals:

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48735

Disapproved element Date and cite of disapproval Correction 

Implementation of RACM and BACM for unpaved roads, unpaved 

parking lots, disturbed vacant lots, and agriculture (24-hour standard).

August 4, 1997 62 FR 41856, 

41862.

Approved RACM and BACM demonstration for the affected categories.1

Demonstration of attainment and RFP for the West chandler site (24-

hour standard).

August 4, 1997 62 FR 41856, 

41862.

Approved attainment and RFP 

demonstration. 

Demonstration of attainment and RFP for the Gilbert site (24-hour) ...... August 4, 1997 62 FR 41856, 

41862.

Approved attainment and RFP 

demonstration. 

Implementation of RACM (annual standard) ........................................... August 3, 1998 63 FR 41326, 

41329.

Approved RACM demonstration. 

Demonstration of attainment (moderate area deadline, annual standard).August 3, 1998 63 FR 41326, 

41329.

Approved attainment demonstration. 

1We approved the RACM demonstration for agricultural sources on October 11, 2001 at 66 FR 51869. 

The correction of the deficiencies that 

caused the last two listed disapprovals 

also permanently lifts the offset sanction 

currently imposed but stayed on the 

Phoenix area and ends the clock for 

imposition of the highway funding 

sanction. 

The full approval of the metropolitan 

Phoenix serious area PM–10 plan also 

ends the FIP clock started by the 

February 6, 1998 finding that the State 

had failed to submit the plan by the 

required deadline. See 63 FR 9423 

(February 23, 1998). 

VI. Administrative Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 32111, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001). This action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state plan and rules 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This rule also is not subject to 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 23, 

2002. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements.

Dated: January 14, 2002. 

Wayne Nastri, 

Regional Administrator, Region 9.

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 

continues to read as follows:

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

48736 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

Subpart D—Arizona 

2. Section 52.120 is amended by 

adding paragraphs (c)(99), (100), (101), 

and (102) to read as follows:

§ 52.120 Identification of plan.

* * * * *

(c) * * * 

(99) Plan revisions submitted on 

January 28, 2000 by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) Maricopa County, Arizona. 

(1) Residential Woodburning 

Restriction Ordinance adopted on 

November 17, 1999. 

(100) Plan revisions submitted on 

February 16, 2000 by the Governor’s 

designee. 

(i) Incorporation by reference. 

(A) Maricopa Association of 

Governments, Maricopa County, 

Arizona. 

(1) Resolution to Adopt the Revised 

MAG 1999 Serious Area Particulate Plan 

for PM–10 for the Maricopa County 

Nonattainment Area (including Exhibit 

A, 2 pages), adopted on February 14, 

2000. 

(B) City of Avondale, Arizona. 

(1) Resolution No. 1711–97; A 

Resolution of the City Council of the 

City of Avondale, Maricopa County, 

Arizona, To Implement Measures in the 

MAG 1997 Serious Area Particulate Plan 

for PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 14 

pages), adopted on September 15, 1997. 

(2) Resolution No. 1949–99; A 

Resolution of the Council of the City of 

Avondale, Maricopa County, Arizona, 

Implementing Measures in the MAG 

1998 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 7 pages), adopted 

on February 16, 1999. 

(C) Town of Buckeye, Arizona. 

(1) Resolution No. 15–97; A 

Resolution of the Town Council of the 

Town of Buckeye, Maricopa County, 

Arizona, To Implement Measures in the 

MAG 1997 Serious Area Carbon 

Monoxide Plan for the Maricopa County 

Area (including Exhibit A, 5 pages), 

adopted on October 7, 1997. 

(D) Town of Carefree, Arizona. 

(1) Town of Carefree Resolution No. 

97–16; A Resolution of the Mayor and 

Common Council of the Town of 

Carefree, Arizona, To Implement 

Measures in the MAG 1997 Serious Area 

Particulate Plan for PM–10 and MAG 

1998 Serious Area Carbon Monoxide 

Plan for the Maricopa County Area 

(including Exhibit A, 3 pages), adopted 

on September 2, 1997. 

(2) Town of Carefree Resolution No. 

98–24; A Resolution of the Mayor and 

Common Council of the Town of 

Carefree, Arizona, To Implement 

Measures in the MAG 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 4 pages), adopted on 

September 1, 1998. 

(3) Town of Carefree Ordinance No. 

98–14; An Ordinance of the Town of 

Carefree, Maricopa County, Arizona, 

Adding Section 10–4 to the Town Code 

Relating to Clean-Burning Fireplaces, 

Providing Penalties for Violations (3 

pages), adopted on September 1, 1998. 

(E) Town of Cave Creek, Arizona. 

(1) Resolution R97–28; A Resolution 

of the Mayor and Town Council of the 

Town of Cave Creek, Maricopa County, 

Arizona, Implementing Measures in the 

MAG 1997 Serious Area Particulate Plan 

for PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 4 

pages), adopted on September 2, 1997. 

(2) Resolution R98–14; A Resolution 

of the Mayor and Town Council of the 

Town of Cave Creek, Maricopa County, 

Arizona, To Implement Measures in the 

MAG 1998 Serious Area Particulate Plan 

for PM–10 for the Maricopa County 

Area (including Exhibit A, 1 page), 

adopted on December 8, 1998. 

(F) City of Chandler, Arizona. 

(1) Resolution No. 2672; A Resolution 

of the City Council of the City of 

Chandler, Arizona To Implement 

Measures in the MAG 1997 Serious Area 

Particulate Plan for PM–10 and MAG 

1998 Serious Area Carbon Monoxide 

Plan for the Maricopa County Area 

(including Exhibit A, 16 pages), adopted 

on August 14, 1997. 

(2) Resolution No. 2929; A Resolution 

of the City Council of the City of 

Chandler, Arizona, To Implement 

Measures in the MAG 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 9 pages), adopted on October 

8, 1998. 

(G) City of El Mirage, Arizona. 

(1) Resolution No. R97–08–20; 

Resolution To Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 and MAG 1998 Serious 

Area Carbon Monoxide Plan for the 

Maricopa County Area (including 

Exhibit A, 8 pages), adopted on August 

28, 1997. 

(2) Resolution No. R98–08–22; A 

Resolution of the Mayor and Common 

Council of the City of El Mirage, 

Arizona, Amending Resolution No. 

R98–02–04 To Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 for the Maricopa County 

Area (including Exhibit A, 5 pages), 

adopted on August 27,1998. 

(3) Resolution No. R98–02–04; A 

Resolution To Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 for the Maricopa County 

Area (including Exhibit A, 5 pages), 

adopted on February 12,1998. 

(H) Town of Fountain Hills, Arizona. 

(1) Resolution No. 1997–49; A 

Resolution of the Common Council of 

the Town of Fountain Hills, Arizona, 

Adopting the MAG 1997 Particulate 

Plan for PM–10 and MAG 1998 Serious 

Area Carbon Monoxide Plan for the 

Maricopa County Area and Committing 

to Certain Implementation Programs 

(including Exhibit B, 5 pages and cover), 

adopted on October 2, 1997.

(2) Town of Fountain Hills Resolution 

No. 1998–49; Resolution To Implement 

Measures in the MAG 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 7 pages), adopted on October 

1, 1998. [Incorporation Note:

Incorporated materials are pages 4 to 10 

of the 11-page resolution package; pages 

1 and 2 are cover sheets with no 

substantive content and page 11 is a 

summary of measures previously 

adopted by the Town of Fountain Hills.] 

(I) Town of Gilbert, Arizona. 

(1) Resolution No. 1817; A Resolution 

of the Common Council of the Town of 

Gilbert, Maricopa County, Arizona, 

Authorizing the Implementation of the 

MAG 1997 Serious Area Particulate Plan 

for PM–10 and the MAG Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including 15 pages of 

attached material), adopted on June 10, 

1997. 

(2) Resolution No. 1864; A Resolution 

of the Common Council of the Town of 

Gilbert, Arizona, Implementing 

Measures in the MAG 1997 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Attachment A, 5 pages), adopted on 

November 25, 1997. [Incorporation 

note: Attachment A is referred to as 

Exhibit A in the text of the Resolution.] 

(3) Ordinance 1066; An Ordinance of 

the Common Council of the Town of 

Gilbert, Arizona Amending the Code of 

Gilbert by Amending Chapter 30 

Environment, by adding New Article II 

Fireplace Restrictions Prescribing 

Standards for Fireplaces, Woodstoves, 

and Other Solid-Fuel Burning Devices 

in New Construction; Providing for an 

Effective Date of January 1, 1999; 

Providing for Repeal of Conflicting 

Ordinances; Providing for Severability 

(3 pages), adopted on November 25, 

1997. 

(4) Resolution No. 1939: A Resolution 

of the Common Council of the Town of 

Gilbert, Arizona, Expressing its 

Commitment to Implement Measures in 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48737

the Maricopa Association of 

Governments (MAG) 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Attachment A, 5 pages), adopted on July 

21, 1998. [Incorporation note:

Attachment A is referred to as Exhibit 

A in the text of the Resolution.] 

(J) City of Glendale, Arizona. 

(1) Resolution No. 3123 New Series; A 

Resolution of the Council of the City of 

Glendale, Maricopa County, Arizona, 

Implementing Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 20 

pages), adopted on June 10, 1997. 

(2) Resolution No. 3161 New Series; A 

Resolution of the Council of the City of 

Glendale, Maricopa County, Arizona, 

Implementing Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 6 pages), adopted 

on October 28, 1997. 

(3) Resolution No. 3225 New Series; A 

Resolution of the Council of the City of 

Glendale, Maricopa County, Arizona, 

Implementing Measures in the MAG 

1998 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 9 pages), adopted 

on July 28, 1998. 

(K) City of Goodyear, Arizona. 

(1) Resolution No. 97–604 Carbon 

Monoxide Plan; A Resolution of the 

Council of the City of Goodyear, 

Maricopa County, Arizona, 

Implementing Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 21 

pages), adopted on September 9. 

[Incorporation note: Adoption year not 

given on the resolution but is 

understood to be 1997 based on 

resolution number.] 

(2) Resolution No. 98–645; A 

Resolution of the Council of the City of 

Goodyear, Maricopa County, Arizona, 

Implementing Measures in the MAG 

1998 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Attachment III, 7 pages), 

adopted on July 27, 1998. 

(L) City of Mesa, Arizona. 

(1) Resolution No. 7061; A Resolution 

of the City Council of the City of Mesa, 

Maricopa County, Arizona, to 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

and MAG 1998 Serious Area Carbon 

Monoxide Plan for the Maricopa County 

Area (including Exhibit A, 13 pages plus 

index page), adopted on June 23, 1997. 

(2) Resolution No. 7123; A Resolution 

of the City Council of the City of Mesa, 

Maricopa County, Arizona, to 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area 

(including Exhibit A, 10 pages), adopted 

on December 1, 1997. 

(3) Resolution No. 7360; A Resolution 

of the City Council of the City of Mesa, 

Maricopa County, Arizona, to 

Implement Measures in the MAG 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area 

(including Exhibit A, 8 pages), adopted 

on May 3, 1999. 

(4) Ordinance No. 3434; An 

Ordinance of the City Council of the 

City of Mesa, Maricopa County, 

Arizona, Relating to Fireplace 

Restrictions Amending Title 4, Chapter 

1, Section 2 Establishing a Delayed 

Effective Date; and Providing Penalties 

for Violations (3 pages), adopted on 

February 2, 1998. 

(M) Town of Paradise Valley, Arizona. 

(1) Resolution Number 913; A 

Resolution of the Town of Paradise 

Valley, to Implement Measures in the 

MAG 1997 Serious Area Particulate Plan 

for PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 9 

pages), adopted on October 9, 1997.

(2) Resolution Number 945; A 

Resolution of the Mayor and Town 

Council of the Town of Paradise Valley, 

Arizona, to Implement Measures in the 

MAG 1998 Serious Area Particulate Plan 

for PM–10 for the Maricopa County 

Area (including Exhibit A, 5 pages), 

adopted on July 23, 1998. 

(3) Ordinance Number 454; An 

Ordinance of the Town of Paradise 

Valley, Arizona, Relating to Grading and 

Dust Control, Amending Article 5–13 of 

the Town Code and Sections 5–13–1 

Through 5–13–5, Providing Penalties for 

Violations and Severability (5 pages), 

adopted on January 22, 1998. 

[Incorporation note: There is an error in 

the ordinance’s title, ordinance 

amended only sections 5–13–1 to 5–13–

4; see section 1 of the ordinance.] 

(4) Ordinance Number 450; An 

Ordinance of the Town of Paradise 

Valley, Arizona, Adding Section 5–1–7 

to the Town Code Relating to CleanBurning Fireplaces, Providing Penalties 

for Violations (3 pages), adopted on 

December 18, 1997. 

(N) City of Peoria, Arizona. 

(1) Resolution No. 97–37; A 

Resolution of the Mayor and Council of 

the City of Peoria, Arizona, to 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

and MAG 1998 Serious Area Carbon 

Monoxide Plan for the Maricopa County 

Area (including Exhibits A, 5 pages, and 

B, 19 pages), adopted on June 17, 1997. 

(2) Resolution No. 97–113; A 

Resolution of the Mayor and Council of 

the City of Peoria, Arizona, to 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area and 

Directing the Recording of This 

Resolution with the Maricopa County 

Recorder and Declaring an Emergency 

(including Exhibit A, 8 pages plus index 

page), adopted on October 21, 1997. 

(3) Resolution No. 98–107; A 

Resolution of the Mayor and Council of 

the City of Peoria, Arizona, to Approve 

and Authorize the Acceptance to 

Implement Measures in the MAG 1998 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area 

(including Exhibit A, 7 pages), adopted 

on July 21, 1998. 

(O) City of Phoenix, Arizona. 

(1) Resolution No. 18949; A 

Resolution Stating the City’s Intent to 

Implement Measures to Reduce Air 

Pollution (including Exhibit A, 19 

pages), adopted on July 2, 1997. 

(2) Resolution No. 19006; A 

Resolution Stating the City’s Intent to 

Implement Measures to Reduce Air 

Pollution (including Exhibit A, 13 

pages), adopted on November 19, 1997. 

(3) Ordinance No. G4037; An 

Ordinance Amending Chapter 39, 

Article 2, Section 39–7 of the Phoenix 

City Code by Adding Subsection G 

Relating to Dust Free Parking Areas; and 

Amending Chapter 36, Article XI, 

Division I, Section 36–145 of the 

Phoenix City Code Relating to Parking 

on Non-Dust Free Lots, adopted on July 

2, 1997 (5 pages).

(4) Resolution No. 19141; A 

Resolution Stating the City’s Intent to 

Implement Measures to Reduce 

Particulate Air Pollution (including 

Exhibit A, 10 pages), adopted on 

September 9, 1998. 

(5) Ordinance No. G4062; An 

Ordinance Amending the Phoenix City 

Code By Adding A New Chapter 40 

‘‘Environmental Protections,’’ By 

Regulating Fireplaces, Wood Stoves and 

Other Solid-Fuel Burning Devices and 

Providing that the Provisions of this 

Ordinance Shall Take Effect on 

December 31, 1998 (5 pages), adopted 

on December 10, 1997. 

(P) Town of Queen Creek, Arizona. 

(1) Resolution 129–97; A Resolution 

of the Town Council of the Town of 

Queen Creek, Maricopa County, Arizona 

to Implement Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 3 

pages), adopted on June 4, 1997. 

(2) Resolution 145–97; A Resolution 

of the Town Council of the Town of 

48738 Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 

Queen Creek, Maricopa County, Arizona 

to Implement Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 1 page), adopted 

on November 5, 1997. 

(3) Resolution 175–98; A Resolution 

of the Town Council of the Town of 

Queen Creek, Maricopa County, Arizona 

to Implement Measures in the MAG 

1998 Serious Area Particulate Plan for 

the Maricopa County Area (including 

Exhibit A, 9 pages), adopted on 

September 16, 1998. 

(Q) City of Scottsdale, Arizona. 

(1) Resolution No. 4864; A Resolution 

of the City of Scottsdale, Maricopa 

County, Arizona, To Implement 

Measures in the MAG 1997 Serious Area 

Particulate Plan for PM–10 and MAG 

1998 Serious Area Carbon Monoxide 

Plan for the Maricopa County Area: 

Stating the Council’s Intent to 

Implement Certain Control Measures 

Contained in that Plan (including 

Exhibit A, 21 pages), adopted on August 

4, 1997. 

(2) Resolution No. 4942; Resolution of 

the Scottsdale City Council To 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area 

(including Exhibit A, 13 pages), adopted 

on December 1, 1997. 

(3) Resolution No. 5100; A Resolution 

of the City of Scottsdale, Maricopa 

County, Arizona, To Strengthen 

Particulate Dust Control and Air 

Pollution Measures in the Maricopa 

County Area (including Exhibit A, 10 

pages), adopted on December 1, 1998. 

(R) City of Surprise, Arizona. 

(1) Resolution No. 97–29; A 

Resolution to Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 and MAG 1998 Serious 

Area Carbon Monoxide Plan for the 

Maricopa County Area (including 

Exhibit A, 4 pages), adopted on June 12, 

1997. 

(2) Resolution No. 97–67; A 

Resolution to Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 for the Maricopa County 

Area (including Exhibit A, 3 pages), 

adopted on October 23, 1997. 

(3) Resolution No. 98–51; A 

Resolution to Implement Measures in 

the MAG 1997 Serious Area Particulate 

Plan for PM–10 for the Maricopa County 

Area (including Exhibit A, 6 pages), 

adopted on September 10, 1998. 

(s) City of Tempe, Arizona. 

(1) Resolution No. 97.39; Resolution 

to Implement Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 18 

pages), adopted on June 12, 1997. 

(2) Resolution No. 97.71, Resolution 

of the Council of the City of Tempe 

Stating Its Intent to Implement Measures 

in the MAG 1997 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 6 pages), adopted on 

November 13, 1997. 

(3) Resolution No. 98.42, Resolution 

of the Council of the City of Tempe 

Implementing Measures in the MAG 

1998 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 8 pages), adopted 

on September 10, 1998. 

(T) City of Tolleson, Arizona. 

(1) Resolution No. 788, A Resolution 

of the Mayor and City Council of the 

City of Tolleson, Maricopa County, 

Arizona, Implementing Measures in the 

Maricopa Association of Governments 

(MAG) 1997 Serious Area Particulate 

Plan for PM–10 and MAG 1998 Serious 

Area Carbon Monoxide Plan for the 

Maricopa County Area (including 

Exhibit A, 12 pages), adopted on June 

10, 1997. 

(2) Resolution No. 808, A Resolution 

of the Mayor and City Council of the 

City of Tolleson, Maricopa County, 

Arizona, Implementing Measures in the 

Maricopa Association of Governments 

(MAG) 1998 Serious Area Particulate 

Plan for PM–10 for the Maricopa County 

Area (including Exhibit A), adopted on 

July 28, 1998. 

(3) Ordinance No. 376, N.S., An 

Ordinance of the City of Tolleson, 

Maricopa County, Arizona, Amending 

Chapter 7 of the Tolleson City Code by 

Adding a New Section 7–9, Prohibiting 

the Installation or Construction of a 

Fireplace or Wood Stove Unless It Meets 

the Standards Set Forth Herein 

(including Exhibit A, 4 pages), adopted 

on December 8, 1998. 

(U) Town of Wickenburg, Arizona. 

(1) Resolution No. 1308, Resolution 

To Implement Measures in the MAG 

1997 Serious Area Particulate Plan for 

PM–10 and MAG 1998 Serious Area 

Carbon Monoxide Plan for the Maricopa 

County Area (including Exhibit A, 4 

pages), adopted on August 18, 1997. 

(V) Town of Youngtown, Arizona. 

(1) Resolution No. 97–15, Resolution 

To Implement Measures in the MAG 

1997 Serious Particulate Plan for PM–10 

and MAG 1998 Serious Area Carbon 

Monoxide Plan for the Maricopa County 

Area (including Exhibit A, 4 pages), 

adopted on September 18, 1997.

(2) Resolution No. 98–15: Resolution 

To Implement Measures in the MAG 

1998 Serious Area Particulate Plan for 

PM–10 for the Maricopa County Area 

(including Exhibit A, 8 pages), adopted 

on August 20, 1998. 

(3) Resolution No 98–05: Resolution 

Stating Intent to Work Cooperatively 

with Maricopa County to Control the 

Generation of Fugitive Dust Pollution 

(including Exhibit A, 2 pages), adopted 

February 19, 1998. 

(W) Maricopa County, Arizona. 

(1) Resolution to Implement Measures 

in the MAG 1997 Serious Area 

Particulate Plan for PM–10 and MAG 

1A998 Serious Area Carbon Monoxide 

Plan for the Maricopa County Area 

(including Exhibit A, 16 pages), adopted 

on June 25, 1997. [Incorporation note:

‘‘1A998’’ error in the original.] 

(2) Resolution to Implement Measures 

in the MAG 1997 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 9 pages), adopted on 

November 19, 1997. 

(3) Resolution to Implement Measures 

in the MAG 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 10 pages), adopted on 

February 17, 1999. 

(4) Resolution to Implement Measures 

in the MAG 1999 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 10 pages), adopted on 

December 15, 1999. 

(X) Arizona Department of 

Transportation, Phoenix, Arizona. 

(1) Resolution to Implement Measures 

in the MAG 1997 Serious Area 

Particulate Plan for PM–10 and MAG 

1998 Serious Area Carbon Monoxide 

Plan for the Maricopa County Area 

(including Exhibit A, 24 pages plus 

index page), adopted on June 20, 1997. 

(2) Resolution to Implement Measures 

in the MAG 1998 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Area (including 

Exhibit A, 8 pages), adopted on July 17, 

1998. 

(Y) Regional Public Transportation 

Authority, Phoenix, Arizona. 

(1) Resolution #9701: Resolution to 

Implement Measures in the MAG 1997 

Serious Area Particulate Plan for PM–10 

and MAG 1998 Serious Area Carbon 

Monoxide Plan for the Maricopa County 

Area (including Exhibit A, 23 pages), 

adopted on June 12, 1997. 

(Z) State of Arizona. 

(1) Arizona Revised Statute Section 

49–542(F)(7) as added in Section 31 of 

Arizona Senate Bill 1002, 42nd 

Legislative Session, 7th Special Session 

(1996), approved by the Governor July 

18, 1996. 

(101) Plan revisions submitted on 

March 2, 2000, by the Governor’s 

designee. 

Federal Register / Vol. 67, No. 143 / Thursday, July 25, 2002 / Rules and Regulations 48739

(i) Incorporation by reference. 

(A) Maricopa County Environmental 

Services Department. 

(1) Rule 310 revised on February 16, 

2000. 

(2) Rule 310.01 adopted on February 

16, 2000. 

(3) Appendix C revised on February 

16, 2000.

(102) Plan revisions submitted on 

January 8, 2002, by the Governor’s 

designee. 

(i) Incorporation by reference. 

(1) Maricopa County, Arizona. 

(1) Resolution to Update Control 

Measure 6 in the Revised MAG 1999 

Serious Area Particulate Plan for PM–10 

for the Maricopa County Area 

(including Exhibit A, 2 pages), adopted 

on December 19, 2001.

* * * * *

3. Section 52.123 is amended by 

removing and reserving paragraph 

(f)(1)(i)and adding paragraph (j) to read 

as follows:

§ 52.123 Approval status.

* * * * *

(j) The Administrator is approving the 

following elements of the Metropolitan 

Phoenix PM–10 Nonattainment Area 

Serious Area PM–10 Plan as contained 

in Revised Maricopa Association of 

Governments 1999 Serious Area 

Particulate Plan for PM–10 for the 

Maricopa County Nonattainment Area,

February 2000, submitted February 16, 

2000 and Maricopa County PM–10 

Serious Area State Implementation Plan 

Revision, Agricultural Best Management 

Practices (BMP), ADEQ, June 2000, 

submitted on June 13, 2001: 

(1) 1994 Base year emission inventory 

pursuant to Clean Air Act section 

172(c)(3). 

(2) The Provisions for implementing 

on all significant source categories 

reasonably available control measures 

(except for agricultural sources) and best 

available control measures for the 

annual and 24-hour PM–10 NAAQS 

pursuant to section Clean Air Act 

sections 189(a)(1)(c) and 189(b)(1)(b)). 

(3) The demonstration of the 

impracticability of attainment by 

December 31, 2001 for the annual and 

24-hour PM–10 NAAQS pursuant to 

Clean Air Act section 189(b)(1)(A)(ii). 

(4) The demonstration of attainment 

by the most expeditious alternative date 

practicable for the annual and 24-hour 

PM–10 NAAQS pursuant to Clean Air 

Act section 189(b)(1)(A)(ii). 

(5) The demonstration of reasonable 

further progress for the annual and 24-

hour PM–10 NAAQS pursuant to Clean 

Air Act section 172(c)(2). 

(6) The quantitative milestones for the 

annual and 24-hour PM–10 NAAQS 

pursuant to Clean Air Act section 

189(c). 

(7) The inclusion of the most stringent 

measures for the annual and 24-hour 

PM–10 NAAQS pursuant to Clean Air 

Act section 188(e). 

(8) The demonstration that major 

sources of PM–10 precursors do not 

contribute significantly to violations for 

the annual and 24-hour PM–10 NAAQS 

pursuant to Clean Air Act section 

189(e). 

(9) The contingency measures for the 

annual and 24-hour PM–10 NAAQS 

pursuant to Clean Air Act section 

172(c)(9). 

(10) The transportation conformity 

budget for the annual and 24-hour PM–

10 NAAQS pursuant to Clean Air Act 

section 176(c). 

(11) The provisions for assuring 

adequate resources, personnel, and legal 

authority to carry out the plan for the 

annual and 24-hour PM–10 NAAQS 

pursuant to Clean Air Act section 

110(a)(2)(E)(i).

§ 52.124 [Amended] 

4. Section 52.124 is amended by 

removing and reserving paragraphs (b) 

and (c).

[FR Doc. 02–18171 Filed 7–24–02; 8:45 am] 

BILLING CODE 6560–50–P