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

A review of the environmental effect

of the proposed measurement rule

changes concludes that the proposed

change will not have a significant effect

on the quality of the human

environment. An environmental impact

statement is not required under the

National Environmental Policy Act of

1969.

Finally, the Administrator of the

Panama Canal Commission certifies that

these proposed regulations meet the

applicable standards provided in

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

Order No. 12778.

List of Subjects in 35 Part 103

Advance reservations, Booking

system, Order of transit, Panama Canal,

Vessels.

Accordingly, for the reasons set forth

above, it is proposed that 35 CFR part

103 be amended as follows:

PART 103-GENERAL PROVISIONS

GOVERNING VESSELS

1. The authority citation for part 103

is revised to read as follows:

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

FR 36043, 3 CFR, 1981 Comp., p. 257.

2. Paragraph (e) of § 103.8 is revised

to read as follows:

§ 103.8 Preference in the transit schedule;

order of transiting vessels.

(e) Booking Fees. (1) For vessels

measured in accordance with

§ 135.13(a) of this chapter, the fee for

booking shall be $0.26 per PC/UMS Net

Ton.

(2) For vessels subject to the

transitional relief measures of § 135.31

of this chapter and measured in

accordance with § 135.13(b) of this

chapter, the fee for booking shall be

$0.23 per Panama Canal Gross Ton as

specified on the last certificate issued by

the Panama Canal Commission between

March 23, 1976 and September 30,

1994, inclusive.

(3) The minimum booking fee for any

vessel is $1,500.

(Existing collections of information are

approved under Office of Management

and Budget (OMB) control number

3207-0001. Modifications are being

submitted to OMB for approval.)

Dated: August 10, 1994.

Gilberto Guaidia F.,

Administrator, Panama Canal Commission.

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

BILLING CODE 3640-04-P

ENVIRONMENTAL PROTECTION

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[FRL-6052-2]

State Implementation Plans for Serious

PM-10 Nonattainment Areas, and

Attainment Date Waivers for PM-10

Nonattainment Areas Generally;

Addendum to the General Preamble for

the Implementation of Title I of the

Clean Air Act Amendments of 1990

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Addendum to General Preamble

for future proposed rulemakings.

SUMMARY: This addendum to the

General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990

principally describes EPA's preliminary

views on how the Agency should

interpret various provisions of title I

with regard to requirements for PM-10

(particles with an aerodynamic diameter

less than or equal to a nominal 10

micrometers) serious nonattainment

area State implementation plans (SIP's).

This document also addresses policy

and guidance on attainment date

waivers potentially applicable to all

areas that have been designated

nonattainment for PM-10, waivers of

certain requirements applicable to PM10 serious nonattainment areas, and

requirements for international border

areas in PM-10 nonattainment areas.

Although the guidance includes various

statements that States must take certain

actions, these statements are made

pursuant to EPA's preliminary

interpretations, and thus do not bind

-States and the public as a matter of law.

This addendum is an advance notice of

how EPA generally intends to take

action on SIP submissions and to

interpret various PM-10 related title I

provisions.

FOR FURTHER INFORMATION CONTACT:

Charlene E. Spells; Air Quality

Management Division, Mail Drop 15,

Office of Air Quality Planning and

Standards, U.S. EPA, Research Triangle

Park, North Carolina 27711, (919) 541-

5255.

ADDRESSES: References cited herein are

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

and Radiation Docket and Information

Center, Room M-1500, Waterside Mall.

Mail Code 6102, 401 M Street SW.,

Washington, DC 20460. The docket may

be inspected from 8:30 a.m. to 12 noon

and from 1:30 p.m. to 3:30 p.m. on

weekdays, except for legal holidays; A

reasonable fee may be charged for

copying.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Introduction

i. Designations and Classifications

A. Designations

B. Classifications

C. Reclassifications

D. Appendix K and Waivers

Ill. International Border Areas

A. Statutory Requirement

B. Policy

IV. Serious Area SIP Requirements

V. Waivers for Certain PM-10 Nonattainment

Areas

A. Historical Perspectives

B. Waiver Provisions

C. Application of Waiver Provisions

D. Waiver Policy Description

VI. Best Available Control Measures (BACM

A. Requirement for BACM

B. EPA's Historical Interpretation of

Control Technology Terminology

C. BACM for Serious PM-10

Nonattainment Areas

D. Procedures for Determining BACM

E. Selection of BACM for Area Sources

F. Selection of Best Available Control

Technology (BACT) for Point Sources

VII. Contingency Measures

VIII. Quantitative Milestones and Reasonable

Further Progress

A. General Discussion

B. Reasonable Further Progress

C. Quantitative Milestones

IX. Other Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

In accordance with 1 CFR 5.9(c), this

document is published in the proposed

rules category.

I. Introduction

Issues are discussed in this document

regarding policy and guidance that will

be applicable to areas that have been

designated nonattainment for PM-10

and reclassified as serious areas. This

document also discusses issues

regarding policy and guidance on

attainment date waivers potentially

applicable to all areas that have been

designated nonattainment for PM-10, a"

well as policy and guidance on waivers

of certain other requirements applicablr

to PM-10 serious nonattainment areas,

and requirements for international

border areas in PM-10 nonattainment

areas.

Initially. all areas designated as

nonattainment for PM-la are classified

as moderate areas (see section 188(a) of

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

'The 1990 Amendments to the Clean Air Act

made significant changes to the air quality planning

requirements for areas that do not meet (or that

significantly contribute to ambient air quality in a nearby area that does not meet) the PM-10 national

ambient air quality standards (see Pub, L. No. 101-

549. 104 Stat. 2399). References herein are to the

Clean Air Act, as amended, 42 U.S.C. 7401. et seq.

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

in accordance with section 188(b) of the

Act, "The Administrator may reclassify

as a serious PM-10 nonattainment area

* * * any area that the Administrator

determines cannot practicably attain the

national ambient air quality standard for

PM-10 by the attainment date (as

prescribed in subsection (c)) for

moderate areas" or any area that fails to

timely attain. The EPA took final action

on January 8, 1993 to reclassify 5

moderate areas that were initially

designated as nonattainrnent for PM-10

upon enactment of the 1990

Amendments (see 58 FR 3334). The EPA

is considering reclassifying additional

areas from moderate to serious.

This guidance document is being

published as an addendum to the

General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990 (General

Preamble) published April 16, 1992 (57

FR 13498).2 Among other things, this

PM-10 nonattainment area guidance

document describes EPA's preliminary

views on how EPA should interpret

various provisions of title I with regard

to requirements for PM-10 serious area

SIP's. Although the guidance includes

various statements that States must take

certain actions, these statements are

made pursuant to EPA's preliminary

interpretations, and thus do not bind the

States and the public as a matter of law.

Of course, the use of prescriptive

language is appropriate in those

instances where the policy is simply

reiterating statutory mandates which

provide that States must take certain

actions.

Possible approaches to implementing

the provisions in section 179B

applicable to international border areas,

general SIP requirements of section

172(c), the specific requirements in

subpart 4 of part D of title I in serious

PM-10 nonattainment areas, the issues

involved and the means of resolving

those issues are discussed in the

following sections. The topics discussed

include SIP requirements such as

provisions to assure that best available

control measures (BACM) are

implemented; waivers for areas

impacted by nonanthropogenic sources;

treatment of international border areas;

requirements for quantitative

milestones, reasonable further progress

(RFP) and contingency measures.

2 A supplemental notice was published at 57 FR

18070, April 28. 1992, which provides certain

appendices to the April 16, 1992 General Preamble.

Subsequent references in this notice to the General

Preamble are inclusive of both documents.

II. Designations and Classifications

A. Designations

Section 107(d) of the Act provides

generally for the designation of areas of

each State as attainment, nonattainment

or unclassifiable for each pollutant for

which there is a national ambient air

quality standard (NAAQS), Certain areas

meeting the qualifications of section

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

nonattainment for PM-10 by operation

of law upon enactment of the 1990

Amendments (initial PM-10

nonattainment areas). A Federal

Register notice announcing all of the

areas designated nonattainment for PM10 at enactment and classified as

moderate was published on March 15,

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

correcting some of these area

designations was published August 8,

1991 (56 FR 37654). The nonattainment

areas were formally codified in 40 CFR

part 81, effective January 6, 1992 (56 FR

56694, November 6, 1991). All those

areas of the country not designated

nonattainment for PM-10 at enactment

were designated unclassifiable (see

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

B. Classifications

Once an area is designated

nonattainment, section 188 of the Act

outlines the process for classification of

the area and establishes the area's

attainment date. In accordance with

section 188(a), all PM-Ia nonattainment

areas are initially classified as moderate

* by operation of law upon their

designation as nonattainment.

C. Reclassifications

1. General Conditions

A moderate area can subsequently be

reclassified as a serious nonattainment

area under two general conditions. First,

EPA has'general discretion under

section 188(b)(1) to reclassify a

moderate area as a serious area at any

time the Administrator determines the

area cannot practicably attain the

NAAQS by the statutory attainment date

for moderate areas. 3

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

moderate area is reclassified as serious

by operation of law after the statutory

attainment date has passed if the

Administrator finds that the area has not

attained the NAAQS. The EPA must

publish a Federal Register notice

identifying the areas that have failed to

attain and were reclassified, within 6

3 The EPA's interpretation of the reclassification

provisions in section 188(b)(I) is discussed in detail

in section lIl.C.i(b) of the General Preamble (57 FR

at 13537-38).

months following the attainment date

(see section 188(b)(2)(B)). !

2. Reclassification of Initial PM-10

Nonattainment Areas

Section 188(b)(1)(A) provides an

accelerated schedule by which EPA is to

reclassify appropriate initial PM-10

nonattainment areas. The EPA proposed

on November 21, 1991 (56 FR 58656) to

reclassify 14 of the 70 initial moderate

areas as serious. The 14 areas EPA

proposed to reclassify were identified

largely based on the magnitude and

frequency of ambient PM-10

measurements above the 24-hour

NAAQS of 150 micrograms per cubic

meter (gg/m 3) during calendar years

1988-1990. The EPA took final action

on January 8, 1993 (58 FR 3334) to

reclassify 5 of the 14 areas. The final

decision to reclassify the 5 areas was

based on the criteria utilized in the

proposal, comments received in

response to the proposal and on EPA's

preliminary review of the SIP's for the

areas.

In'the future, EPA anticipates that,

generally, any decision to reclassify an

initial PM-IO nonattainment area before

the attainment date will be based on

specific facts or circumstances

demonstrating that the NAAQS cannot

practicably be attained in the area by

December 31, 1994 (the statutory

attainment date specified in section

188(c)(1) for initial PM-10

nonattainment areas).

3. Reclassification of Future PM-10

Nonattainment Areas

Section 188(b)(1)(B) provides a

timeframe within which EPA is to

reclassify appropriate areas designated

nonattainment for PM-10 subsequent to

enactment of the 1990 Amendments.

Appropriate areas are to be reclassified

as serious within 18 months after the

required date for the State's submission

of a moderate area PM-10 SIP.4 The

statute requires that these moderate area

PM-10 SIP's be submitted within 18

months after the area is designated

nonattainment (see section 189(a)(2)(B)).

Taking these provisions together, the

statute thus requires that EPA reclassify

appropriate PM-l0 moderate areas

-designated nonattainment after 1990 as

serious within 3 years of such

designation.

Because the moderate area SIP's are

due before this reclassification deadline,

EPA anticipates that any determination

that such areas should be reclassified

will be based upon facts contained in

4This directive does not restrict EPA's general

authority, but simply specifies that it is to be

exercised, as appropriate, in accordance with

certain dates.

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

the moderate area SIP demonstrating

that the NAAQS cannot practicably be

attained by the statutory-deadline. The

EPA may also consider reclassifying

moderate areas for which a SIP has not

been submitted whenever it becomes

apparent (e.g., because of an extensive

delay in submitting the SIP) that an area

cannot practicably attain the standards • by the applicable attainment date. The

EPA may also determine that an area

cannot practicably attain the standards

by the applicable date when the State

submits an incomplete or otherwise

inadequate SIP for the area (i.e., a SIP

which would not assure timely

attainment) and the State does not act

expeditiously to correct such

deficiencies.

The EPA does not believe that

generally reclassifying moderate areas as

serious rewards areas which delay

development and implementation of

PM-10 control measures. Rather, EPA

believes its policy creates an incentive

for the timely submittal and effective

implementation of moderate area SIP

requirements and facilitates the PM-10

attainment objective. For example, if an

area that fails to submit a timely

moderate area SIP is reclassified, this

does not obviate the requirement that

the area submit and implement the

moderate area SIP requirements.

Accordingly, in addition to reclassifying

such areas, EPA would also determine

that the State had failed to submit a

PM-10 SIP and the area could be subject

to sanctions under sections 110(m) and

179 for its delay. As provided under

section 179(a) of the Act, States

containing areas for which EPA has

made such determinations haveup to 18

months from EPA's determination to

submit a complete plan or plan revision

before EPA is required to impose either

the highway funding sanction or the

requirement to provide two-to-one new

source offsets described in section

179(b). If the deficiency has not been

corrected 6 months after the first

sanction applies, then the second

sanction must apply. 5 The EPA's

determination also triggers a

requirement for EPA to impose a

Federal implementation plan under

section 110(c)(1) of the Act. In

conjunction with the possible

imposition of sanctions, EPA may issue

a determination to reclassify the area to

serious.

D. Appendix K and Waivers

Appendix K to 40 CFR part 50

provides guidance on the interpretation

of ambient air quality data to determine

the air quality status of an area.

See 58 FR 51270 (October 1. 1993).

Appendix K and accompanying

guidance (both preceding the 1990

Amendments to the Act) provide in part

that measured exceedances of the PM10 NAAQS which are believed to be

influenced by uncontrollable events

caused by natural sources of particulate

matter or by events that are not expected

to recur at a given location are flagged

and excluded from decisions as to

whether or not the area should be

designated nonattainment.6 Therefore, if

it is established that exceedances are

caused by natural sources, a State may

be permitted to avoid designating the

area as nonattainment, even though the

exceedances are expected to recur.

The savings provision of section 193

of the amended Act provides, among

other things, that regulations and

guidance promulgated or issued by the

Administrator prior to enactment of the

1990 Amendments are to remain in

effect according to their terms except to

the extent that they are inconsistent

with any provision of the amended Act.'

Section 188(f) of the amended Act

provides EPA with the discretionary

authority to waive a specific date of

attainment for a PM-l0 nonattainment

area where it is determined that

nonanthropogenic sources contribute

significantly to the violation of the

standard in the area, and to waive

certain nonattainment area SIP

requirements where he Administrator

determines that anthropogenic sources

of PM-10 do not contribute significantly

to the violation of the standard in the

area. These provisions take as a

fundamental premise that areas

experiencing violations of the NAAQS

due to nonanthropogenic sources are to

be designated as nonattainment. If areas

were permitted to avoid being

designated as nonattainment because

their violations are caused in whole or

part by uncontrollable natural events.

then this statutory provision would

have to be read as having no legal effect

or significance. However, this would

violate canons of statutory construction;

which direct that statutory language not

be treated as mere surplusage.

Consequently, although appendix K

appears to be preserved in part by

section 193, the provision permitting

the treatment of "uncontrollable events

caused by natural sources" as

exceptional events, and therefore

excludable from nonattainment

decisions, is inconsistent with the

provisions of section 188(f) and should

therefore be regarded as no longer

6 See section 2.4 of appendix K of 40 CFR part

50 and "The Guideline on the Identification and

Use of Air Quality Data Affected by Exceptional

Events." EPA-450/4-86-007. July 1986.

having legal -effect. Similarly, any EPA

guidance permitting such exclusion of

these events is inconsistent with the

amended Act. For this reason,

exceedances which are attributable to

uncontrollable nonanthropogenic events

may not be discounted or deweighted in

any manner, but must be fully

considered in determining whether

violations of the NAAQS have occurred

and whether designation as

nonattainment is warranted Future

determinations relevant to exceptional

events should therefore focus on the

remaining type of exceptional event

identified under section 2.4 of 40 CFR

part 50, appendix K, namely whether

the events---anthropogenic or

nonanthropogenic-are likely to recur at

the same location.

The EPA plans to make perfunctory

modifications to section 2.4 of 40 CFR

part 50, appendix K, In addition,

guidance on the interpretation of air

quality data believed to be influenced

by special events and conditions will be

addressed in a separate publication that

will replace the 1986 Exceptional

Events Guideline.

111. International Border Areas

A. Statutory Requirement

Section 818 of the 1990 Amendments

added a new section, 179B, to subpart

1, part D of title I. Section 179B applies

to areas that could attain the relevant

NAAQS by the statutory attainment date

but for emissions emanating from

outside the United States (U.S.). For

PM-10 nonattainment areas, section

179B(a) provides that EPA must approve

the moderate area SIP if (1) the SIP

meets all the applicable requirements

under the Act other than a requirement

that such plan or revision demonstrate

attainment and maintenance of the PM10 NAAQS by the applicable attainment

date, and (2) the State demonstrates to*

EPA's satisfaction that the SIP would be

adequate to attain and maintain the PM10 NAAQS by the attainment date but

for emissions emanating from outside'

the U.S. In addition, section 179B(d)

provides that if a State demonstrates

that an area would have timely attained

the PM-10 NAAQS but for emissions

emanating from outside the U.S., the

area must not be subject to the

reclassification provisions of section

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

that any moderate PM-10

nonattainment area that EPA determines

is not in attainment after the applicable

attainment date shall be reclassified to

serious by operation of law. Therefore,

the statute provides that areas-that could

attain but for emissions emanating from

outside the U.S. must not be reclassified

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

as serious after failing to attain by the

applicable date. 7

B. Policy

Assuming that a plan or revision

meets all applicable requirements, the

State must show that an area is eligible

to have its SIP approved and not be

reclassified as serious under section

179B by evaluating the impact of

emissions emanating from outside the

U.S. and demonstrating that the SIP

would bring about attainment but for

those emissions. Several types of

information may be used to evaluate the

impact of emissions emanating from

outside the U.S. The EPA will consider

the information presented by the State

for individual nonattainment areas on a

case-by-case basis in determining

whether an area may qualify for

treatment under section 179B. Five

examples of such information are listed

below in increasing order of

sophistication (the State may use one or

more of these types of information or

other techniques, depending on their

feasibility and applicability, to evaluate

the impact of emissions emanating from

outside the U.S. on the nonattainment

area; the first three examples do not

require the State to obtain information

from a foreign country):

1. Place several ambient PM-1a

monitors and a meteorological station;

measuring wind speed and direction, in

the U.S. nonattainment area near the

international border. 8 Evaluate and

quantify any changes in monitored PM7As noted, section 179B(d) states that areas

demonstrating attainment of the standards, but for

emissions emanating from outside the U.S., shall

not be subject to section 188(b)(2] (reclassification

for failure to attain). By analogy to this provision

and applying canons of statutory construction, EPA

will not reclassify before the applicable attainment

date areas which can demonstrate attainment of the

standards, but for emissions emanating from

outside the U.S. (see section 188(b)(1)). First,

section 179B evinces a general congressional intent

not to penalize areas where emissions emanating

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

PM-10 nonattainment problems. Further, if EPA were to reclassify such areas before the applicable

attainment date, EPA, in effect, would be reading

section 179B(d) out of the statute. Specifically, if

EPA proceeded to reclassify, before the applicable

attainment date, those areas qualifying for treatment

under section 179B, an area would never be subject

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

EPA from reclassifying such areas after the

applicable attainment date. Canons of statutory

construction counsel against interpreting the law

such that language is rendered mere surplusage.

Finally, note that section 179B(d) contains a clearly

erroneous reference to carbon monoxide instead of

PM-b, and that this section contains other clear

errors (see, e.g., section 179B(c) reference to section

186(b)(9), which does not exist). 8See 40 CFR part 58 for guidance on locating

PM-10 monitors and "On-site Meteorological

Program Guidance for Regulatory Modeling

Applications," EPA-450/4-87-013, June 1987 for

guidance on locating meteorological stations.

10 concentrations with a change in the

predominant wind direction.

2. Comprehensively inventory PM-10

emissions within the U.S. in the vicinity

of the nonattainment area and

demonstrate that the impact of those

sources on the nonattainment area after

application of reasonably available

controls does not cause the NAAQS to

be exceeded. This analysis must include

an influx of background PM-10 in the

area. Background PM-10 levels could be

based, for example, on concentrations

measured in a similar nearby area not

influenced by emissions from outside

the U.S.

3. Analyze 'ambient sample filters for

specific types of particles emanating

from across the border (although not

required, characteristics of emissions

from foreign sources may be helpful). 4. Inventory the sources on both sides

of the border and compare the

magnitude of PM-10 emissions

originating within the U.S. to those

emanating from outside the U.S.

5. Perform air dispersion and/or

receptor modeling to quantify the

relative impacts on the nonattainment

area of sources located within the U.S.

and of foreign sources of PM-1a

emissions (this approach combines

information collected from the

international emission iniventory,

meteorological stations, ambient

monitoring network, and analysis of

filters).

In addition to demonstrating that the*

SIP for the area would be adequate to

timely attain and maintain the NAAQS

but for emissions emanating outside the

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

applicable moderate area SIP

requirements in order to qualify for the

special SIP approval under section

179B. Among other things, the SIP must

provide for the implementation of

reasonably available cohtrol measures

(RACM), including reasonably available

control technology (RACT) (see 57 FR

13540). In international border areas,

RACM/RACT must be implemented to

the extent necessary to demonstrate

attainment by the applicable attainment

date if emissions emanating from

outside the U.S. were not included in

the analysis. The EPA believes that this

interpretation of the degree of RACM

the State is required to implement in

moderate PM-10 areas affected by

emissions emanating from outside the

U.S. is consistent with the purpose of

section 179B. By directing EPA, under

section 179B, to approve the plan or

plan revision of a moderate PM-la area

'which shows it would attain the

NAAQS but for foreign emissions and

by excluding such an area from

reclassification to serious, Congress

clearly wanted to avoid penalizing

States containing such areas by not

making them responsible for control of

emissions emanating from a foreign

country over which they have no

jurisdiction. Moreover, by excluding the

area from reclassification, Congress also

elected to avoid subjecting such areas to

the more stringent control measures

applicable in serious PM-lO areas. In

addition, as set forth in section

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

must be met before EPA may approve a

moderate area plan showing attainment

but for foreign emissions, by its plain

terms, requires the State to establish

only that the plan submitted would be "adequate" to timely attain and

maintain the NAAQS, but for emissions

from outside the U.S. Nothing in section

179B relieves the State from meeting all

its applicable moderate area PM-10 SIP

requirements, including the requirement

to implement RACM. Nonetheless, if, in

doing so, States containing such an area

were also required, because of

contributions to PM-10 violations

caused by foreign emissions, to shoulder

more of a regulatory and economic

burden than States not similarly affected

(i.e., by implementing measures which

go well beyond those which the SIP

demonstrates would otherwise be

adequate to timely attain and maintain

the PM-10 NAAQS) such a requirement

would unfairly penalize States

containing international border areas

and effectively undermine the purpose

of section 179B. Indeed, to the extent an

affected State can satisfactorily

demonstrate that implementation of

such measures clearly would not

advance the attainment date, EPA could

conclude they are unreasonable and

hence do not constitute RACM.

Notwithstanding the above, in light of

the overall health and clean air

objectives of the Act, EPA does

encourage affected States to reduce

emissions beyond the minimum

necessary to satisfy the "but for" test in

order to reduce the PM-10

concentrations to which their

populations are exposed.

The SIP for an international border

area must also include contingency

measures as required under section

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

179B(a)(1), such SIP's must meet "all

the requirements applicable to it under

the Act" except that they may

demonstrate timely attainment by

discounting emissions emanating from

outside the U.S. Contingency measures

are additional measures included in the

SIP that can be undertaken to reduce

emissions if the area fails to make RFP

or to attain the primary NAAQS by the

___ I I I I|11 . I ] r II

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

applicable attainment date. In

international border areas, EPA will not

require the contingency measures for

PM-10 to be implemented after the area

fails to attain if EPA determines that the

area would have attained the NAAQS,

but for emissions emanating from

outside the U.S. However, the EPA will

require contingency measures to be

implemented if it determines that the

area failed to make RFP in achieving the

required reductions in PM-10 emissions

from sources within the U.S., or if the

area does not, in fact, obtain the

emission reductions that were necessary

to demonstrate timely attainment of the

NAAQS, but for emissions emanating

from outside the U.S.

IV. Serious Area SIP Requirements

The Act requires States to submit

several SIP revisions, as necessary,

providing for implementation of

increasingly stringent control measures

and demonstrating when those control

measures will bring about attainment of

the PM-10 NAAQS. The first SIP

revision was due Novemberi15, 1991 for

the initial moderate PM-10

nonattainment areas. For areas

redesignated nonattainment for PM-10

in the future under-section 107(d)(3),

the first SIP revision will be due within

18 months after the area is redesignated

(see section 189(a)(2)). This SIP revision

must, among other things, provide for

implementation of RACM on sources in

the area (see sections 189(a)(1)(C) and

172(cj(1)). All available technologically and economically feasible control

measures would be considered RACM.

and therefore reasonable for adoption,

for areas that cannot attain the NAAQS

by the applicable attainment date

(December 31, 1994 for initial moderate

PM-10 nonattainment areas) (see 57 FR

13544).9

If EPA determines that a moderate

area cannot practicably attain the

NAAQS by the applicable attainment

date (or determines the area has failed

to attain) and reclassifies the area as a

serious nonattainment area under

section 188(b), a second SIP revision for

9 Note that if it can be shown that measures are

unreasonable because emissions from the sources affected are insignificant or de minimis, such

measures may be excluded from consideration as they would not represent RACM for that area (see

57 FR 13540). Moreover, in international border

areas, measures which go beyond those which the

SIP demonstrates would be adequate to attain and

maintain the standard, but for emissions emanating

from outside the U.S., would not be considered

"reasonably" available-and therefore would not be

required by RACM--since they would not advance

the attainment date (although States may elect'to

implement such measures in order to reduce the

public's exposure to PM-O) (see discussion under

International Border Areas of this guidance

document).

the area is required under section

189(b). This revision must, among other

things, include provisions to assure that

BACM (including BACT) will be

implemented in the area (see section

189(b)(1)(B)). In addition, a

demonstration (including air quality

modeling) must be submitted showing

that the plan will attain the NAAQS

either by the applicable attainment date

or, if an extension is granted under

section 188(e), by the most expeditious

alternative date practicable (see section

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

The SIP revisions to require the

implementation of BACM must be

submitted to EPA within 18 months

after an area is reclassified as serious

(see section 189(b)(2)). The BACM are to

be implemented no later than 4 years

after an area is reclassified (see section

189(b)(1)(B)). The EPA's policies

regarding the requirement to implement

BACM in serious areas are discussed in

section VI of this document.

The serious area attainment

demonstration required under section

189(b)(1)(A) must be submitted to EPA

within 4 years after an area is

reclassified based on a determination by

EPA that the area cannot practicably

attain the NAAQS by the statutory

deadline for moderate areas. It is due

within 18 months after an area is

reclassified for actually having failed to

attain the NAAQS by the moderate area

attainment date (see section 189(b)(2)).

The new attainment date for initial

PM-10 nonattainment areas that are

reclassified as serious is to be as

expeditious as practicable but not later

than December 31, 2001. For areas that

are designated nonattainment for PM-10

in the future and subsequently become

serious, the attainment date is to be as

expeditious as practicable but no later

than the end of the tenth calendar year

beginning after the area's designation as

nonattainment (see section 188(c)(2)).

If the State demonstrates to the

satisfaction of EPA that attainment by

the statutory deadline for serious areas

(as set forth in section 188(c) of the Act)

is impracticable, the State must

demonstrate that the SIP provides for

attainment by the most expeditious

alternative date practicable. The State

may apply to EPA for a single extension

of the serious area attainment date,

under section 188(e) of the Act, not to

exceed 5 years beyond the serious area

attainment date. A State requesting an

extension under section 188(e) for an

area must. among other things,

demonstrate that the plan for the area

includes the most stringent measures

that are included in the implementation

plan of any State or are achieved in

practice in any State, and can feasibly

be implemented in the area. The EPA

intends to issue guidance in the future.

as appropriate, on 'applying for an

extension of the serious area attainment

date.

If a serious area fails to attain by the

applicable attainment date (which may

be an extended attainment date),

another SIP revision is required within

12 months that provides for attainment

and until then for annual reductions in

PM-10 or PM-10 precursor emissions

within the area of not less than 5

percent of the amount of such emissions

as reported in the most recent emission

inventory for the area (see section

189(d)).

In addition to the specific PM-10 SIP

requirements contained in subpart 4 of

part D, title I, States containing serious

areas must meet all of the applicable

general SIP requirements set forth in

section 110(a)(2) and the nonattainment

area SIP requirements set forth in

subpart I of part D, title I, to the extent

that these provisions are not otherwise

subsumed by, or integrally related to.

the more specific PM-10

requirements.' 0 The general SIP

requirements applicable to all

nonattainment areas are discussed in

the General Preamble at 57 FR 13556-

13557.

The requirements specifically

applicable to serious areas under

subpart 4 are found primarily in section

189. Those requirements include:

a. Current actual and allowable

emissions inventories that meet EPA

guidelines I I (see section VI.D. below).

b. Submission of a SIP, under section

189(b)(1)(A). that includes a

demonstration that the plan provides for

attainment by the applicable attainment

date (December 31, 2001 for the areas

initially designated nonattainment for

PM-10 by operation of law under

section 107(d)(4) and no later than the

end of the tenth year beginning after the

area's redesignation for areas

subsequently redesignated

nonattainment)} or a demonstration that

attainment by the above date is not

practicable and that the plan provides

for attainment by the most expeditious

alternative date practicable.12

"'See 57 FR 13538 (April 16, 1992).

I"PM-1O Emission Inventory Requirements."

EPA-450/2-93-XX. U.S. Environmental Protection

Agency. Research Triangle Park. NC. 1993.

1

2

Subsequent to adopting requirements for BACM

shortly after the nonattainment area is reclassified as serious, it may be necessary for the State to adopt

additional control measures in order to demonstrate

that the SIP provides for attainment of the PM-10

NAAQS in accordance with section 189tb)(t)(A)(il.

If the State demonstrates, in accordance with

section 189(b)(i)(A)(ii), that attainment by the

applicable serious area attainment date is

impracticable and seeks an extension of the

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c. Provisions, under section . 189(b)(1)(B), to assure that BACM

(including BACT) will be implemented

no later than 4 years after the area is

reclassified as serious.

d. A requirement, under section

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

and "major stationary source," used in

implementing a new source permitting

program under section 173 and control

of PM-10 precursors under section

189(e), include any stationary source or

group of stationary sources located

within a contiguous area and under

common control that emitp, or has the

potential to emit, at least 70 tons per

year of PM-10. e. Contingency measures t3 (see

section VII. below).

f. Quantitative milestones, (applicable

to both moderate and serious area SIP's

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

achieved every 3 years until the area is

redesignated attainment, and which

demonstrate RFP toward attainment by

the applicable date. The provision

includes a requirement for periodic

reports demonstrating whether the

milestones have been met (see section

VIII. below).

g, Plan revisions which provide for

attainment of the PM-10 NAAQS and

annual reductions of not less than 5

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

under section 189(d), if the serious area

fails to attain the standards.

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

PM-10 precursors from major stationary

sources of precursors in the airshed

(applicable to both moderate and

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

The demonstration required under

section 189(b)(1)(A) should follow the

existing modeling guidelines addressing

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

Guideline" (June 1987); "Guideline on

Air Quality Models" (Revised);

memorandum from Joseph Tikvart and

Robert Bauman dated July 5, 1990) and

any applicable regulatory requirements.

A supplementary attainment

demonstration policy applicable to

initial moderate PM-10 nonattainment

areas facing special circumstances was

issued in a memorandum from EPA's

attainment date pursuant to section 188(e), the Stale

must demonstrate to the best of its ability that the

plan for the area includes the most stringent

measures that are included in the implementation

plan of any State or are achieved in practice in any

State, and can be feasibly implemented in the area.

'- Contingency measures are other available

control measures, in addition to those in the control

strategy to attain the NAAQS, that can be

implemented if EPA determines the area fails to

make reasonable further progress or to attain the

NAAQS by tle applicable attainment (late Isee

section 172(c)(9)).

Office of Air Quality Planning and

* Standards to the Directors of EPA

Regional Air Divisions on March 4, 1991.14 That supplementary policy is

not applicable to serious area SIP

demonstrations.

V. Waivers for Certain PM-10

Nonattainment Areas

A. Historical Perspectives

The EPA in the past focused much of

its air pollution control efforts on

industrial point source emissions and

other traditional sources of air

pollution.' 5 For instance, EPA's 1977

guidance on SIP development gave

priority to control of urban fugitive dust

after control of traditional sources, but

in preference to rural fugitive dust, on

the grounds that (1) urban soil was

believed to be contaminated and,

therefore, potentially more harmful than

the native soils in rural areas; (2) the

potential for significant population

exposures and attendant health effects

was much greater in urban areas; and (3)

scarce resources at the Federal, State,

and local agency levels could be most

effectively brought to bear on the more

pronounced problems found in urban

areas.t 6 Accordingly, EPA's policy was

to require greater emphasis on control of

emissions in urban areas, including

control of fugitive dust from all major

sources. In contrast, control

requirements for rural areas were far

less ambitious, focussing on the'control

of major industrial sources, with little

attention given to natural or

nonindustrial en-issions. This policy of

giving a lower priority to controlling

natural or nonindustrial emissions in

rural areas became known as the "Rural

Fugitive Dust Policy." '7

'

4 "PM-10 SIP Attainment Demonstration Policy

for Initial Moderate Nonattainment Areas,"

memorandum from John Calcagni and William

Laxton to Director. Air Division, EPA Regions I-X,

March 4. 1991.

rhe EPA distinguished between "traditional"

and "'nontraditional" sources. The term .'nontraditional source" first appeared in official

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

Urban Particulate Problem," EPA-450/3-76-024,

July 1076, and was coined as a catch-all to refer to

those sources not traditionally considered in air

pollution control strategies, including construction

and demolition, tailpipe emissions, tire wear, and

* various sources of fugitive dust. Since then, the use

of the term has expanded to include such sources

as prescribed agricultural and silvicultural burning,

open burning, and residential wood combustion.

'"Guidance on SIP Development and New

Source Review in Areas Impacted by Fugitive

Dust," Edward F. Tuerk, Acting Assistant

Administrator for Air and Waste Management, to

Regional Administrators.

-7See, e.g., "Model Letter Regarding State

Designation of Attainment Status," David H.

Hawkins, Assistant Administrator for Air and Waste

Management, to Regional Administrators, October

7, 1977; see also, "Fugitive Dust Policy: SIP's and

New Source Review" (August 1984).

The EPA's policy focus shifted away

from the type and location of the

emission sources (i.e., traditional or

nontraditional sources, urban or rural

locations) to the size of the particles

emitted when the indicator for the

NAAQS was changed in 1987 from total

suspended particulate matter to PM-10.

While revisions to the rural fugitive dust

policy were being considered, the policy

was continued during the initial phases

of implementing the PM-10 NAAQS on

an interim basis.' 8 However, EPA

believes that the 1990 Amendments

provide a statutory alternative that

wholly supplants the rural fugitive dust

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

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

(August 8, 1991)).

B. Waiver Provisions

The Act,, as amended in November

1990, was designed to assure that

attainment and maintenance of the PM10 standards, which were promulgated

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

as expeditious as practicable. Thus, the

Act requires States to submit several

revisions of the SIP for PM-10

nonattainment areas, if necessary, to

ensure attainment of the PM-10 NAAQS

as expeditiously as practicable. Among

other planning requirements, the SIP

revisions must first provide for the

implementation of RACM on PM-10

sources. If RACM is not adequate to

attain the NAAQS, subsequent revisions

must provide for implementation of

additional, more stringent control

measures until the NAAQS are attained.

Congress recognized that there may be

areas where the NAAQS may never be

attained because of PM-10 emissions

from "nonanthropogenic sources," '9

and that the imposition in such areas of

certain State planning requirements, as

described in the previous section, may

not. be justified. Therefore, under

section 188(f) of the Act, Congress

provided a means for EPA to waive a

specific date for attainment and certain

control and planning requirements

when certain conditions are met in the

nonattainment area. Section 188(f) provides two types of

waivers. First, the Administrator may,

on a case-by-case basis, waive Any

requirement under subpart 4 applicable

to any serious nonattainment area where

EPA determines that anthropogenic

sources of PM-10 do not contribute

significantly to the violation of the

'

5 See 52 FR 24716 (July 1, 1987).

19 The legislative history of the 1990 Amendments

indicates that Congress intended that the term

"tonanthropogenic" sources of PM-1 refer to

activities where the human role in the cause of such

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

490, 101st Cong., 2d Sess. 265 (1990)).

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

standard in the area. Second, the

Administrator may waive a specific date

for attainment of the standard where

EPA determines that nonanthropogenic

sources of PM-10 contribute

significantly to the violation of the

standard in the area.

Section 188(f) contains two different

legal tests. The first test applies to a

waiver of the serious area requirements

and requires that EPA determine that

anthropogenic sources do not contribute

significantly before EPA grants such a

waiver. The second test applies to a

waiver of an area's attainment date and

requires that EPA determine that

nonanthropogenic sources contribute

significantly before waiving the

attainment date. The first test is more

stringent than the second.

C. Application of the Waiver Provisions

Several questions must be answered

before the waiver provisions can be

applied. Each of these questions is

discussed in the subsections that follow

1. What types of sources should be

considered anthropogenic and

nonanthropogenic?

The legislative history of the 1990

Amendments indicates that Congress

intended that the term "nonanthropogenic" sources of PM-10

refer to activities where the human role

in -the cause of such emissions is highly

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

265). Naturally occurring events such as

wildfires, volcanic eruptions, unusually

high pollen counts, and high winds

which generate dust from undisturbed

land are examples of nonanthropogenic

sources that EPA believes meet the

intent of Congress.

Anthropogenic sources of PM-10

emissions are those resulting from

human activities. Some of the

traditional and nontraditional

anthropogenic sources generally

considered in PM-10 SIP's are

commercial, institutional, and

residential fuel combustion; fossil fuelfired electric power plants; industrial

-processes; vehicular traffic on paved

and unpaved roads; construction

activities; agricultural activities; and

other sources of fugitive dust which are

directly traceable to human activities

and which are reasonably foreseeable

incidents of such. activities. 20

2. What criteria should be used in

determining when nonanthropogenic

sources contribute significantly and

when anthropogenic sources do not

contribute significantly to violation of

the NAAQS in the area?

2"PM-lO SIP Development Guideline," EPA450/2-86-001. U.S. Environmental Protection

Agency. Research Triangle Park, NC. 1987. p. 5-5.

Table 5.1.

The Act does not define the term "contribute significantly" as it is used

in section 188(f), nor does the legislative

history provide any useful guidance.2 1

Where a statute is silent or ambiguous

with respect to the meaning of a

statutory term, a reasonable agency

interpretation of theterm must be given

deference by a reviewing court (see

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

Resources Defense Council, Inc., 467

U.S. 837. 842-845 (1984)). The EPA

thus believes it has the authority to

select reasonable criteria by which to

determine when nonanthropogenic/

anthropogenic sources in an area do/do

not "contribute significantly" to levels

of pollution which exceed the NAAQS.

as well as to consider for this purpose.

criteria utilized in other statutory

contexts. In light of the different legal

tests set forth in section 188(f), the EPA

believes that different indicators of

significance are needed to serve the

statutory purpose of encouraging

protection of public health and welfare

while avoiding unreasonable control

actions. The criteria which EPA believes

provide a reasonable approach to

making such a determination, as well as

a discussion of the basis for selecting

these criteria, are set forth below.

Generally, where a nonattainment

area's anthropogenic sources contribute

very little to violations, it is likely that

controlling those emissions to the extent

feasible for the area will be insufficient

to attain the NAAQS. In such cases, it

would be unreasonable to require the

area to implement more stringent and

more expensive controls on

anthropogenic sources since they would

contribute little to attainment or to

reducing the public's exposure to

unhealthy air quality. In similar fashion,

where nonanthropogenic emission

contributions are great, even after the

area has taken reasonable steps to

reduce them, at some point it may not

be feasible for the area to reduce

nonanthropogenic (or anthropogenic)

emissions sufficiently to effect any real

change in ambient concentrations.

Consequently, it would be unreasonable

to require the area to continue to pursue

control measures that are beyond the

2

t It should be noted that the term "contribute

significantly" (or variations of that term) has been

interpreted differently throughout the Act, e.g., in

the ozone/carbon monoxide programs (see section

107(d)(4}(A)(iv} and (v)), the new source review

(NSR) program, and in specific provisions of the

statute, such as sections 110(a(2)(D){i)l) and

126(a)(i)B). An agency is permitted, but not

required. to give a similar meaning to similar terms

which appear in different parts of a statute. Thus.

although EPA is not bound to adopt the

interpretation given the term "contribute

significantly" in other parts of the statute, it is

likewise not precluded from according this use of

similar language some interpretive weight.

area's practicable abilities. These

principles are-discussed below in

connection with each of the two waiver

tests.

In selecting an appropriate "significance" contribution from

• anthropogenic sources (for the purposes

of deciding whether serious area

requirements should be waived), EPA

has elected to rely on the test of

significance that is applied under new

source permitting programs. Under the

new source review (NSR) permit

program, the EPA requires State

permitting programs to consider new

major sources or major modifications as

causing or contributing to a violation of

the PM-10 NAAQS when the source

would add, at a minimum, over 5 pg/m 3

to the 24-hour average or over I g/in 3

to the annual average PM-IO

concentrations in an area that does not

or would not meet the PM-I NAAQS

(see 40 CFR 51.165(b)). Given that the

purpose of new source permitting

programs is also to protect air quality in

both attainment and nonattainment

areas, EPA: generally believes that the

test of significant contribution to

violations under that program should

also be applicable when determining

significant contributions of

anthropogenic sources under section

188(f) of the Act. It should also be noted

that, in determining "significance" for

purposes of section 188(f)the plain

terms of that provision and its

underlying purpose dictate that EPA

consider the impact of the

anthropogenic sources as a whole.

Consequently, where emissions from all

anthropogenic sources as a whole

contribute less than or equal to 5 pg/rn

to 24-hour average design

concentrations and less than or equal to

1 pg/m 3 to annual mean design

concentrations in a nonattainment area.

after all RACM have been

implemented,22 EPA will generally

regard such contributions as

insignificant for purposes of waiving

requirements applicable to serious PM10 nonattainment areas pursuant to

section 188(f).

Generally, if an area meeting this test

has not yet been reclassified as serious

and the area would qualify under this

test for a waiver of certain serious area

requirements as deemed appropriate by

EPA (see discussion below), then EPA

will not require reclassification, since

that action would have no practical

2 Implementation of RACM (including RACT) is

required in all moderate PM-10 nonattainment areas and that requirement is not waived under the

provisions of section 188(f). Therefore, the issue is

whether anthropogenic sources still contribute

significantly to violations of the NAAQS in an area,

after implementing RACM.

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

effect. Generally, if the contribution of

anthropogenic emissions to the 24-hour

design concentration exceeds 5 pg/m 3,

or if the contribution to the annual

design concentration exceeds 1 gg/m 3,

even after the application of all RACM,

then the area should be reclassified as

serious, and serious area requirements,

including BACM, should be

implemented. The EPA will consider

exercising its authority to waive serious

area requirements on a case-by-case

basis where the anthropogenic source

contribution exceeds these levels, and it

can be persuasively demonstrated'that

because of unique circumstances,

anthropogenic sources do not contribute

significantly to violations of the PM-IO

NAAQS in the area.

The EPA will consider

nonanthropogenic sources to contribute

significantly (and hence grant an

attainment date waiver) only if, after the

application of RACM to

nonanthropogenic sources, their

contribution to the 24-hour average

design concentration exceeds 1511 g/ m 3, or their contribution to the annual

mean design concentration exceeds 50

gg/m 3. Because the basic purpose of

title I is to protect public health and

welfare through attainment and

maintenance of the NAAQS, EPA

believes that before it may generally

presume a serious area's

nonanthropogenic emissions

contribution to be significant, that

contribution should by itself prevent the

area from attaining the NAAQS after

reasonable steps have been taken to

reduce or minimize their impacts. Areas

which do not meet the above criteria,

and other situations for which the

general presumption is rebutted, will be

reviewed on a case-by case basis (see

question 4 below). Information derived from chemical

and optical analyses of ambient filter

catches, area emission inventories, and

dispersion modeling to determine

maximum source impacts can be used to

evaluate the impact of anthropogenic

and nonanthropogenic sources. Analysis

of filters collected with a network of

monitors over a long period (1 or more

years) should reveal the portions of

normal area PM-10 concentrations

attributable to background,

nonanthropogenic, and anthropogenic

sources, respectively.

3. Under what conditions will the

attainment date for a moderate area be

waived?

The effect of waiving the attainment

date for a moderate area is to relieve it

of the serious area requirements.

Therefore, special considerations apply

to the determination of whether

nonanthropogenic sources contribute

significantly to violation of the PM-10

NAAQS in a moderate area and whether

such area therefore qualifies for an

attainment date waiver.

The significant disparity between the

legal tests set out in section 188(f, as

discussed above, may lead to an absurd

result. In particular, if 'a moderate area

met the less stringent attainment date

waiver test and the attainment date for

the area was actually waived, the area

would never be reclassified. 23 The result

would be that a moderate area would be

effectively relieved from the serious area

requirements without having met the

more stringent test that Congress

expressly required be met as a

prerequisite to a waiver of such

requirements. In such an event, the

more stringent test for determining

whether to waive serious area'

requirements would be rendered

meaningless. Moderate areas would

qualify for the attainment date waiver,

be effectively relieved of all serious area

requirements and never have to meet

the required test for such waiver.

To avoid this absurd result and only

grant a waiver of the serious area

requirements consistent with the legal

standard set out in the Act, EPA has

construed section 188(0 in the following

manner. A moderate area may only

qualify for an attainment date waiver if

it also qualifies for a waiver of the

serious area requirements. Therefore,

EPA must determine that anthropogenic

sources in the area do not contribute

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

requirements should be waived before

EPA can grant an attainment date

waiver for a moderate area. If such a

determination is made, then the

attainment date may be waived and the

area would not be reclassified. These

special considerations would not be

relevant where EPA is determining

whether to waive the attainment date for

a serious area since waiving the date in

such circumstances would not as a

matter of course have the effect of

relieving the area of the serious area

requirements. An area already

reclassified as serious could qualify for

an attainment date waiver solely by

23 If EPA waives a specific attainment date for a

moderate area consistent with its authority under

section 188(f), the attainment date for the area will

be vacated. Therefore, the moderate area would not

be subject to reclassification under section 188(b)

because there simply would be no attainment date

that the area cannot practicably meet or that the area fails to meet. However, since section 188(f)

authorizes waiving only the attainment date, the

moderate area would still be subject to all the

remaining moderate area SIP requirements.

Therefore, the moderate area SIP submitted to meet

the applicable requirements of subparts 1 and 4

must, among other requirements, continue to

provide for implementation of RACM.

showing that nonanthropogenic

emissions contribute significantly to the

nonattainment problem.

As part of its policy, EPA will require

that areas receiving waivers be revisited

periodically to reevaluate source

contributions, to ensure that source

emissions growth is reasonably

controlled, and to determine whether

additional controls to reduce the

public's exposure to high concentrations

of PM-10 are available (see also the

discussion under question 5). 4. What happens if an area cannot

meet the general criteria described

above?

If evidence in a given nonattainment

area suggests that nonanthropogenic

emissions may contribute significantly

to violations but are not greater than 150

gg/m 3 and/or anthropogenic source

contributions are relatively small but

not less than 5 pg/m3, then EPA will

review the situation on a case-by-case

basis taking into account relevant

information such as the relative

contribution of nonanthropogenic

emissions/anthropogenic emissions and

the effects of applying additional

controls to both types of sources.

For moderate areas, if preliminary

data (emission inventory, filter analysis,

etc.) persuasively indicate that

anthropogenic emissions may be

insignificant and that nonanthropogenic

emissions may be significant in an area,

but such data are not decisive, then EPA

will consider granting a temporary or

conditional waiver of the moderate area

attainment date for no more than 3 years

to allow further evaluation of the

situation.'Prior to granting a temporary

waiver, EPA and the State must agree on

a protocol for evaluating the impacts of

anthropogenic and nonanthropogenic

emissions. The protocol must include a

schedule with interim milestones by

which the State will complete'its

analyses. The schedule should consider

the need for the area to adopt and

implement BACM so as to meet the

applicable serious area attainment date

(as expeditiously as practicable and, for

those areas designated nonattainment

under section 107(d)(4)(B), no later than

December 31, 2001) in the event the

evaluation demonstrates that

nonanthropogenic emissions do not

contribute significantly to violations in

the area. If the evaluation conclusively

demonstrates that nonanthropogenic

emissions are significant, then a waiver

of the serious area attainment date may

be ranted.

If it is shown for any moderate

nonattainment area that, although

nonanthropogenic emissions may be

significant, the application of controls

on anthropogenic sources would

42005
4,U11".1 Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules

appreciably reduce PM-10

concentrations in the area, then the area

would not be granted a waiver of the

moderate area attainment date,.but

would be reclassified as serious. The

area would then be required to"

implement BACM on non-de min imis

anthropogenic source categories (see

discussion in section VI). However,

subsequent to such reclassification, the

area may later apply for a waiver of the

serious area attainment date if it can

d6monstrate that even after

implementing BACM (and after

considering the extended attainment

and post-attainment provisions of

sections 188 and 189 of the Act).

nonanthropogenic emissions will

prevent the area from attaining the

NAAQS.

5. For what period may a specific

attainment date be waived?

When nonanthropogenic sources have

been determined to contribute -

significantly to violatiors in an area that

has been reclassified to serious, in

accordance with the above criteria,

those sources may permanently prevent

the area from attaining the standards.

Therefore, the attainment date for such

areas could be waived indefinitely. 24

"However, the phrase waive a specific

date" does not require that the

attainment date be waived indefinitely

(see.footnote 23 on the effect of waiving

the moderate area attainment date), nor

does it lessen the State's obligation to

strive to expeditiously attain the

14 In cases where it is feasible to implement

measures that will reduce future emissions from

nonanthropogenic sources (i.e.. planting indigenous

.,,,getation or establishing wind breaks), EPA has

thl- authority under section 188(e) to extend the

attainment date for a serious area for up to 5 years

bjyond 2001 if it is possible that the NAAQS could

be attained in the future. Such measures should be

considered by States before seeking waivers of the

attainment date.

NAAQS at some time in the future

through available means. While EPA

does not expect States to exhaust their

resources to meet standards that may be

unattainable, it does expect them to

continue efforts to minimize exposures

to unhealthy air.

Even though a specific attainment

date and serious area requirements may

be waived indefinitely for an area

where, respectively, nonanthropogenic

sources contribute significantly to

violations and anthropogenic sources do

not, the State should review the status

of anthropogenic and nonanthropogenic

source contributions in the area every 3

years. Such a review would entail

determining whether nonanthropogenic

sources still contribute significantly and

anthropogenic sources do not contribute

significantly to violation of the PM-10

NAAQS in the area. Since emissions

from anthropogenic sources increase

with population growth and the location

of new sources to the area, the

contribution of anthropogenic sources to

violations can become significant over

time. Therefore, the need for reinstating

a specific attainment date and/or

previously waived serious area

requirements should be reconsidered

periodically.

The EPA has the authority under

section 172(c)(3) to require periodic

updates of a nonattainment area's

emissions inventory to assure that the

requirements of part D are met. The EPA

plans to use this authority to

periodically review the waiver status of

areas, as described above. A specific

attainment date and applicable

requirements should be reinstated if it is

determined that nonanthropogenic

sources no longer contribute

significantly or anthropogenic sources

begin contributing significantly to

violations in the area.

6. What requirements applicable to

serious nonattainment areas under

subpart 4 of part D should be Waived?

The individual subpart 4

requirements (see section IV. above) wilI

be waived only after considering all

relevant circumstances on a case-bycase basis for serious areas where

anthropogenic sources do not contribute

significantly and where RACM have

been implemented. Currently, the

section 189(b)(3) requirement to modify

the definitions of "major- source" and "major stationary source" is the only

serious area requirement that will not be

waived.

D. Waiver Policy Description

Consistent with the discussion above,

the EPA intends to implement its

authority to grant waivers under section

188(f) in a manner described by the

diagram presented in Figure 1. It is

important to note that this diagram is

provided for illustrative purposes only

and should not be interpreted contrary

to the policy as it is described in this

notice. The figure presents six decision

questions. A SIP submitted for a

moderate nonattainment area seeking a

waiver is expected to address the first

three questions:

1. Can the area attain the NAAQS by

the applicable statutory attainment date

(December 31, 1994 for the initial

nonattainment areas) after

implementing RACM (including RACT)

for contributing anthropogenic and

nonanthropogenic, sources?

If the moderate area SIP demonstrates

that the area can attain with RACM

(including RACT) by the attainment

date, then the answer to this question is

"yes" and the waiver provisions are not

applicable.

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

If an area cannot attain-by the

statutory deadlinethen questions 2 and

3 on the waiver policy diagram must be

addressed, and several cases may exist.

2. Do anthropogenic sources of PM-10

as a whole contribute significantly to

violations in the area?

3. Do nonanthropogenic sources of

PM-10 as a whole contribute

significantly to violations in the area?

Case #1

If anthropogenic sources no longer

contribute significantly to violations in

the area after the implementation of

RACM, then by default,

nonanthropogenic sources must

contribute significantly.25 In this case,

the moderate area attainment date may

be waived. The practical effect of

waiving the attainment date for a

moderate area is to relieve it from

reclassification as serious and, therefore,

to relieve it from certain serious area

requirements. Therefore, a moderate

area may only qualify for an attainment

date waiver if it also qualifies for a

waiver of the serious area requirements

(see section V.C., question 3). The State

should reevaluate the impact of

anthropogenic sources on the area

periodically to determine whether or

not they contribute significantly to

violations.

Case #2

If anthropogenic sources still

contribute significantly to violations in

the area after the implementation of

RACM (i.e., contribute over 5 gg/m3 to

PM-10 concentrations), then the area

would be reclassified as serious.

Consequently, the serious area

requirements discussed in section IV,

above, would have to be implemented

in the area. These requirements include,

among other things, the application of

BACM (including BACT) on source

categories that are still contributing

significantly to violations (see the

discussion of BACM in section VI and

footnote 33).

Subsequently, the area may qualify for

a waiver of the serious area attainment

date if it is demonstrated that

nonanthropogenic source contributions

(i.e., contributions greater than 150 pig/

m3) would prevent the area from

attaining the NAAQS.

2

5 It is likely that Congress intended all areas- even those eligible for waivers--to implement

whatever measures were reasonably available.

Therefore. EPA believes the best reading of the

statute requires that the emission reductions

attributable to RACM (including RACT) should be

considered beforie evaluating the significance of

anthropogenic contributions.

Case #3

If anthropogenic sources contribute

significantly to violations, but,

nonanthropogenic sources contribute

less than 150 jig/m3, then waivers will

be granted on a case-by-case basis as

discussed above in subsection C.,

question 4. The eligibility for and timing

of serious area attainment date waivers

would depend upon the answers to the

last three questions on the waiver policy

diagram.

4. Can the serious area attain by the

statutory deadline after implementing

the serious area control strategy (i.e.,

BACM, (including BACT), for

significant anthropogenic sources?

If the State can demonstrate that it is

possible to attain the NAAQS by the

statutory deadline for serious areas

through the implementation of BACM,

then a waiver is not appropriate. If

attainment by the deadline is not

possible, then question 5 must be

addressed.

5. Can the area attain with an

extension of up to 5 years of the

attainment date? 26

To answer this question, the State

must determine if an extension of time

will make it technologically and

economically feasible to implement

additional control measures that will

bring the area into attainment. Again, if

it is possible to attain the NAAQS, then

a waiver is not appropriate. If

attainment is not possible even with the

maximum extension of the attainment

date allowed under section 188(e), then

question 6 must be addressed.

6. Can the area attain at any time after

the extension deadline if emissions

within the area are reduced annually by

not less than 5 percent? 27

To answer this question, the State

must determine if the implementation of

additional control measures, annually,

would eventually bring the area into

attainment. Sufficient additional control

measures would need to be

implemented to achieve at least 5

percent annual reductions in the

inventory of PM-10 emissions from

anthropogenic sources.

If EPA believes that it is practicable

for an area, where both anthropogenic

and nonanthropogenic sources

2Tho EPA may grant a single extension of the

attainment date for serious areas of no more than

5 years under the conditions of section 188(e) of the

Act. Guidance on demonstrating that a State

qualifies for an attainment date extension will be

issued in the future.

21 If an area fails to attain the NAAQS by the end

of the extension period, then the State must plan

to achieve annual reductions of not less than 5

percent of PM-10 and PM-10 precursor emissions

within the area, as reported in the most recent

inventory (see section 189(d)).

contribute to violations, to attain the

NAAQS at any time in the future, a

specific attainment date would not be

waived. Rather, as discussed previously.

the State would be expected to follow

the provisions in sections 188 and 189

for attainment date extensions and

continued emission reductions until the

NAAQS are attained. However, if

emissions from anthropo genic sources

are reduced to, the point that it is no

longer technologically or econiomically

feasible to reduce those emissions

further, and the area still cannot attain

the NAAQS, then EPA may consider

waiving the serious area attainment date

and appropriate serious area

requirements.

VI. Best Available Control Measures

A. Requirement for BACM

There are two circumstances, as

discussed earlier, under which a

moderate PM-10 nonattainment area

may be reclassified as serious. First, an

area may be reclassified whenever EPA

determines that the PM-10 NAAQS

cannot practicably be attained by the

statutory attainment date.28 Such a

determination may be made before the

attainment date if a review of the SIP for

an area shows that RACM, including

RACT, will not practicably bring the

area into attainment or if delays in

adopting, submitting, and implementing

SIP requirements form a basis for EPA

to conclude that an area cannot

practicably attain the NAAQS by the

statutory attainment date. The second

circumstance is when the area is

reclassified by operation of law upon a

determination by EPA that the area has

failed to attain the NAAQS on schedule

(see section 188(b)).

Section 189(b) establishes additional

control requirements for PM-10

nonattainment areas that are reclassified

as serious by EPA. Under section

189(b)(1)(B), States must submit SIP

revisions which provide for

implementation of the BACM for PM-10 -

emissions in such areas. These SIP

revisions must be submitted to EPA

within 18 months after an area is

reclassified and must assure that the

measures are implemented no later than

4 years after the area is reclassified as

serious (see section' 189(b) (1) and (2)).

The EPA believes, the requirement to

implement BACM in serious PM-10

nonattainment areas should, in one

respect, be interpreted similarly to the

comparable requirement to implement

RACM in moderate PM-10

2The statutory attainment date for the initial

group of areas designated nonattainment by

operation of law upon: enactment of the 1990

Amendments, under section 107(d)(4), is December

31,1994.

42008"
Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules

nonattainment areas. Section 172(c)(1),

which applies to all nonattainment

areas, states that part D RACM shall

include "such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology * * *." Thus,

moderate PM-10 nonattainment area

RACM plans, which are submitted to

meet the requirements of section

189(a)(1)(C), must include provisions

ensuring the adoption of RACT (see 57

FR 13540, column 1).

For moderate PM-1 areas

reclassified as serious, the

nonattainment control requirements

(i.e., RACM) are carried over and

elevated to a higher level of stringency

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

RACM includes RACT, in the same way,

BACM includes BACT.29 Thus, just as

moderate PM-10 SIP revisions when

implementing RACM under section

189(a)(1)(C) must provide for the

adoption of RACT, similarly, PM-10 SIP

revisions under section 189(b)(1)(B),

implementing BACM in serious PM-10

nonattainment areas, must include

provisions ensuring the adoption of

BACT. This point was explicitly

addressed in the House Committee

Report: "Serious areas must include in

their submission provisions to require

that the best available control measures

for the control of PM-10 emissions are

implemented no later than 4 years after

the area is classified or reclassified as

serious. Such provisions must include

the application of the best available

control technology to existing stationary

sources" (H.R. Rep. No. 490, 101st

Cong., 2nd Sess. 266-67 (1990)).

Although section 189(b)(1)(B) requires

BACM (including BACT) to be

.implemented in serious PM-10

nonattainment areas, the Act does not

define either BACM or BACT for PM10 nonattainment purposes. Where a

statute is silent or ambiguous with

respect to the meaning of a statutory

term, the agency is authorized to adopt

an interpretation reasonably

accommodated to the purpose of the

statutory provisi.ons.30 In considering

how to interpret the provisions

requiring BACM (including BACT) for

serious PM-10 nonattainment areas,

EPA has looked at several factors: The

way in which similar terms have been

historically interpreted in other sections

or titles of the Act, the ordinary "

grai natical usage associated with the

9Even with out the RACM analogy, the best

available technological control measures by their

plain terms are a subset of the universe of best

available control measures.

- Chevron, U.S.A., Inc. v. Natuml Resources

Defense Council, Inc., 467 U.S. 837. 843-44 (1984).

word "best," and the overall structure

and purpose of title I of the statute.

B. EPA's Historical Interpretation of

Control Technology Terminology

The Act-uses several terms to refer to

different levels of emission control

technology required for existing or new

sources: "reasonable (RACT)," "best

(BACT)," and lowest achievable

emission rate (LAER). It is helpful to

consider EPA's past and current

interpretation and implementation of

these various control levels in

determining the control level

apprbpriate for BACM for serious PM10 nonattainment areas.: The term "reasonably available" was

applied to control measures and control

technology required to be implemented

at existing sources in noijattainment

areas by the 1977 Clean Air Act

Amendments (1977 Amendments) (42

U.S.C. 7502(c)(1)). At that time, EPA

defined RACT as the lowest emission

limitation that a particular source is

capable of meeting by the application of

technology that is reasonably available

considering technological and economic

feasibility. 31 Control measures were

determined to be reasonable after

considering their energy and

environmental impacts and their

annualized capital and operating costs.

In EPA's view, the cost of using a

control measure is considered

reasonable if those same costs are borne

by other comparable facilities. Since

Congress, in the 1990 Amendmehts, did

not modify EPA's interpretations of the

RACM and RACT in the earlier 1977

Amendments, it can be presumed to

have given some endorsement to EPA's

definition of the term,

Congress defined the term "best

available control technology" in section

169(3) of the 1977 Amendments for use

in implementing the requirement to

prevent significant deterioration (PSD)

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

Act. This definition was modified by

section 403(d) of the 1990 Amendments.

The BACT is currently defined for the

PSD program as an emission limitation

based on the "maximum degree of

reduction of each pollutant * * *

emitted from or which results from any

major emitting facility, which the

permitting authority, on a case-by-case

basis, taking into account energy,

31 See, for example, 44 FR 53761-53762

(September 17, 1979) and footnote 3 of that notice.

Note that EPA's emissions trading policy statement

(51 FR 43814 (December 4, 1986)) has clarified that

RACT requirements may be satisfied by achieving

"PACT equivalent" emissions reductions in the

aggregate from the full set of existing stationary sources subject to those requirements (see also

EPA's proposed economic incentives rule, 58 FR

11110, 11123 (February 23, 1993)).

environmental, and economic impacts

and other.costs, determines is

achievable for such facility through'

application of production processes and

available methods, systems, and

techniques * * * for control of each

such pollutant." Thus, BACT is to be

determined for the PSD program on a

ease-by-case basis taking into account

the energy, environmental, and

economic impacts and other costs.

Section 169(3) also requires.that BACT

be at least as stringent as any

corresponding new source performance

standard (NSPS) or national emission

standard for hazardous air pollutants

(NESHAP).

Under the PSD program, BACT

applies through preconstruction permits

issued to major new and major modified

facilities in areas where the air quality

is better than the NAAQS (section

165(a)(4) of the Act, 42 U.S.C.

7475(a)(4)). In broad overview, BACT is

determined by identifying the

technologically feasible control

measures, from the universe of available

control techniques, which yield the

maximum degree of emission reduction,,

after considering the energy,

environmental and economic impacts of

the technology, and other costs. This

may include consideration of the

annualized capital and operating costs

for the facility. The costs of control for

a mnajor new facility or major

modification of an existing facility

should be considered as a portion of the

overall costs of the new facility.

The term LAER refers to the level of

control required for issuing a

preconstruction permit to major new or

major modified facilities in areas where

the air quality is worse than the NAAQS

(i.e., nonattainment areas) (section

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

7503(a)(2)). In broad terms, LAER is

defined at section 171(3) of the Act as

the more stringent emission rate based'

on either the most stringent State

emission limit or the most stringent

emission limit achieved in practice by

such class or category of source. Like

BACT, the LAER level of control must

be at least as stringent as the NSPS

applicable to the source, Unlike RACT

and BACT, the LAER requirement does

not consider energy or cost factors. In

general, the costs of achieving LAER in

a nonattainment area must be

considered as a portion of the overall

cost of investing in a major new or

major modified facility, as they are with

BACT in attainment areas. The EPA

believes that it is reasonable to conclude

that in selecting the term "best" to

apply to contro l measures inPM-10

serious nonattainment-areas, Congress

likely considered how the term has been

42009
Federal Register / Vol. 59, No. 157 / Tuesday, August 16. 1994 / Proposed Rules

interpreted in other sections and titles

of the Act. Several other factors

(discussed below) support such a

conclusion.

C. BACM for Serious PM-1O

Nonattainment Areas

A plain-English interpretation of the

term "best" implies a generally higher

standard of performance than one that

may be considered "reasonable." In

addition, the structural scheme

throughout title I of the Act is to require

the implementation of increasingly

stringent control measures in areas with

more serious pollution problems, while

providing such areas a longer time to

attain the applicable standards. This

structural scheme reflects a basic

underlying premise of title I. The

premise is (1) That more stringent

control measures are needed in cases

when the current control requirements

will be insufficient to bring a particular

area into attainment; and (2) that the

more serious the air quality problem,

the more reasonable it is to require

States to implement control measures of

greater stringency despite the greater

burdens such measures are likely to

cause. The Act attempts to balance the

greater burden imposed in those areas

where more stringent controls are

required by affording the State

additional time to implement them.

For example, under section 188(e),

EPA is given authority to extend the

attainment date for a serious PM-10

nonattainment area beyond the

specified statutory date, provided

certain conditions are met. One of those

conditions is that the State must

demonstrate to EPA's satisfaction that

"the plan for that area includes the most

stringent measures that are included in

the implementation plan of any State or

are achieved in practice in any State,

and can feasibly be implemented in the

area." Thus, under this section, the Act

provides such areas an opportunity to

receive additional time to attain the

NAAQS. The consequence of receiving

additional time, however, is that the

State must demonstrate that its PM-10

implementation plan contains the "most

stringent measures" that can feasibly be

implemented in the relevant area from

among those which are either included

in any other SIP or have been achieved

in practice by any other State.

Similarly, the Act requires the

application of control measures that are "reasonable" in moderate PM-10

nonattainment areas (RACM) and

control measures that are "best"

(BACM) whenever a moderate area

cannot "practicably" attain or fails to

attain the NAAQS and is therefore

reclassified as serious. Accordingly, for

the reasons stated above, EPA believes

it is reasonable to conclude that

Congress intended a greater level of

stringency to apply in areas that are

required to implement "best available"

controls than in those required only to

implement controls that are "reasonably

available."

As noted earlier, an array of different

control measures is applicable under

various title I NAAQS-related programs.

A key factor, among others, in

determining the level of control

appropriate for a given area from among

the different emission control measures

and technologies referred to throughout

title I is the severity of the air pollution

problem in that area. In addition to the

general categorization of areas as "attainment," "nonattainment," and "unclassifiable," the Act characterizes

the severity of an area's air pollution

problem by classifying the area, for

example, as "marginal," "moderate," "serious," and so on. As discussed

above, the different control measures are

required to be implemented as follows:

For new (or modified) sources, BACT

applies in PM-10 unclassifiable and

attainment areas under the PSD

program, while LAER applies in

moderate and serious PM-1O

nonattainment areas under the

nonattainment NSR program; for

existing sources, RACM (including

RACT) applies in moderate PM-10

nonattainment areas, while BACM

(including BACT) applies in serious

PM-1O nonattainment areas. In each

case, the more serious the pollution

problem, the more stringent the control

slandard required.

It is apparent that in requiring the

application of BACM to existing sources

in serious PM-10 areas, Congress

implied that these sources should be

subject to a more stringent level of

control than the application of RACM

required for existing sources in

moderate PM-10 nonattainment areas,

but not as stringent as the application of

LAER required for new or modified

sources in moderate and serious

nonattainment areas (or the degree of

control required to secure an extension

under section 188(e)).

1. Definition

In view of the preceding discussion,

EPA believes that, as a starting point in

interpreting BACM for PM-tO

nonattainment purposes, it is reasonable

to consider the term BACT as applied in

the PSD program under section 169(3)

as an analogue. Because PSD BACT and

PM-10 BACM (which includes BACT)

are similar terms, EPA believes it is

reasonable to accord some interpretive

weight to this use of similar language.-

1

2

Therefore, EPA's interpretation of

BACM for serious PM-10 nonattainment

areas will generally be similar to the

definition of BACT for the PSD program.

The BACM is the maximum degree of

emissions reduction of PM-10 and PM10 precursors from a source (except as

provided in subsection C. 3) which is

determined on a case-by-case basis,

taking into account energy,

environmental, and economic impacts

and other costs, to be achievable for

such source through application of

production processes and available

methods, systems, and techniques for

control of each such pollutant. For PM10, BACM must be applied to existing - source categories in nonattainment areas

that cannot practicably attain (or fail to

attain) withinthe moderate area

timeframe and are reclassified as

serious. 3 3

As noted above, EPA will interpret

PSD BACT and PM-10 BACM as

generally similar because, despite the

similarity in terminology, certain key

differences exist between control

measures applicable in the PSD and

PM-10 serious nonattainment area

programs. The BACT under the PSD

program applies only in areas already

meeting the NAAQS, while PM-10

BACM applies in areas which are

seriously violating the NAAQS. This

difference in policy goals, arguably,

suggests that the PM-10 BACM control

standard should be more stringent than

that for PSD BACT. On the other hand.

the burden of installing efficient

controls during construction of a new

source or source modification is

generally less onerous than retrofitting

an existing PM-10 source with similar

controls. If one compares both programs

in terms of these factors, the differing

regulatory and economic burdens and

the different policy purposes tend to

offset each other. Nevertheless, EPA

32

Under accepted principles of statutory

interpretation, similar terms in a statute generally

suggest a similar meaning, and an agency is

permitted, but not required, to give a similar

meaning to similar terms which appear. in different

parts of a statute.

33 The term "source categories" for which BACM

will be required, refers to categories of area-wide sources or large individual stationary sources of

PM-10 or PM-10 precursor emissions that may be

regulated under a specific rule, generic emission

limit, or standard of performance, or a specific

control program in a SIP. For example, the SIP may

regulate emissions from unpaved roads, *

construction activities, residential wood

combustion, asphalt concrete batch plants, etc., as source categories. Note that, in some instances, an entire source category may consist of one large

individual stationary source that is regulated

separately under the SIP such as a single iron and

steel manufacturing facility and the various

processes therein.

42010
Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules

believes that the differences in policy

goals-i.e., preventing further pollution

under the PSD program and reducing

existing pollution under the PM-10

nonattainment program--counsel

against adopting the interpretation and

implementation of PSD BACT in its

entirety for PM-10 nonattainment

purposes. Rather, EPA considers it

reasonable to use the approach adopted

in the PSD BACT program as defined in

section 169(3) of the Act as an analogue

for determining appropriate PM-10

nonattainment control measures in

serious areasi while at the same time

retaining the discretion to depart from

that approach on a case-by-case basis as

particular circumstances warrant.

2. Preventive Measures

The EPA considers measures that

prevent PM-10 emissions over the long

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

fireplaces) to be preferable to those

measures that will only temporarily

reduce emissions (e.g., curtailment of

wood stove use during air pollution

episodes or treatment of fugitive dust

sources with water). This is because

such preventive measures are inherently

more effective and involve significantly

fewer resources for surveillance,

enforcement, and administration.

Moreover, increasing emphasis on prevention over mitigation is more

likely to be both economically and

environmentally beneficial over the long

term.

3. De Minimis Source Categories

The BACM are required for all

categories of sources in serious areas

unless the State adequately

demonstrates that a particular source

category does not'contribute .

significantly to nonattainment of the

NAAQS. While EPA regards the BACM

standard applicable in PM-1 serious

areas as a more stringent control

standard which calls for a greater degree,

of emissions control for the source

categories to which it applies, EPA also

believes that it has the authority to limit

the applicability of BACM to those

source categories which "contribute

significantly" to violations of the

NAAQS. The Act leaves unresolved the

question of whether BACM is intended

to be an all-inclusive requirement

applicable to every PM-10 serious area

source category. It should be noted that

in section 189(b)(1)(B), which contains

the requirement that serious area PM-10

SIP's provide for the implementation of

BACM, Congress has not used the word

"all" in conjunction with BACM.

Congress has also not stated anywhere

in the relevant law or legislative history

that BACM must be applied to all

serious area source categories. Even if

the statute on its face were interpreted

to require States to impose BACM on all

source categories in serious PM-10

areas, the Agency believes, based on the

decision in Alabama Power Co. v. Costle,34 that it has the authority to

exempt from regulation those source

categories in the area which contribute

only negligibly to ambient

concentrations which exceed the

NAAQS. The EPA believes the court's

test for invoking the de minimis

exemption authority would be satisfied

in circumstances where a State

demonstrates conclusively that, because

of the small contribution of the source

category's emissions to the

nonattainment problem, the imposition

of additional controls, such as BACM,

on a particular source category in the

area would not contribute significantly

to the Act's purpose of achieving

attainment of the NAAQS "as

expeditiously as practicable." The EPA

will have to determine from the record

that, with respect to particular serious

area PM-10 source categories which

contribute to emissions in excess of the

NAAQS, requiring application of BACM

would produce an insignificant

regulatory benefit.

The EPA will, in general, rely on the

criteria applied under new source

permitting programs (40 CFR 51.165(b))

,to determine when a source category

contributes significantly to violations of

the NAAQS in a PM-10"serious

nonattainment area. The criteria will

also be applied spatially and temporally

in the same way it is under new source

permitting programs.

35

As discussed abovd, a moderate PM10 nonattainment area may be

reclassified as serious based on

evidence that the area cannot

practicably attain the NAAQS by ihe

statutory attainient date or evidence

that it has failed to attain by that date.

The evidence, whether modeled or

measured, will generally indicate the

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

and the location of the predicted or

monitored violation. Therefore, under

this policy, a source category (see

footnote 33) will be presumed to

34 The inherent authority of administrative

agencies to exempt de minimis situations from a

statutory command has been upheld in contexts

where an agency is invoking a de minimis

exemption as "a tool to be used in implementing

the legislative design" on the ground that "the

burdens of regulation yield a gain of trivial or no

value" (Alabama Power Co. v. Costle, 636 F.2d 323,

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

35 See "Interpretation of 'Significant

Contribution,"' memorandum from Richard G.

Rhoads to Alexandra Smith, Decdmber 16, 1980,

'OAQPS Policy and Guidance Notebook, PN 165-

80-12-10-007.

contribute significantly to a violation of

the 24-hour NAAQS if its PM-10 impact

at the location of the expected violation

would exceed 5 jig/M3 . Likewise, a

source category will be presumed to

contribute significantly to a violation of

the annual NAAQS if its PM-10 impact

at the time and location of the expected

violation would exceed I jg/m3 .

Procedures for identifying source

categories that continue to significantly

affect the air quality of a serious area

(even after RACM (including RACT) are

implemented) and procedures for

identifying the appropriate mix of

control measures applicable to those

source categories are discussed below in

subsection E.

4. BACM Analysis Independent of

Attainment Analysis

The overall structure andpurpose of

title I of the amended Act, the standard

suggested by the word "best," and the

differences in the statute between the

requirements for BACM as compared to

those for RACM, lead EPA to believe

that, unlike RACM, BACM are to be

established generally independent of an

analysis of the attainment needs of the

serious area.

As noted earlier in this section, the

overall structural scheme throughout

title I of the Act is to require the

implementation of increasingly

stringent control measures in areas with

more serious pollution problems, while

providing such areas additional time to

attain the applicable, standards. These

tougher measures are deemed necessary

in cases where it appears that less

stringent controls will be insufficient to

reduce emissions in an area to the level

of the NAAQS. As described above, the

fact that the-Act requires the application

of control measures that are "reasonable" in moderate PM-10 areas

and control measures that are "best"

whenever it is determined that a

moderate area cannot "practicably"

attain or actually fails to attain the

NAAQS and is therefore reclassified as

serious, strongly suggests that BACM is

intended to be a more stringent standard

than RACM. Thus, it is reasonable to

interpret the statute as requiring a

different analysis for determining

BACM from the practice of analyzing

RACM according to what is reasonable

in light of the overall attainment needs

of the area. Moreover, when comparing

the terms "reasonable" and "best" as

applied to control measures, the word

"best" strongly implies that there

should be a greateremphasis on the

merits of the. measure or technology

alone and less flexibility in considering

other factors.

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Additionally, for PM-10 areas

reclassified as serious before the

moderate area attainment date, States

have up to 4 years, under section

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

serious area attainment demonstration.

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

have only 18 months after

reclassification from moderate to serious

to submit their plans requiring the use

of BACM for those same areas. Thus, for

such areas, Congress provided a

difference of as much as 21/ years

between the required date for

submitting BACM plans and the date by

which to submit a new attainment

demonstration satisfying the

requirements of section 189(b)(1)(A).

This pronounced difference in timing

for the serious area submittals described

above is to be contrasted with the timing

for submittal of similar provisions for

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

both the RACM plans and the

attainment demonstration for moderate

PM-10 areas must as a general matter be

submitted at the same time. The fact

that the Act requires BACM to be

adopted and implemented by an

appreciable time before the attainment

demonstration is required, for areas that

are reclassified before the moderate area

attainment date, suggests that Congress

intended that BACM determinations be

based more on the feasibility of

implementing the measures rather than

on an analysis of the attainment needs

of the area.38 Therefore, the steps

described below for making a BACM

determination are intended to be carried

out independently from the analysis to

determine the emission reductions that

would be necessary to attain the

NAAQS by the statutory deadline. If the

attainment demonstration for the area

subsequently shows that BACM will

bring the area into attainment before the

statutory deadline, then the plan

provides for expeditious attainment of

the NAAQS. However, if the BACM are

not adequate to provide for attainment

of the standards, then the State must

submit additional measures with the

attainment demonstration that will

result in attainment of the standard by

the statutory deadline or apply for an

extension of the attainment date by

demonstrating that the specific

36The EPA believes this interpretation of the Act

is reasonable, even if, as to areas which are classified in the future as serious PM-lO

nonattainment areas because the areas have failed

to attain, the date BACM plans must be submitted

and the date the serious area attainment

demonstration is due should happen to coincide.

There is no rational basis for interpreting BACM

differently depending mersly on when an area

happens to be reclassified.

conditions of sections 108(e) and

189(b)(IHA)(ii) have been met.

D. Procedures for Determining Best

Available Control Measures

1. Inventory Sources of PM-la and PM10 Precursors

The BACM (including BACT)

applicable in a nonattainment area must

be determined on a case-by-case basis

since the nature and extent of a

nonattainment problem may vary within

the area and from one area to another.

Nonattainment problems range from

reasonably well-defined areas of

-violation caused by a specific source or

group of sources to violations over

relatively broad geggraphical areas due

predominantly to large numbers of

small sources widely-distributed over

the area. The BACM are required for all

source categories for which the State

cannot conclusively demonstrate that

their impact is de minimis. As stated

above, the EPA will generally presume

the contribution to nonattainment of

any source category to be de minimis if

the source category causes a PM-10

impact in the area of less than 5 gg/m 3

for a 24-hour average and less than 1 jtg/ m 3 annual mean concentration. The

starting point for making a BACM

determination would be to reevaluate

the emission inventory submitted with

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

of the Act calls for all nonattainment

areas to submit-comprehensive,

accurate, and current emissions

inventories andprovides for such

periodic revisions as may be necessary

to assure that the nonattainment

planning requirements are met. If there

have been any significant changes in

PM-10 sources in the area since the

inventory was first compiled (i.e.,

sources permanently shut down or new

or modified sources constructed) or if

the inventory is not adequate to support

the more rigorous analysis required for

serious area SIP demonstrations, it

should be revised. All anthropogenic

sources of PM-10 emissions and PM-10

precursors (if applicable) 37 and

nonanthropogenic sources in a

nonattainment area must be included in

the emission inventory.

Because of its importance in

identifying anthropogenic and

nonanthropogenic sources and the

applicability of BACM requirements, the

breakdown of sources to consider when

compiling an emissions inventory are as

follows:

37Ambient filter analysis and inventory

information may have been presented in certain

moderate area SIP to indicate the insignificance of

secondary particles (see 57 FR 13541-42).

a. Major point sources (i.e., sources

with the potential to emit at least 70

tons per year of PM-10 (or PM-l0

precursors) as required in sections

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

b. Minor point source categories.

c. Area source categories such as

fugitive dust from anthropogenic

sources (e.g., construction activities,

paved and unpaved roads, agricultural

activities, etc.), residential wood

combustion, prescribed burning, and

commercial/institutional fuel

combustion.

d. Nonanthropogenic sources.

2. Evaluate Source Category Impact

The second step in determining

BACM for an area is to identify those

source categories having a greater than

de minimis impact on PM-10

concentrations. The potential maximum

impact of various source categories may

have been determined with receptor or

dispersion modeling performed for the

attainment demonstration submitted

with the moderate area SIP..In addition,

the impact of some source categories

may be apparent from analysis of

ambient sampling filters from days

when the standards are exceeded. If

modeling was not performed during

development of the moderate area SIP,

receptor modeling, screening modeling

or, preferably, refined dispersion

modeling will generally be necessary at

this time to identify key source

categories.

3. Evaluate Alternative Control

Techniques

In developing a fully adequate BACM

SIP, the State is expected to evaluate the

technological and economic feasibility

of the control measures discussed in the

BACM guidance documents 38 and other

relevant materials for all source

categories impacting the nonattainment

area except those with a de minimis

impact considering emission reductions

achieved with RACM.

Energy and environmental impacts of

the control measures and the cost of

control should be considered in

determining BACM. In general, for the

reasons stated above, the test of

economic and technological feasibility

will be higher for source categories in

serious areas than for source categories

in moderate areas because of the greater

3

3 See "Technical Information Document for

Residential Wood Combustion Best Available

Control Measures," EPA-450/2-92-002, September

1992; "Prescribed Burning Background and

Technical Information Document for Best Available

Control Measures," EPA-450/2--92-003, September

1992: and, "Fugitive Dust Background Document

and Technical Information Document for Best

Available Control Measures." EPA-45012-92-04..

September 1992,

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need for emission reductions to attain

the NAAQS. As noted earlier, this

interpretation is consistent with the

overall statutory scheme which requires

that as an area's air quality worsens.

increasingly stringent control measures

are to be adopted in conjunction with

the area receiving more time to attain

the NAAQS. Thus, measures that were

not considered reasonable to implement

by the moderate area attainment date

may be BACM for serious areas because

of the additional time available for

implementing them 39 and because of

the higher degree of stringency implied

by the statutory scheme and the term

"best." Therefore, BACM could include,

though it is not limited to, expanded use

of some of the same types of control

measures as those included as RACM in

the moderate area SIP.

It does not currently appear that

mobile sources, as distinct from the

surfaces on which they travel,

contribute significantly to the PM-10 air

quality problem in a sufficient number

of areas to warrant issuing national

guidance on best available

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

However, in those areas where mobile

sources do contribute significantly to

PM-10 violations, the State must, at a

minimum, address the transportation

control measures listed in section 108(f)

to determine whether such measures are

achievable in the area considering

energy, environmental and economic

impacts and other costs.

The technological feasibility of

reducing emissions from area sources

depends on the ability to alter the

characteristics that affect emissions

from the sources. Those characteristics

have to do with the size or extent of the

sources, their physical characteristics

and the operating procedures. Reducing

emissions of fugitive dust from

construction activities, for example,

could require the most effective

combination of reducing the size of the

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

vehicle miles traveled on unpaved

surfaces), changing the physical

characteristics (i.e., silt loading on travel

surfaces or moisture content of materials

handled), and/or changing the operating

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

surface area exposed to the wind,

treating or paving travel surfaces).

3

9 The statutory attainment date for initial

moderate PM-10 nonattainment areas reclassified

as serious will be December 31, 2001. For areas

designated nonattainment subsequent to enactment

of the 1990 Amendments that become serious, the

attainment date will be before the end of the tenth

year beginning after the area's designation as nonattainment (see section 188(c)).

The technological feasibility of

applying an emission reduction method

to a particular point source should

consider the source's process and

operating procedures, raw materials.

physical plant layout, energy

requirements, and any collateral

environmental impacts (e.g., water

pollution and waste disposal). The

process, operating procedures, and raw

materials used by a source can affect the

feasibility of implementing process

changes that reduce emissions and the

selection of add-on emission control

equipment. The operation and longevity

of control equipment can be

significantly influenced by the raw

materials used and the process to which

it is applied. The feasibility of

modifying processes or applying control

equipment is also influenced by the

physical layout of the particular plant.

The space available in which to

implement such changes may limit the

choices and will also affect the costs of

control.

4. Evaluate Costs of Control

Economic feasibility considers the

cost of reducing emissions from a

particular source category and costs

incurred by similar sources that have

implemented emission reductions. As

with RACT determinations and BACT/

LAER analyses in other statutory

contexts, EPA believes that for PM-10

BACM purposes, it is reasonable for

similar sources to bear similar costs of

emission reduction. As such, when

identifying BACM consideration of

economic feasibility should not rely on

claims regarding the ability of a

particular source to "afford" to reduce

emissions to the level of similar sources.

Otherwise, less efficient sources might

be rewarded for their inefficiency by

being allowed to bear lower emission

reduction costs. Instead, economic

feasibility for PM-10 BACM purposes

should focus upon evidence that the

control technology in question has

previously been implemented at other

sources in a similar source category

without unreasonable economic

impacts.

Where the economic feasibility of a

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

public funding, EPA will consider past

funding of similar activities as well as

availability of funding sources to

determine whether a good faith effort is

being made to expeditiously implement

the available control measures. In other

words, if 20 miles of unpaved roads are

typically paved each year, then the

BACM fugitive dust program should

includq paving more than 20 miles per

year of existing roads and should offer

evidence of ambitious efforts to increase

funding and increase the priority for use

of existing funds.

The capital costs, annualized costs,

and cost effectiveness of an emission

reduction technology should be

considered in determining its economic

feasibility. The "OAQPS Control Cost

Manual, Fourth Edition," EPA-450/3-

90-006, January 1990, describes

procedures for determining these costs.

The above costs should be determined

for all technologically-feasible emission

reduction options.

E. Selection of BACM for Area Sources

Once the significant PM-I area

source categories have been identified,

the State should select area source

control measures from the candidate

BACM listed in the technical

information documents for fugitive dust.

residential wood combustion (RWC),

prescribed burning, or any other

technical information documents issued

by EPA (see footnote 38). This guidance

is based on EPA's analysis of available

control alternatives for the identified

source categories. While the guidance is

intended to be comprehensive, it is by

no means exhaustive. Consequently, the

State is encouraged to consider other

sources of information and is not

precluded from selecting other measures

and demonstrating to the public and

EPA that they constitute BACM.

Further, any control measure that a

commenter indicates during the public

comment period is available for a given

area should be reviewed by the planning

agency. The agency should determine

whether the affected categories of

sources are significant and, if so.

whether the available measure is

achievable in the area considering

energy, environmental, and economic

imp acts and other costs.

As stated earlier, EPA considers

measures that prevent PM-I emissions

over the long term to be preferable to

short-term curtailment measures.

Therefore, when selecting BACM for

area sources, a State should first

consider pollution preventive measures

and measures that provide for long-term

sustained progress toward attainment in

preference to quick, temporary control.

For example, a State should consider

requiring the replacement, over time, of

old wood stoves with cleaner-burning

wood stoves or alternative fuels. Such

programs would complement and

reduce dependance on wood-burning

curtailment programs adopted as RACM

for the moderate area SIP. However,

EPA recognizes that such long-term

measures may entail significant lead.

time and that temporary measures like

wood-burning curtailments may need to

be continued in serious areas, at a

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minimum, to provide interim health

protection.

Once the list of available measures for

an area source has been identified, the

State must evaluate the technological

and economic feasibility of

implementing the controls. The State

may refer to the technical information

documents for procedures to determine

feasibility.

When evaluating economic feasibility,

States should not restrict their analysis

to simple 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. Alternatively, the State

should consider whether measures

which cannot feasibly be implemented

in their entirety prior to the statutory

deadline for BACM implementation

could be completed over an extended

period. In that event, BACM might itself

be defined to change over time from a more limited set of measures at the

initial implementation date to a

progressively tighter or more ambitious

program at later dates.

The following example is presented to

illustrate how a gnoderate area program

of RACM for fugitive dust control may

be complemented with additional

BACM after the area is reclassified as

serious. Assume that the following

control measures were adopted as

RACM:

1. Reduce the speed limit on unpaved

county roads to 25 miles per hour.

2. Treat all unpaved county roads,

monthly, with chemical dust

suppressants within 500 feet of their

intersections with paved roads.

3. Treat 10 miles of the most heavilytraveled, unpaved county roads with

chemical dust suppressants once per

month.

4. Pave 4 miles of unpaved city

streets.

5. Treat unpaved parking lots in the

city with chemical dust suppressants

once per month.

6. Clean anti-skid materials from 50

miles of city streets within 48 hours

after snow melt begins. ... * The same area, after being reclassified

as serious, may adopt the following

BACM examples to complement the

RACM program: 4

0

1. Pave 10 miles of the most heavilytraveled, unpaved county roads.

2. Treat 10 miles of unpaved county roads with chemical dust suppressants

once per month.

3. Pave 25 unpaved county roads

within 500 feet of their intersections

with paved roads.

4. Chemically treat or pave both

shoulders of 30 miles of State highways

within the county.

5. Pave all parking lots within the

city.

6. Revise the specifications for winter

anti-skid materials to require cleaner,

less friable materials, and reduce the

quantity used per lane-mile.

7. Require crop rotations on highly

erodible lands.

8. Retire highly erodible sections of

farmland and plant indigenous

vegetation as a cover instead of lea-ving

land fallow.

9. Plant crops and windbreaks.across

the prevailing wind direction on highly

erodible lands.

In summary, the State must document

its selection of BACM by showing what

control measures applicable to each source category (not shown to be de

minimis) were considered. The control

measures selected should preferably be

measures that will prevent PM-1 0

emissions rather than temporarily

reduce them. The documentation

should compare the control efficiency of

technologically-feasible measures, their

energy and environmental impacts and

the costs of implementation.

F. Selection of BACT for Point Sources

The reviewing authority determines

BACT on a case-by-case basis. As

described above, EPA would expect the

reviewing authority to select an

emissions limitation that reflects the

maximum degree of emission reduction

of each pollutant subject to regulation

(PM-10 and/or PM-10 precursors),

taking into account energy,

environmental, and economic impacts

and other costs, that'it determines is

achievable for such facility.

In light of preceding discussions of

BACT and its statutory bases, it is EPA's

policy that BACT be determined using

the analytical methodology established

in the reviewing authority's current PSD

program to the extent that it is

consistent with guidance contained in

this notice. The analytical methodology

used sh6uld, at a minimum, consider a

4oAdoption of these typos of measures may

require coordination with other local governmental

entities such as the Departments of Agriculture,

Transportation, and/or the Interior.

representative range of available

controls (including the most.stringent,

those capable of meeting standards of

performance under 40 CFR part 60 or

61, and those identified by commenters

during the public comment period).

Selection of a particular control system

as BACT must be justified by a

comparison of the candidate control

systems considering energy,

environmental, and economic impacts,

and other costs, and be supported by the

record.

In addition, if the reviewing authority

determines that there is no

economically-reasonable or

technologically-feasible way to

accurately measure the emissions, and

hence to impose an enforceable

emissions standard, it may require the

source to use design, alternative

equipment, work practice, or

operational standards to reduce

emissions of the pollutant to the

maximum extent feasible (see, by

analogy, 40 CFR 52.21(b)(12); 40 CFR

51.166(b)(12)).

Alternative approaches to reducing

emissions of particulate matter

including PM-10 are discussed in

"Control Techniques for Particulate

Emissions From Stationary Sources" -

Volume I (EPA-450/3-81/005a) and

Volume II (EPA-450/3-81-005b),

September 1982. The design, operation,

and maintenance of general particulate

matter control systems such as

mechanical collectors, electrostatic

precipitators, fabric filters, and wet

scrubbers are discussed in Volume I.

The collection efficiency of each system

is di scussed as a function of particle

size. Information is also presented

regarding energy and environmental

considerations and procedures for

estimating costs of particulate matter

control equipment. The emission

characteristics and control technologies

applicable to specific source categories

are discussed in Volume II. Secondary

environmental impacts are also

discussed.

The BACT/LAER Clearinghouse, the

EPA Control Technology Center, and

past BACT analyses for new and

modified major sources under the PSD

program may be used to assist in

identifying available control options

and maximum achievable emission

reductions. The EPA will continue to

evaluate the need for additional

guidance and will produce additional

materials as appropriate.

VII. Contingency Measures

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

provide for the implementation of

specific measures to be undertaken if

the Administrator finds that the

I

42014
Federal Register / Vol. 59, No. 157 / Tuesday, August 16, 1994 / Proposed Rules

nonattainment area has failed to make

RFP toward attainment or to attain the

primary NAAQS by the applicable

statutory deadline. Following the

Administrator's finding, the measures

are to "take effect without further action

by the State, or the Administrator." The

EPA interprets this requirement to be

that no further rulemaking actions by

the State or EPA would be needed to

implement the contingency measures

(see generally 57 FR 13512 and 13543-

544). The EPA recognizes that certain

actions, such as the notification of

sources, modification of permits, etc.,

would probably be needed before a

measure could be implemented

effectively. However, States must show

that their contingency measures can be

implemented with minimal further

action on their part and with no

additional rulemaking actions such as

public hearings or legislative review.

After EPA determines that a moderate

PM-lu nonattainment area has failed to

attain the PM-10 NAAQS, EPA

generally expects all actions needed to

effect full implementation of the

measures to occur within 60 days after

EPA notifies the State of the area's

failure. The State should ensure that the

measures are fully implemented as

expeditiously as practicable after they

take effect. -

The purpose of contingency measures

is to ensure that additional measures

beyond or in addition to the required "core" control measures (i.e. RACM for

moderate areas and BACM for serious

areas) immediately take effect when the

area fails to make RFP or to attain the

PM-10 NAAQS in order to provide

interim public health and welfare

protection. The protection is considered

"interim" because the statute often

provides for a more formal SIP revision

in order to correct, for example, the ' failure of an area to attain the PM-10

NAAQS (e.g.. section 189(b)-serious

area plan required upon finding of

failure of moderate area to attain the

PM-10 NAAQS under 188(b)(2)-and

189(d) (plan revisions required upon

failure of serious area to attain the PM10 NAAQS)). Thus, EPA has noted

previously that contingency measures

should consist of other available control

measures not contained in the

applicable core control strategy (57 FR

13543). In designing its contingency

measures, the State should also take into

consideration the potential nature and

extent of any attainment shortfall for the

area. The magnitude of the effectiveness

of the measures should be calculated to

achieve the appropriate percentage of

the actual emission reductions required

by the SIP control strategy to bring

about attainment. The EPA has

recommended that contingency

measures provide the emission

reductions equivalent to 1 year's average

increment of RFP (see discussion

below).

Once moderate areas are subsequently

reclassified as serious, the affected

States must ensure that adequate

contingency measures, as described

above, are in place for such areas. This

is explicitly required under the statute.

Section 189(b)(1) requires areas -

reclassified as serious to submit "an

implementation plan." Under section

172(c), in turn, "plan provisions"

required under part D must provide for

the implementation of contingency

measures. Accordingly, for those

moderate areas reclassified as serious, if

all or part of the moderate area plan

contingency measures become part of

the required serious area control

measures (i.e., BACM), then additional

contingency measures must be

submitted whether or not the previously

submitted contingency measures had

already been implemented. Further, the

affected States must ensure that serious

areas have adequate contingency

measures considering, among other

things; new information about the

potential attainment shortfall for the

newly reclassified serious area. The

States must submit contingency

measures for serious areas or otherwise

demonstrate that adequate measures are

in place within 3 years of

reclassification. 4

'

VIII. Quantitative Milestones and

Reasonable Further Progress

A. General Discussion

The PM-10 nonattainment area SIP's

must include quantitative milestones

which are to be achieved every 3 years

until the area is redesignated attainment

and which demonstrate RFP toward

attainment by the applicable date (see

section 189(c) of the amended Act).

1'The Clean Air Act does not prescribe when

States containing serious PM-10 nonattainment

areas shall submit section 172(c)(9) contingency

measures (or otherwise demonstrate that adequate

contingency measures are already in place).

However, section 172(b) of the Act directs the

Administrator to establish a schedule for submittal

of the plan items in section 172(c) at the time the

Administrator designates an area as nonattainrhent.

Such schedule is to include a date or dates

"extending no later than 3 years from the date of

the nonattainment designation" (see section 172(b)).

By analogy, EPA concludes it is reasonable to

establish that the formal deadline for the submittal

of section 172(c)(9) contingency measures (or a

demonstration that adequate contingency measures

are in place) by States containing serious PM-1e

nonattainment areas Is no later than 3 years from

the date of the serious area reclassification (see

Chevron. U.S.A., Inc. v. NRDC, 467 U.S. 837. 842-

45 (1984)l.

Section 171(1) of.the Act defines RFP as "such annual incremental reductions in

emissions of the relevant air pollutant as

are required by this part (part D) or may

reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

national ambient airquality standard by

the applicable date." A discussion of

these requirements follows.

B. Reasonable Further Progress

Historically, for some pollutants, RFP

has been met by showing annual

incremental emission reductions

sufficient generally to maintain at least

linear progress toward attainment by the

specified deadline. Requiring linear

progress reductions in emissions to

maintain RFP may be appropriate in

four situations:

1. When pollutants are emitted by

numerous and diverse sources.

2. Where the relationship bet veen

any individual source and the overall

air quality is not explicitly quantified.

3. Where a chemical transformation is

involved.

4. Where the emission reductions

necessary to attain the standard are

inventory-wide.

For example, in those areas where the

nonattainment problem is attributed to

area type sources (e.g., fugitive dust,

residential wood combustion, etc.), RFP.

should be met by showing annual

incremental emission reductions.

sufficient generally to maintain linear

progress towards attainment. Total PM10 emissions should not remain

constant or increase from 1 year to the

next in such an area.

Requiring linear progress reductions

in emissions to maintain RFP is less

appropriate:

1. Where there are a limited number

of sources.

2. Where the relationships between

* individual sources and air quality are

relatively well defined.

3. Where the emission control systems

utilized (e.g., at major point sources)

will result in swift and dramatic

emission reductions.

For example, in those areas where the

PM-iO nonattainment problem is

attributed to a few stationary sources,

RFP should be met by "adherence to an

ambitious compliance schedule" .t2

which is likely to periodically yield

significant emission reductions.

Adherence to "an ambitious compliance

schedule" does not necessarily mean

that it would be unreasonable to achieve

42 U.S. EPA. Office of Air Quality Planning and

Standards, "Guidance Document for Correction of

Part D SIP's for Nonattahnment Areas," Research

Triangle Park, NC. January 27, 1984, page 25.

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

annual incremental emission reductions

or generally linear progress, however.

The SIP's for PM-10 nonattainment

areas must include detailed schedules

for compliance with emission

regulations in the areas and accurately

indicate the corresponding annual

emission reductions to be realized from

each milestone in the schedule. In

reviewing the SIP, EPA will determine

whether the annual incremental

emission reductions to be achieved are

reasonable in light of the statutory

objective to ensure timely attainment of

the PM-10 NAAQS. Additionally, EPA

believes that it is appropriate to require

early implementation of the most costeffective control measures (e.g.,

controlling fugitive dust emissions at

the stationary source) while phasing in

the more expensive control measures,

such as those involving the installation

of new hardware.

Section 189(c) provides that the

quantitative milestones submitted by a State for an area also must be consistent

with RFP for the area. Thus, EPA will

determine an area's compliance with

RFP in conjunction with determining its

compliance with the quantitative

milestone requirement. Because RFP is

an annual emission reduction

requirement and the quantitative

milestones are to be achieved every 3

years, when a State demonstrates an area's compliance with the quantitative

milestone requirement, it should also

demonstrate that RFP has been achieved

during each of the relevant 3 years.

Thus, the discussion of quantitative

milestones below refers to the "RFP/

milestone" submittal dates,

achievement dates and demonstration

(or reporting) requirements.

C. Quantitative Milestones

1. Nature of Quantitative Milestones

As mentioned above, PM-10

nonattainment SIP's are to contain

quantitative milestones (see section

189(c)). These quantitative milestones

should consist of elements which allow

progress to be quantified or measured.

Specifically, States should identify and

submit quantitative milestones

providing for the amount of emission

reductions adequate to achieve the

NAAQS by the applicable attainment

(late. The following are examples of

measures which support and

demonstrate how the overall

quantitative milestones identified for an

area may be met:

a. Percent implementation of various

control strategies (e.g., pave 50 percent

of culpable streets, replace 75 percent of

residential wood heaters with natural

gas heating units).

b. Percent compliance with

implemented control measures. c. Adherence to.a compliance

schedule.

2. RFP/Milestone Due Dates

As mentioned above, PM-10

nonattainment SIP's are to contain

quantithtive milestones which are to be

achieved every 3 years until the area is

redesignated attainment. There is a gap

in the law in that the text of section

189(c) does not articulate the starting

point for counting the 3-year period.

The EPA believes it is reasonable to

begin counting the 3-year milestone

deadline from the due date (and not the

submittal date) for the applicable

moderate area implementation plan

revision (see section IlI.C.1.(f) of the

General Preamble (57 FR 13539) for an

explanation of why EPA believes it is

appropriate to begin counting the 3-year

milestone deadline from the SIP due

date).

The first "RFP/milestone"

achievement date for those areas

initially designated as nonattainment for

PM-10 by operation of law when the

Act was amended will be the moderate

area attainment date of December 31,

1994, as stated in section III.C.l.f. of the

General Preamble (57 FR 13539). The

RFP/milestone achievement date would

normally be November 15, 1994, 3 years

after the SIP due date of November 15,

1991. The achievement date was

delayed 46 (lays, however, because the

de minimis timing differential between

the attainment date and the literal first

milestone date made it administratively

impracticable and of trivial value to

require separate milestones and

attainment demonstrations for these

areas. Thus, for these initial areas that

demonstrate timely attainment, EPA's

policy is to deem the emission

reductions progress made between the

SIP submittal due date and the

altainment (late as sufficient to satisfy

the first milestone requirement (57 FR

13539).

Thus the initial RFP/milestone will be

met by showing that emission

reductions scheduled to be made

between the SIP due date and the

attainment date for these moderate areas

were actually achieved. Most of the

emission reductiGns will result from

implementation of RACM (including

RACT) adopted as part of the moderate

area SIP. The Act requires that RACM be

implemented by December 10, 1993 in

the initial PM-10 nonattainment areas

(. ;ee section 189(a)).

Subsequent RFP/milestones for these

initial PM--10 nonattaininent areas that

are reclassified as serious will be due

every 3 3ears after the original due date

for the moderate area SiP.4 3 Therefore,

the second RFP/milestone for the initial

nonattainment areas that are reclassified

as serious must be achieved by

November 15, 1997. The third RFP/

milestone achievement date will be

November 15, 2000, etc. These RFP/

milestones should be addressed by

quantifying and comparing the annual

incremental emission reductions which

result from implementation of BACM/

BACT (required within 4 years after the

area is reclassified as serious) and from

additional measures included in the

final serious area SIP to those

reductions which were identified in the

SIP as quantitative milestones necessary

to achieve the NAAQS by the applicable

attainment date. The annual

incremental emission reductions must

be sufficient to assure attainment as

expeditiously as practicable but not

later than December 31, 2001. In some

cases it may also be appropriate to

require that the annual incremental

emission reductions maintain at least

linear progress toward attainment, as

discussed earlier.

3. RFP/Milestone Report

The State must demonstrate to EPA,

within 90 days after the milestone

achievement date, that the SIP measures

are being implemented and the RFP/

quantitative milestones have been met

(see section 189(c)(2)). The RFP/

milestone report must be submitted

from the Governor or Governor's

designee to the Regional Administrator

of the respective EPA Regional Office

which serves the State where the

affected area is located.

The RFP/milestone report must

contain technical support sufficient to

document completion statistics for

appropriate milestones. For example,

the demonstration should graphically

display RFP over the course of the

relevant 3 years and indicate how the

emission reductions achieved to date

compare to those required or scheduled

to meet RFP and the required

'

3 The plain terms of section 189(c) require that

milestones be achieved "every 3 years until the area

is redesignated attainment" and, therefore, do not

rontemplate any breaks in the milestones due to an

area's reclassification. Further, reclassifying an area

to serious does not obviate the State from controls

and emission reductions required in the moderate

a,ea implementation plan (see section 189(b)(1)). A

c.ontinuous series of control measures must be

implemented in PM-10 nonattainment areas

laginning with RACM (including RACT) and

fillowed by contingency measures which are to be

implemented if the moderate area fails to attain.

Next, BACM (including BACT) must be

implemented within 4 years after the area is

reclassified as serious. Subsequently, it may be

necessary to implement additional control measures

beyond BACM/BAf:T to attain thq NAAQS.

Tlierefore, the siructure of the A t requires a series

of measures wbich can provide for RcP/nilcstones.

m, I I

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

milestones. The calculations (and any

assumptions made) necessary to

determine the emission reductions to

date should also be submitted. The

denonstration should also contain an

evaluation of whether the PM-10

NAAQS will be attained by the

projected attainment date in the SIP.

i.e., answer the question "Are the

emission reductions to date sufficient to

ensure timely attainment?"

Within 90 days of its receipt, EPA

.must determine whether or not the

* State's demonstration is adequate and

meets all the requirements discussed

above. The EPA will notify the State of

its determination by sending a letter to

the appropriate Governor or Governor's

designee.

4. Failure to Submit RFP/Milestone

Report or Meet RFP/Milestones

If a State fails to submit the RFP/

milestone report within the required

timeframes or if EPA determines that

the State has not met any applicable

RFP/milestone, EPA shall require the

State, within 9 months after such failure

or determination, to submit a plan

revision that assures that the State will

achieve the next milestone (or attain the

PM-10 NAAQS, if there is no next

milestone) by the applicable date (see

section 189(c)(3)). For example, with

respect to RFP, if the required annual

emission reductions are not achieved for

the relevant years according to the RFP

schedule and the implementing

milestone requirement, EPA will require

the State to submit a SIP revision so that

these deviations can be corrected and

attainment assured by the applicable

date. This would also necessitate

implementation of appropriate

contingency measures pursuant to

section 172(c)(9).

Note also that failure to meet RFP, if

not expeditiously corrected, could also

result in the application of sanctions as

described in sections 1 10(m) and 179(b)

of the amended Act (pursuant to a

finding under section 179(a)(4)).

IX. Other Requirements

A. Executive Order 12866

Under Executive Order 12866 (E.O.

12866) (58 FR 51,735 (October 4, 1993)),

the Agency must determine whether the

regulatory action is "significant" and

therefore subject to the Office of

Management and Budget (OMB) review

and the requirements of E.O. 12866. The

E.O. 12866 defines "significant

regulatory action" as one that is likely

to result in a rule that may:

1. Have an annual effect on the

economy of $100 million ormore or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety; or

state, local, or tribal government or

communities;

2. create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

3. materially alter the budgetary

impact of entitl6ments, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or 4. raise novel legal or policy issues

,arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of E.O. 12866,

OMB has notified EPA that this action

is a "significant regulatory action"

within the meaning of the Executive

Order. For this reason, this action was

submitted to OMB for review. Changes

made in response to OMB suggestions or

recommendations will be documented

in the public record.

B. Regulatory Flexibility Act

Whenever the Agency is required by

section 553 of the Administrative

Procedure Act (APA) or any other law

to publish general notice of proposed

rulemaking for any proposed rule, the

Agency shall propose and make

available for public comment an initial

regulatory flexibility analysis. The

regulatory flexibility requirements do

not apply for this PM-10 serious area

addendum to the General Preamble

because it is not a regulatory action in

the context of the APA or the Regulatory

Flexibility Act.

Dated: July 29, 1994.

Carol M. Browner,

Administrator.

[FR Doc. 94-19884 Filed 8-15-94; 8:45 am]

BILLING CODE 656040-P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 94-74; RM-84761

Radio Broadcasting Service; Elma, WA

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule; Correction.

SUMMARY: This document contains a

correction to the Notice of Proposed

Rule Making (MM Docket No. 94-74:

RM-8476), which was published

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

The Notice proposed the allotment of

Channel 271A at Elma, Washington, as

the'community's first local aural

transmission service.

EFFECTIVE DATE: August 16, 1994.

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 634-6530.

SUPPLEMENTARY INFORMATION: Need for

Correction.

As published, the Notice reflected the

wrong rulemaking number which needs

to be corrected.

Correction of Publication.

, Accordingly, the publication on July

25, 1994 of the Public Notice regulations

(MM Docket No. 94-74) which were the

subject of FR Doc. 94-17992, is

corrected as follows:

On page 37737, in the third column,.

under 47 CFR Part 73, the rulemaking

number is corrected to read "RM-8503"

in lieu "RM-8476."

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 94-19989 Filed 8-15-94; 8:45 aml

BILLING CODE -6712-01-M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AA24

Migratory Bird Hunting: Proposed

Migratory Bird Hunting Regulations on

Certain Federal Indian Reservations

and Ceded Lands for the 1994-95

Season

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: This rule proposes special

migratory bird hunting regulations that

would be established for certain tribes

on Federal Indian reservations, offreservation trust lands and ceded lands

for the 1994-95 migratory bird hunting

season.

DATES: The comment period for these

proposed regulations will end August

31, 1994.

ADDRESSES: Address Comments to:

Director (FWS/MBMO), U.S. Fish and

Wildlife Service, 634 ARLSQ, 1849 C

St., NW, Washington, DC 20240.

Comments received, if any, on these

proposed special hunting regulations

and tribal proposals will be available for

ptblic inspection during normal

business hours in Room 634-Arlington

Square Building, 4401 N. Fairfax Drive.

Arlington, VA.

FOR FURTHER INFORMATION CONTACT: Dr.

Keith A. Morehouse, Office 6f Migratory

Bird Management, U.S. Fish and

42017