+(,121/,1(

Citation: 72 Fed. Reg. 14422 2007 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Wed Jul 11 18:17:52 2012

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
14422 Federal Register/Vol. 72, No. 59/Wednesday, March 28, 2007/Rules and Regulations

responsibilities between the Federal

Government and Indian tribes.

Energy Effects

We have analyzed this rule under

Executive Order 13211, Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use. We have

determined that it is not a "significant

energy action" under that order because

it is not a "significant regulatory action"

under Executive Order 12866 and is not

likely to have a significant adverse effect

on the supply, distribution, or use of

energy. The Administrator of the Office

of Information and Regulatory Affairs

has not designated it as a significant

energy action. Therefore, it does not

require a Statement of Energy Effects

under Executive Order 13211.

Technical Standards

The National Technology Transfer

and Advancement Act (NTTAA) (15

U.S.C. 272 note) directs agencies to use

voluntary consensus standards in their

regulatory activities unless the agency

provides Congress, through the Office of

Management and Budget, with an

explanation of why using these

standards would be inconsistent with

applicable law or otherwise impractical.

Voluntary consensus standards are

technical standards (e.g., specifications

of materials, performance, design, or

operation; test methods; sampling

procedures; and related management

systems practices) that are developed or

adopted by voluntary consensus

standards bodies.

This rule does not use technical

standards. Therefore, we did not

consider the use of voluntary consensus

standards.

Environment

We have analyzed this rule under

Commandant Instruction M16475.1D

and Department of Homeland Security

Management Directive 5100.1, which

guide the Coast Guard in complying

with the National Environmental Policy

Act of 1969 (NEPA)(42 U.S.C. 4321-

4370f0, and have concluded that there

are no factors in this case that would

limit the use of a categorical exclusion

under section 2.B.2 of the Instruction.

Therefore, this rule is categorically

excluded, under figure 2-1, paragraph

(34)(g), of the Instruction, from further

environmental documentation. This

regulation establishes a security zone. A

final "Environmental Analysis Check

List" and a final "Categorical Exclusion

Determination" are available in the

docket where indicated under

ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

m For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR part 165 as follows:

PART 165-REGULATED NAVIGATION

AREAS AND LIMITED ACCESS AREAS

0 1. The authority citation for part 165

continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.

Chapter 701; 50 U.S.C. 191, 195; 33 CFR

1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L.

107-295, 116 Stat. 2064; Department of

Homeland Security Delegation No. 0170.1.

0 2. Add § 165.507 to read as follows:

§ 165.507 Security Zone; Chesapeake Bay,

between Sandy Point and Kent Island, MD.

(a) Definitions. The Captain of the

Port, Baltimore, Maryland means the

Commander, Coast Guard Sector

Baltimore, Maryland or any Coast Guard

commissioned, warrant, or petty officer

who has been authorized by the Captain

of the Port, Baltimore, Maryland to act

on his or her behalf.

(b) Location. The following area is a

security zone: All waters of the

Chesapeake Bay, from the surface to the

bottom, within 250 yards north of the

north (westbound) span of. the William

P. Lane Jr. Memorial Bridge, and 250

yards south of the south (eastbound)

span of the William P. Lane Jr.

Memorial Bridge, from the western

shore at Sandy Point to the eastern

shore at Kent Island, Maryland.

(c) Regulations. (1) All persons are

required to comply with the general

regulations governing security zones

found in § 165.33 of this part.

(2) Entry into or remaining in this

zone is prohibited unless authorized by

the Coast Guard Captain of the Port,

Baltimore, Maryland.

(3) Persons or vessels requiring entry

into or passage through the security

zone must first request authorization

from the Captain of the Port, Baltimore

to seek permission to transit the area.

The Captain of the Port, Baltimore,

Maryland can be contacted at telephone

number (410) 576-2693. The Coast

Guard vessels enforcing this section can

be contacted on VHF Marine Band

Radio, VHF channel 16 (156.8 MHz).

Upon being hailed by a U.S. Coast

Guard vessel by siren, radio, flashing

light, or other means, the operator of a vessel shall proceed as directed. If

permission is granted, all persons and

vessels must comply with the

instructions of the Captain of the Port,

Baltimore, Maryland and proceed at the

minimum speed necessary to maintain a

safe course while within the zone.

(d) Enforcement. The U.S. Coast

Guard may be assisted in the patrol and

enforcement of the zone by Federal,

State, and local agencies.

(e) Enforcement period. This section

will be enforced annually on the first

Sunday in May from 7 a.m. to 5 p.m.

local time.

Dated: March 16, 2007.

Brian D. Kelley,

Captain, U.S. Coast Guard, Captain of the

Port, Baltimore, Maryland.

[FR Doc. E7-5718 Filed 3-27-07; 8:45 am]

BILUNG CODE 4910-15-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 81

(EPA-R09-OAR-2006-AZ-0558; FRL-8292-

6]

Approval and Promulgation of

Implementation Plans; Designation of

Areas for Air Quality Planning

Purposes; State of Arizona; Boundary

Redesignation; Finding of Attainment

for Miami Particulate Matter of 10

Microns or Less (PM 1 o) Nonattainment

Area; Determination Regarding

Applicability of Certain Clean Air Act

Requirements; Correction

AGENCY: Environmerital Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action to approve the State of Arizona's

boundary redesignation of the Hayden/

Miami PM1o nonattainment area into

two separate PM10 nonattainment areas:

Hayden and Miami. EPA is also finding

that the Miami PM10 nonattainment area

is attaining the PM1o national ambient

air quality standard, and, based on this

attainment finding, EPA is determining

that certain Clean Air Act reqlirements

are not applicable for so long as the

Miami area shows continued attainment

of the standard based on current,

publicly available, quality-assured

monitoring data. EPA is taking this

action consistent with obligations under

the Clean Air Act to act on State

redesignations. Lastly, EPA is correcting

two errors in previous rulemakings that

involved the designations of PM10 areas

within the State of Arizona.

DATES: This rule is effective on May 29,

2007, without further notice, unless

EPA receives adverse comments by

April 27, 2007. If adverse comment is

received, EPA will publish a timely

HeinOnline -- 72 Fed. Reg. 14422 2007
Federal Register/Vol. 72, No. 59/Wednesday, March 28, 2007/Rules and Regulations

withdrawal of the direct final rule in the

Federal Register informing the public

that the rule will not take effect.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-R09-

OAR-2006-AZ-0558 by one of the

following methods:

9 Federal eRulemaking portal: http://

www.regulations.gov. Follow the on-line

instructions for submitting comments.

* E-mail: tax.wienke@epa.gov.

* Fax: (415) 947-3579 (please alert

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing

comments).

* Mail: Wienke Tax, Office of Air

Planning, Environmental Protection

Agency (EPA), Region 9, Mailcode AIR2, 75 Hawthorne Street, San Francisco,

California 94105-3901.

9 Hand Delivery: Wienke Tax, Office

of Air Planning, Environmental

Protection Agency (EPA), Region 9,

Mailcode AIR-2, 75 Hawthorne Street,

San Francisco, California 94105-3901.

Such deliveries are only accepted

Monday through Friday, 8 a.m. to 4:55

p.m., excluding federal holidays.

Special arrangements should be made

for deliveries of boxed information.

Instructions: Direct your comments to

Docket ID No. EPA-R09-OAR-2006-:

AZ-0558. EPA's policy is that all

comments received will be included in

the public docket without change and

may be made available online at http://

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit information that you

consider to be CBI or otherwise

protected through http://

www.regulations.gov or e-mail. The

http://www.regulations.gov Web site is

an "anonymous access" system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an e-mail comment directly

to EPA, without going through http://

www.regulations.gov, your e-mail

address will be automatically captured

and included s part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses. For additional information

about EPA's public docket visit.the EPA

Docket Center homepage at http://

www.epa.goviepahome/dockets.htm.

Docket: All documents in the docket

are listed in the http://

www.regulations.gov index. Although

listed in the index, some information is

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

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

will be publicly available only in hard

copy form. Publicly available docket

materials are available either

electronically in http://

www.regulations.gov or in hard copy at

the Office of Air Planning,

Environmental Protection Agency

(EPA), Region 9, Mailcode AIR-2, 75

Hawthorne Street, San Francisco,

California 94105-3901. EPA requests

that if at all possible, you contact the

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view

the hard copy of the docket. You may

view the hard copy of the docket

Monday through Friday, 8 a.m. to 4

p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Wienke Tax, Office of Air Planning,

Environmental Protection Agency

(EPA), Region 9, Mailcode AIR-2, 75

Hawthorne Street, San Francisco,

California 94105-3901, (520) 622-1622,

tax. wienke@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever

"we," "us," or "our" is used, we mean

the EPA.

Table of Contents

I. Background

A. What NAAQS are Considered in this

Action?

B. What is the Designation and

Classification of this PM1 o Nonattainment Area?

II. Boundary Redesignation

A. What Did the State Submit?

B. How Does EPA Evaluate Boundary

Redesignations?

C. What is EPA's Evaluation of the State's

Submittal?

D. What Are the Implications of EPA's

Approval of the State's Boundary

Redesignation?

III. Finding of Attainment for Miami Area

and Determination Regarding Applicability

of Certain Clean Air Act Requirements

A. How do we Make Attainment

Determinations?

B. What is the Basis for EPA's

Determination that the Miami Area is

Attaining the PMlo NAAQS?

C. What Are the Applicable Planning

Requirements for the Miami Area as a

Result of EPA's Attainment

Determination?

IV. Corrections to the Arizona PM,o Table in

40 CFR Part 81

V. EPA's Final Action

VI. Statutory and Executive Order Reviews

I. Background

A. What NAAQS Are Considered in this

Action?

National ambient air quality standards

(NAAQS) are thresholds for certain

ambient air pollutants set by EPA under

the Clean Air Act (CAA or "Act") to

protect public health and welfare.

Particulate matter with an aerodynamic

diameter less than or equal to 10

micrometers, or PM10 , is the subject of

this action. PMo is among the ambient

air pollutants for which EPA has

established NAAQS. PM1o causes

adverse health effects by penetrating

deep in the lungs, aggravating the

cardiopulmonary system. Children, the

elderly, and people with asthma and

heart conditions are the most

vulnerable.

In 1971, EPA promulgated the first

NAAQS for particulate matter (PM) and

defined the standard in terms of an

indicator referred to as "total suspended

particulate," or "TSP," which roughly

included all particles with diameters of

30 microns or less. In 1987, EPA

established new PM NAAQS and

defined the new standards in terms of

PM10o instead of TSP. See 52 FR 24634

(July 1, 1987). Ten years later, in 1997,

EPA established another PM NAAQS

and defined this new standard in terms

of particulate matter with an

aerodynamic diameter less than or equal

to 2.5 micrometers, or PM 2.5, but in our

1997 final rule, we decided to retain a

PM1o NAAQS as well. See 62 FR 38652

(July 18, 1997). In 2006, EPA completed

a review of both the PM2.

5 NAAQS and

PM1o NAAQS and, among other actions,

decided to retain the 24-hour-average

PM1o standard at its current level but to

revoke the annual-average PM10

standard. See 71 FR 61144 (October 17,

2006). The level of the primary (i.e.,

public health) PMio standard is 150

micrograms per cubic meter (ig/m 3),

24-hour average concentration.' See 40

CFR 50.6. The secondary PM1o standard,

promulgated to protect against adverse

welfare effects, is identical to the

primary standard.

iThe effective date of EPA's October 17, 2006

final rule revoking the annual-average standard was

December 18, 2006. Thus, we make no finding in

this direct final rule relative to the annual-average

PMjo NAAQS but have included annual-average

PM1o concentration data for informational purposes

only. The now-revoked annual-average PMlo

NAAQS was set at a level of 50 Ig/m 3

.

14423

HeinOnline -- 72 Fed. Reg. 14423 2007
14424 Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Rules and Regulations

B. What is the Designation and

Classification of this PM1o

Nonattainment Area?

Under the Clean Air Act Amendrr

of 1977, and due to recorded violatii

of the former TSP-defined NAAQS E

the location of major industrial sour

EPA designated one township in ea(

the Hayden and Miami areas as sepi

nonattainment areas for TSP (44 FR

21261, April 10, 1979, as corrected

FR 53081, September 12, 1979).2 As

noted above, in 1987, we revised th

NAAQS to include only particulate

matter of a size range less than or eq

to a nominal 10 microns (PM1o). As

of the implementation policy for the

new standards, where insufficient P

data were available, EPA categorizec

areas based on their probability of

violating the standard using TSP dal

The categories were: Group I, areas

a high probability of violating the

standards; Group II, areas with a

moderate probability of violating; an

Group III, areas that were likely to bi

attaining the standards.

In 1987, EPA identified the "Hayd

Miami area" as one of the Group I ar

for PM. See 52 FR 29383 (August 7

1987). In a 1990 clarification, we

defined the geographic area of the

combined Hayden/Miami Group I ar

as including all or part of 26 contigu

townships in and around the towns

Hayden and Miami (55 FR 45799,

October 31, 1990). 3

Subsequent to our 1990 clarificatii

and upon enactment of the Clean Ai

Act Amendments of 1990, all "Grou

areas, such as the Hayden/Miami

planning area, were designated as "nonattainment" for the PM10 NAA(

by operation of law and classified as "moderate." See CAA sections

107(d)(4)(B) and 188(a). In March 19

EPA announced the designations an

classifications of areas With respect I

PMio NAAQS that occurred by

operation of law upon enactment of

1990 Amendments to the CAA. See

FR 11101 (March 15, 1991). In Augu

1991, EPA rejected challenges made

.

2 Hayden and Miami are towns located near

significant mining and copper smelting activiti

east central Arizona, roughly 70 to 80 miles eal

southeast of Phoenix. Miami is located in Gila

County; Hayden straddles the boundary betwe

Gila County and Pinal County approximately 2

miles south of Miami.

3 The Hayden/Miami "Group I" area

encompassed the following townships: TiN, R

TIN, R14E; TiN, R15E; TlS, R3E; TiS, Ri4E;

R141/2E; TiS, R15E; T2S, R3E; T2S, R14E; T2

R15E; T3S, R13E; T3S, R14E; T3S, R15E; T3S, I

(except that portion in the San Carlos Indian

Reservation); T4S, R13E; T4S, R14E; T4S, R15F

T4S, R16E; T5S, R13E; T5S, R14E; T5S, R15E;'

R16E; T6S, R13E; T6S, R4E; T6S, R15E; and T

R16E.

the State of Arizona and industry to the

geographic size of the Hayden/Miami

PM1o nonattainment area. See 56 FR

tents 37654 (August 8, 1991). Later that same

ons year, we codified the PM1o

and nonattainment designations and

ces, moderate area classifications in 40 CFR

ch of part 81. See 56 FR 56694 (November 6, re of 1991). For "moderate" nonattainment

Lrate areas such as the Hayden/Miami PM10

it 44 nonattainment area, CAA section 188(c)

of the 1990 Amended Act establishes an

attainment date of December 31, 1994. PM Along with the new designations,

classifications, and attainment dates, the

ual CAA as amended in 1990 also

part established new planning requirements.

In accordance with section 189(a) of the M10 CAA, Arizona was required to submit a

'state implementation plan (SIP) revision

by November 15, 1991 demonstrating :a. attainment of the PM10 standards and

with providing for implementation of

reasonably available control measures

(RACM) by December 31, 1994 for the

id Hayden/Miami area. The State of E Arizona relied upon a SIP revision

("Final PM-10 State Implementation en/ Plan for the Hayden Group I Area"

eas dated September 1989) that it had

submitted on October 16, 1989 to meet

the requirements of the CAA as

amended in 1990 for "moderate" PM1o ea nonattainment areas.

ous In 1994, we proposed a limited

of approval and limited disapproval of

Arizona's 1989 SIP revision. See 59 FR

36116 (July 15, 1994). The primary

)n reason for the proposed limited

r disapproval was that the plan addressed

p I" only the Hayden portion of the Hayden/

Miami PM1o nonattainment area. In

response, by letter dated November 10,

S 1994, the Governor's designee for CAA

matters, the Arizona Department of

Environmental Quality (ADEQ),

91, submitted a formal petition for

d rulemaking to realign the Hayden/

:t Miami PM1o nonattainment area boundary. Specifically, ADEQ requested

the that EPA.correct the purported error the

56 Agency had made in including the

st Miami area in the original Group I area

by in 1987 and called for exclusion of the

northern third of the-area (i.e., the

Miami portion) from the nonattainment es in area. We have not taken final action on our 1994 proposed limited approval/ limited disapproval of ADEQ's 1989 SIP

7 revision. In today's direct final rule, we again are taking no action on ADEQ's

1989 SIP revision but will address

13j; applicable CAA requirements for the

S, Hayden area in a future rulemaking. For

RU6E the Miami area, in this direct final rule,

we are making an attainment finding

and a determination regarding

6S, applicability of certain CAA

requirements (see section III, below).

On June 20, 2006, under CAA section

107(d)(3)(D), ADEQ submitted a request

for a boundary redesignation of the

Hayden/Miami PM1o nonattainment

area to EPA for approval. In contrast

with ADEQ's 1994 petition, ADEQ's

2006 boundary redesignation would not

reduce the overall size of the area

designated as nonattainment for PM10

but would simply divide a single PM1o

nonattainment area into two PM1o

nonattainment areas. We consider

ADEQ's June 20, 2006 boundary

redesignation (discussed in the

following section of this direct final

rule) to supersede the State's 1994

petition and thus plan no further action

on that earlier request.

II. Boundary Redesignation

A. What Did the State Submit?

On June 20, 2006, ADEQ submitted to

EPA under CAA section 107(d)(3)(D) a

request for a boundary redesignation of

the Hayden/Miami PM1o nonattainment

area into two separate, but adjoining,

PMio nonattainment areas, namely, the

Hayden nonattainment area and the

Miami nonattainment area. ADEQ

enclosed a technical justification report

entitled, "Request to Revise the Hayden/

Miami PM10 Nonattainment Area

Boundary" (May 2006), in support of

this boundary redesignation. ADEQ's

technical justification report includes a

discussion of the regulatory background

and the topographical and

meteorological characteristics of the

Hayden and Miami areas. The report

also includes tables summarizing

emission inventory and ambient air

quality data and maps showing the

existing nonattainment area boundaries,

topographical features, the locations of

permitted emissions sources, and the

boundary delineating the new Miami

and Hayden PM10 nonattainment areas.

Together, these two new PM1o

nonattainment areas would cover the

same geographic area as the original

Hayden/Miami PM nonattainment

area. ADEQ's boundary separating the

Miami and Hayden PM10 areas runs east-west in steps using township and

section identifiers to roughly trace the

ridgeline of the Pinal Mountains.

B. How Does EPA Evaluate Boundary

Redesignations?

Under section 107(d)(3)(D) of the

CAA, the Governor of any State may, on the Governor's own motion, submit to

EPA a revised designation of any area or

portion thereof within the State.4 EPA is

required to approve or deny a submittal

4 Boundary changes are an inherent part of a

designation or redesignation of an area under the

CAA. See CAA section 107(d)(i)B)(ii).

HeinOnline -- 72 Fed. Reg. 14424 2007
. Federal Register / Vol. 72, No. 59 / Wednesday, March 28, 2007 / Rules and Regulations

for r~designation within 18 months of

receipt. The type of redesignation that

ADEQ submitted on June 20, 2006

involves just a boundary change and

does not involve a change in status (i.e.,

does not involve a change from "nonattainment," for example, to

"attainment" or "unclassifiable") of any

area. In this notice, we refer to the

former type of redesignation as a

"boundary redesignation."

In determining whether to approve or

deny a State's submittal of a boundary

redesignation under section

107(d)(3)(D), EPA uses the same factors

Congress directed EPA to consider when

the Agency initiates a revision to a

designation of an area on its own

motion under section 107(d)(3)(A).

These factors include "air quality data,

planning and control considerations, or

any other air quality-related

considerations the Administrator deems

appropriate." See CAA section

107(d)(3)(A). In addition, because

ADEQ's redesignation involves a

nonattainment area, we also take into

account CAA section 107(d)(1)(A),

which provides that nonattainment

areas are to include the geographic area

that does not meet, or that contributes

to ambient air quality in a nearby area

that does not meet, the NAAQS for a

given pollutant.

C. What is EPA's Evaluation.of the

State's Submittal?

We have reviewed and evaluated

ADEQ's technical justification report

and conclude that ADEQ has adequately

demonstrated that the Miami and

Hayden PMo nonattainment areas lie in

separate airsheds in which air quality is

determined by topographical and

meteorological factors and local

emissions sources specific to each

airshed with no significant PM1 0

transport between the two areas. We

also conclude that ADEQ's division of

the two areas essentially along the

ridgeline of the Pinal Mountains follows

logically from the identification of these

separate airsheds. As such, each new

PM1o nonattainment area encompasses

the geographic area of historic PM10 (or,

in the case of Miami, TSP) NAAQS

violations as well as the sources which

contributed to those violations.

Therefore, we are approving the State's

boundary redesignation of the Hayden/

Miami PMIo nonattainment area and are

thereby establishing separate Hayden

and Miami PM10 nonattainment areas.

We provide further detail on our

evaluation in the paragraphs that follow.

Topography

As noted previously, the Hayden/

Miami PMIo nonattainment area is

located in east central Arizona. The

town of Hayden is situated in the

southern portion of the nonattainment

area, approximately 27 miles south of

the town of Miami, which is located in

the northern portion of the

nonattainment area. Between the two

towns lie the predominant geographic

features of the noiiattainment area: the

Pinal, Mescal, and Dripping Spring

Mountain ranges.

Airsheds refer to areas with common

weather or meteorological conditions

and sources of air pollution. Generally

speaking, an airshed contains source

and receptor areas. The Pinal and

Mescal Mountains, the highest of the

three mountain ranges in this area, form

a boundary between the Lbwer Salt

River Airshed and the Gila River

Airshed. These two interconnecting

ranges separate the southern or Hayden

. portion of the nonattainment area from

the northern or Miami portion. Figure 1

in the Stafe's technical justification

report illustrates the topographical

'features in the region.

Elevations in the Pinal and Mescal

Mountains are well over 5,000 feet

above sea level with numerous peaks

above 6,000 feet. Pinal Peak is the

highest point at 7,848 feet. Elevational

differences between lower elevations in

the southern portion of the

nonattainment area and the airshed

boundary (i.e., the ridgeline of the Pinal

Mountains) generally range between

4,000 and 6,000 feet. Elevational

differences between the northern

portion of the nonattainment area and

the airshed boundary (ridgeline of the

Pinal Mountains) generally range

between 2,000 and 4,000 feet.

Meteorology

The speed and direction of air

pollutant transport in both the Lower

Salt River Airshed (Miami area) and the

Gila River Airshed (Hayden area) are

greatly influenced by local topography.

Both airsheds contain extensive areas of

complex terrain that is responsible for

complicated wind patterns.

Hayden is located in a relatively

narrow portion of the Gila River valley,

immediately downstream from the

confluence of the Gila and San Pedro

Rivers. The Dripping Spring Mountains

are located northeast of Hayden. In

ADEQ's technical justification report,

wind patterns in Haydefi, where a

number of stationary sources are

located, are described as distinctly upvalley/down-valley. Such patterns are

typical of mountainous areas, and are

characterized by up-valley or up-slope

flows during the day and down-valley

or down-slope winds during the night.

ADEQ notes that low southeasterly

winds in the Gila River valley from

nighttime down-slope or drainage flow

can combine with stable atmospheric

conditions to cause elevated pollutant

concentrations within low lying areas.

Up-slope convection during the day

increases dispersion and flow out of the

low lying areas. Under normal daytime

conditions, surface winds become westsouthwesterly to west-northwesterly

(up-valley) in the Hayden area,

replacing nighttime down-slope winds

as the atmosphere becomes less stable.

This pattern is repeated locally

throughout much of the complex terrain

found in the southern portion of the

Hayden/Miami PMIo nonattainment

area.

Due to widespread areas of complex

terrain, a similar up-valley/down-valley

pattern is found throughout much of the

northern portion of the Hayden/Miami

PM10 nonattainment area, where Miami

is located. Miami is located along U.S.

Highway 60'in a steep canyon of the

Pinal Mountains. As described for

Hayden, Miami is similarly influenced

by up-slope/down-slope wind patterns.

Generally, the Miami area exhibits a

diurnal pattern of having a stronger,

average easterly component to nighttimeairflow with a westerly component

evident during the day.

ADEQ's technical justification report

notes that stronger regional air flow can

at times override local patterns and

overcome elevational differences, and

that, under these conditions, direction

of flow can vary. However, ADEQ notes

also that mixing, dispersion, and

dilution of emissions are increased

under these conditions, especially with

distance. Thus, localized complex

terrain windflow patterns are the

primary forces affecting dispersion from

sources within each of the Hayden and

Miami areas. We agree with ADEQ's

conclusion that the greater emissions

impacts are local, and any cross-airshed,

boundary contributions that may occur

are minimal relative to local impacts.

Locations of Emissions Sources

The topographical and meteorological

characteristics described above support

the conclusion that Hayden and Miami

lie in separate airsheds with minimal

PM1O pollutant transport between the

two. However, ADEQ also provides

information on the locations and

magnitude of permitted PMIO sources in

the two areas that lends further support

to this conclusion.

ADEQ notes that the majority of

permitted sources in the Hayden/Miami

PM10 nonattainment area are associated

with mining and smelting activities.

These sources are located primarily in

the extreme south and north of the

14425

HeinOnline -- 72 Fed. Reg. 14425 2007
14426 Federal Register/Vol. 72, No. 59/Wednesday, March 28, 2007/Rules and Regulations

Hayden/Miami nonattainment area near

the two mining towns, Hayden and

Miami. 5 Hayden area sources are

clustered primarily in lower elevation

areas in the southern portion of the

nonattainment area, south of the

Township 2 South/Township 3 South

boundary. Miami area sources are located generally north of the Township

1 North/Township 1 South line. The

central portion of the nonattainment

area, dominated by the Pinal and Mescal

Mountain ranges that divide the lower

elevation areas to the north and south,

contains no permitted stationary

sources. This buffer between the two

concentrations of emissions sources to

the south and north further minimizes

the possibility of significant PM 10

pollutant transport between the Hayden

and Miami areas.

Planning Considerations

ADEQ notes that dividing the single

PM10 nonattainment area into two areas

would facilitate air quality management

by enabling separate analyses that

reflect local air transport patterns and

the development of control strategies

and planning processes specific to each

-area. While we find that the existence of

a single PM 0 air quality planning area

does not preclude separate analyses and

development of subarea-specific control

stiategies, we do recognize that dividing

the single area into two would allow for

de-coupling of the air quality planning

processes for the Hayden and Miami

areas, thereby allowing one of the two

areas to seek redesignation and to begin

the maintenance phase of CAA planning

sooner than might otherwise be

possible.

Conclusion

Based on our review of ADEQ's

technical justification report and other

available information, we find that

ADEQ has sufficiently demonstrated

that the Miami and Hayden areas lie in

separate airsheds in which local

topographical and meteorological

factors and local emissions sources

determine ambient PM1 o conditions and

5 ADEQ estimates that, in 2004, permitted sources

in Hayden emitted 1,974 tons of PMlo or 84 percent

of total nonattainment area PM10 emissions.

Emissions for Miami area sources totaled 375 tons

or 16 percent of total nonattainment area emissions,

and about one-fifth of Hayden area emissions. As

expected in areas where local topographical and

meteorological factors are the primary determinants

of ambient air conditions and given the relative

PMie source strengths in the two areas, PM1 o

monitors in the Hayden area record higher PM1o

concentrations than those in the Miami area. For

example, whereas violations of both the 24-hour

and now-revoked annual PMlo NAAQS have been

recorded in the Hayden area (although none in

recent years), no PMme violations have ever been

recorded in the Miami area.

between which PM1o pollutant transport

is minimal. The concentration of PM10

emissions sources to the south and

north ends of the Hayden/Miami PM1o

nonattainment area adds separation

distance to the list of factors that

minimize the potential for PM10

pollutant transport between the Miami

and Hayden areas. We also find that

dividing the single area Into two would

be beneficial from a planning

perspective by allowing one of the areas

to proceed to the maintenance phase of

air quality planning under the CAA

sooner than might otherwise be

possible.6

D. What Are the Implications of EPA's

Approval of the-State's Boundary

Redesignation?

In approving ADEQ's boundary

redesignation of the Hayden/Miami

PM10 nonattainment area into two areas,

we approve ADEQ's boundary, which

roughly traces the ridgeline of the Pinal

Mountains.

The new Miami PM10 nonattainment

area encompasses all or part of the

following seven townships: TIN, R13E;

TiN, R14E; TiN, R15E; TiS, R13E

(sections 1-6); TiS, R14E (sections 1-

24); TIS, R141/2E; and TiS, R15E. The

new Hayden PM10 nonattainment area

encompasses all or part of the following

21 townships: TIS, R13E (sections 7-

36); TiS, R14E (sections 25-36); T2S,

R13E; T2S, R14E; T2S, R15E; T3S, R13E;

T3S, R14E; T3S, R15E; T3S, R16E

(except that portion in the San Carlos

Indian Reservation); T4S, R13E; T4S,

R14E; T4S, R15E; T4S, R16E; T5S, R13E;

T5S, R14E; T5S, R15E; T5S, R16E; T6S,

R13E; T6S, R14E; T6S, R15E; and T6S,

R16E.

Together, the two new PM1o

nonattainment areas cover the same

geographic area as the original Hayden/

Miami PM10 nonattainment area. Both of

the new PM10 nonattainment areas

retain the "moderate" classification

associated with the Hayden/Miami PM10

nonattainment area.

6We note that our action here today is consistent

with prior EPA rulemakings redesignating PM 0

nonattainment areas into multiple nonattainment

areas that together coyer the same geographic area

as the original nonattainment area. See, e.g., 63 FR

59722 (November 5, 1998), involving the division

of a PM10 nonattainment area in Idaho into two

areas delineated by the boundary between State

lands and the Fort Hall Indian Reservation; and 67

FR 50805 (August 6, 2002), corrected at 67 FR

59005 (September 19, 2002), involving the division

of a PM 1 nonattainment area in California into

three areas delineated by the boundaries of Inyo,

Kern and San Bernardino counties.

m. Finding of Attainment for Miami

Area and Determination Regarding

Applicability of Certain Clean Air Act

Requirements

A. How Do We Make Attainment

Determinations?

Generally, we will determine whether

an area's air quality meets the PM10

NAAQS based upon data gathered at

established state and local air

monitoring stations (SLAMS) and

national air monitoring stations (NAMS)

in the nonattainment area and entered

into EPA's Air Quality System (AQS)

database. Data entered into AQS have

been determined to meet Federal

monitoring requirements (see 40 CFR

50.6; 40 CFR part 50, appendix J; 40

CFR part 53; 40 CFR part 58, appendices

A and B) and may be used to determine

the attainment status of areas. We will

also consider air quality data from other

air monitoring stations in the

nonattainment area, such as Special

Purpose Monitors (SPM), some of which

are run by industrial sources, provided

that the stations meet the Federal

monitoring requirements for SLAMS

and that the data is publicly available. 7

All data are reviewed to determine the

area's air quality status in accordance

with our guidance'at 40 CFR part 50,

appendix K.

Attainment of the 24-hour standard is

determined by calculating the expected

number of days in a year with PM1 o

concentrations greater than 150 gg/m 3.

The 24-hour standard is attained when

the expected number of days with levels

above 150 gg/m 3 (averaged over a threeyear period) is less than or equal to one. Three consecutive years of air quality

data are necessary to show attainment of

the PM1 o NAAQS. See 40 CFR part 50,

appendix K. A complete year of air

quality data, as referred to in 40 CFR

part 50, appendix K, is composed of all

four calendar quarters with each quarter

containing data from at least 75 percent

of the scheduled sampling days.

B. What Is the Basis for EPA's

Determination that the Miami Area Is

Attaining the PMlo NAAQS?

Beginning in 1987, PM1o has been

monitored at seven different sites in the

Miami area. ADEQ operated some of

these PM10 monitoring sites and the

owner and operator of the primary

copper smelter (i.e., Phelps-Dodge

Miami, Inc. or "Phelps-Dodge"), which

is the largest single industrial source of

emissions in the area, operated others.

Different monitoring locations were

7 See EPA Memorandum, "Use of Special Purpose

Monitoring Data," from John S. Seitz, Director,

Office of Air Quality Planning and Standards,

August 22, 1997.

HeinOnline -- 72 Fed. Reg. 14426 2007
Federal Register / Vol: 72, No. 59 / Wednesday, March 28, 2007/ Rules and Regulations

selected in an effort to locate the

maximum PM1o impacts from the

smelter. Since 1991, two monitors have

remained at their current locations: the

Golf Course monitor and the Ridgeline

monitor. Both are operated by PhelpsDodge and are considered Special

Purpose Monitors (SPMs). ADEQ ended

PM10 monitoring at its Nolan Ranch site

(also known as "Miami South" or

"Jones Ranch") in 1994 and no longer

operates any PM1o monitor in the Miami

area. No violations of the PM10 NAAQS

have been m6nitored at any of the seven

monitoring sites in the Miami area since

monitoring began in 1987.

The PMo data collected by Phelps-

-Dodge at the two SPMs (i.e., the Golf.

Course and Ridgeline sites) are not

normally certified by ADEQ and entered

into AQS, but to provide for this

attainment finding, ADEQ worked with

Phelps-Dodge to certify PM 0

monitoring data collected over the past

several years and to enter the certified

data into AQS. Table 1 provides a

summary of the data collected at the

Golf Course and Ridgeline sites during

the 2003-2005 period.

Phelps-Dodge collected the PMlo data

shown in Table 1 below using GrasebyAnderson Dichotomous samplers,

devices designated by EPA as a manual

reference method sampler. The samplers

operated on an approved operating

schedule of once every six days and the

data sets meet EPA requirements for 75

percent data capture as discussed in 40

CFR 50, appendix K. ADEQ has

reviewed the operation and

maintenance records for these monitors

and has certified that the data collected

by Phelps-Dodge meets EPA's quality

assurance requirements.

TABLE 1.-SUMMARY OF 24 HOUR AND ANNUAL PMlo CONCENTRATIONS (gG/M 3 ) FOR MIAMI, 2003-2005

PMo Concentrations

2003 .........................................................

2004 .........................................................

2005 .........................

Niote: Data for the annual-average are

included in this table for informational

purposes only because the annual-average

PM10 standard has been revoked. The former

annual-average PM10 standard was attained

when the annual.arithmetic mean PM 10

concentration over a three-year period is

equal to or less than 50 gg/m 3.We note that

the Miami area would have been found to

attain the annual standard as well as the 24-

hour standard had the former not been

revoked.

As noted above, the 24-hour PM5 o

standard is attained when the expected

number of days with levels above 150

gg/m 3 (averaged over a three-year

period) is less than or equal to one.

Based on the data summarized in table

1, above, we find no exceedances of the

24-hour PM1o standard for the 2003 to

2005 period and thus the expected

number of days with levels above 150

jIg/m3 (averaged over that three-year

period) is zero. As such, we find that

Miami is attaining the 24-hour PM1 0

NAAQS.

C. What Are the Applicable Planning

Requirements for the Miami Area as a

Result of EPA's Attainment

Determination?

The air quality planning requirements

for moderate PM10 nonattainment areas,

such as the Miami PM1o nonattainment

area, are set out in part D, subparts 1

and 4 of title I of the Act. We have

issued guidanc: in a General Preamble 8

8 "General Preamble for the Implementation of

Title I of the Clean Air Act Amendments of 1990"

(57 FR 13498, April 16, 1992, as supplemented 57

FR 18070, April 28, 1992).

describing how we will review SIPs and

SIP revisions submitted under title I of

the Act, including those containing

moderate PM10 nonattainment area SIP

provisions.

In some designated nonattainment

areas, monitored data demonstrates that

the NAAQS has already been achieved.

Based on its interpretation of the Act,

EPA has determined that certain

requirements of part D, subparts 1 and

2 (of title I) of the Act do not apply and i

therefore do not require certain

submissions for an area that has attained

the NAAQ. These include reasonable

further progress (RFP) requirements,

attainment demonstrations and

contingency measures, because these

provisions have the purpose of helping.

achieve attainment of the NAAQS.

EPA's Clean Data Policy is the subject

of two memoranda setting .forth our

interpretation of the provisions of the

Act as they apply to areas that have

attained the relevant NAAQS. EPA also

finalized the statutory interpretation set

forth in the policy in a final rule, 40

CFR 51.918, as part of its "Final Rule to

Implement the 8-hour Ozone National

Ambient Air Quality Standard-Phase

2" (Phase 2 Final Rule). See discussion

in the preamble to the rule at 70 FR

71645-71646 (November 29, 2005). EPA

believes that the legal bases set forth in

detail in our Phase 2 Final Rule; our

May 10, -1995 memorandum from John

S. Seitz, entitled "Reasonable Further

Progress, Attainment Demonstration,

and Related Requirements for Ozone

Nonattainment Areas Meeting the

3 year annual

average

Ozone National Ambient Air Quality

Standard" (Seitz memo); and our

December 14, 2004 memorandum from

Stephen D. Page entitled "Clean Data

Policy for the Fine Particle National

Ambient Air Quality 'Standards" (Page

memo) are equally pertinent to the

interpretation of provisions of subparts

1 and 4 applicable to PM10 . EPA's

interpretation of how the provisions of

thd Act apply to areas with "clean data"

is not logically limited to ozone and

PM2.

5, because the rationale is not

dependent upon the type of pollutant.

Our interpretation that an area that is

attaining the standard is relieved of

obligations to demonstrate RFP and to

provide an attainment demonstration

and contingency measures pursuant to

part D of the CAA, pertains whether the

standard is PM 10, ozone, or PM2.5.

The reasons for relieving an area that

has attained the relevant standard of

certain part D, subparts 1 and 2

obligations, applies equally to part D,

subpart 4, which contains specific

attainment demonstration and RFP

provisions for PM1o nonattainment

areas. As we have explained in the

Phase 2 Final Rule and our ozone and

PM2.

5 clean data memoranda, EPA

believes it is reasonable to interpret

provisions regarding RFP and

attainment demonstrations, along with

related requirements, so as not to

require SEP submissions if an area

subject to those requirements is already

attaining the NAAQS (i.e., attainment of

the NAAQS is demonstrated with three

consecutive years of complete, quality14427

HeinOnline -- 72 Fed. Reg. 14427 2007
1-4428 Federal Register / Vol;. 72 , No. 59 / Wednesday, March 28, 2007 / Rules and Regulations

assured air quality monitoring data).,

Three U.S. Circuit Courts of Appeals

have upheld EPA rulemakings applying

its interpretatidn of subparts 1 and 2

with respect to ozone. Sierra Club v.

EPA, 99 F.3d 1551 (10th Cir. 1996);

Sierra Club v. EPA, 375 F.3d 537 (7th

Cir. 2004); Our Children's Earth

Foundation v. EPA, No. 04-73032 (9th

Cir. June 28, 2005) (me morandum

opinion). It has been EPA's longstanding

-interpretation 'that the general

provisions of part D, subpart I of the

Act (sections 171 and 172) do not

require the submission of SIP revisions

concerning RFP for areas already

attaining the ozone NAAQS. In the

General Preamble we stated:

[R]equirements for RFP will not apply in

evaluating a request for redesignation to

attainment since, at a minimum, the air

quality data for the area must show that the area has already attained. Showing that the

State will make RFP towards attainment will,

therefore, have no meaning at that point. 57

FR at 13564.

EPA believes the same reasoning

applies to the PM1o provisions of part D,

subpart 4.

With respect to RFP, section 171(1)

states that, for purposes of part D of title

I, RFP "means such annual incremental

reductions in emissions of the relevant

air pollutant as are required by this part

or may reasonably be required by the

Administrator for the purpose of

ensuring attainment of the applicable

NAAQS by the applicable date." Thus,

whether dealing with the general RFP

requirement of section 172(c)(2), the

ozone-specific RFP requirements of

sections 182(b) and (c), or the specific

RFP requirements for PMo areas of part

D, subpart 4, section 189(c)(1), the

stated purpose of RFP is to ensure

attainment by the applicable attainment

date. Section 189(c)(1) states that:

Plan revisions demonstrating attainment

submitted to the Administrator for approval

under this subpart shall contain quantitative milestones which are to be achieved every 3

years until the area is redesignated

attainment and which demonstrate

reasonable further progress, as defined in

section 7501(1) of this title, toward

attainment by the applicable date.

Although this section states'that

revisions shall contain milestones

which are to be achieved until the area

is redesignated to attainment, such

milestones are designed to show

reasonable further progress "toward

attainment by the applicable attainment

date", as defined by section 171. Thus,

it is clear that once the area has attained

the standard, no further milestones are

necessary or meaningful. This

interpretation is supported by language

in section 189(c)(3), which mandates

that a state that fails to achieve a

milestone must submit a plan that

assures that the state will achieve the

next milestone or attain the*NAAQS if

there is no next milestone. Section

189(c)(3) assumes that the requirement

to submit and achieve milestones does

not continue after attainment of the

NAAQS.

In the General Preamble, we noted

with respect to section 189(c) that "the.

purpose of the milestone requirement is

to 'provide for emission reductions

adequate to achieve the standards by the

applicable attainment date' (H.R. Rep.

No. 490 101st Cong., 2d Sess. 267

(1990))." 57 FR 13539 (April 16, 1992).

If an area has in fact attained the

standard, the stated purpose of the RFP

requirement will have already been

fulfilled. 9 EPA took this position with

respect to the general RFP requirement

of section 172(c)(2) in the April 16, 1992

General Preamble and also in the May

10, 1995 memorandum with respect to

the requirements of sections 182(b) and

Cc). We are extending that interpretation

to the specific provisions of part D,

subpart 4. In the General Preamble, we

stated, in the context of a discussion of

the requirements applicable to the

evaluation of requests to redesignate

nonattainment areas to-attainment, that

the "requirements for RFP will not

apply in evaluating a request for

redesignation to attainment since, at a minimum, the air quality data for the

area must show that the area has already

attained. Showing that the State will

make RFP towards attainment will,

therefore, have no meaning at that

point." (57 FR 13564). See also our

September 4, 1992 memorandum ftom

John Calcagni, entitled "Procedures for

Processing Requests to Redesignate

Areas to Attainment" (Calcagni memo),

p. 6 .

Similarly, the requirements of section

189(c)(2) with respect to milestones no

"Thus, We believe that it is a distinction without a difference that section 189(c)(1) speaks of the RFP

requirement as one to be achieved until an area is

"redesignated attainment", as opposed to section

172(c)(2), which is silent on the period to which the

requirement pertains, or the ozone nonattainment area RFP requirements in sections 182(b)(1) or 182

(c)(2), which refer to the RFP requirements as

applying until the "attainment date," since section

189(c)(1) defines RFP by reference to section .171(1)

of the Act. Reference to section 171(1) clarifies that,

as with the general RFP requirements in section

172(c)(2) and the ozone-specific requirements of

section 182(b)(1) and 182(c)(2), the PM-specific

requirements may only be required "for the purpose

of ensuring attainment of the applicable national

ambient air quality standard by the applicable

date." 42 U.S.C. section 7501(1). As discussed in

the text of this rulemaking, EPA interprets the RFP

requirements, in light of the definition of RFP in

section 171(1); and incorporated in section

189(c)(1), to be a requirement that no longer applies

once the standard has been attained.

longer apply so long as an area has

attained the standard. Section 189(c)(2)

provides in relevant part that:

Not later than 90 days after the date on which a milestone applicable to the area occurs, each State in which all or part of such area is located shall submit to the

Administrator a demonstration * * * that the

milestone has been met.

Where the area has attained the

standard and there are no further

milestones, there is no further

requirement to make a submission

showing that such milestones have been

met. As noted above, this is consistent

with the position that EPA took with

respect to the general RFP requirement

of section 172(c)(2) in the April 16, 1992

General Preamble and also in the May

10, 1995 Seitz memorandum with

respect to the requirements of section

182(b) and (c). In the May 10, 1995 Seitz

memorandum, EPA also noted that

section 182(g), the milestone

requirement of Subpart 2, which is

analogous to provisions in section

189(c), is suspended upon a

determination that an area has- attained.

The memorandum, also citing

additional provisions related to

attainment demonstration and RFP

requirements, stated:

Inasmuch as each of these requirements is

linked with the attainment demonstration or RFP requirements of section 182(b)(1) or

182(c)(2), if an area is not subject to the

requirement to submit the underlying

attainment demonstration or RFP plan, it

need not submit the related SIP submission

either.

1995 Seitz memorandum at 5.

With respect to the attainment

demonstration requirements of section

189(a)(1)(B), an analogous rationale

leads to the same result. Section

189(a)(1)(B) requires that the plan

provide for "a demonstration (including

air quality modeling) that the [SIP] will

provide for attainment by the applicable

attainment date * * *." As With the

RP requirements, if an area is already

monitoring attainment of the standard,

EPA believes there is no need for an

area to make a further submission

containing additional measures to

achieve attainment. This is also

consistent with the interpretation of the

section 172(c) requirements provided by

EPA in the General Preamble, the Page

memo, and the section 182(b) and (c)

requirements set forth in the Seitz

memo. As EPA stated in the General

Preamble, no other measures to provide

for attainment would be needed by areas

seeking redesignation to attainment

since "attainment will have been

reached." (57 FR at 13564).

Other SIP submission requirements

are linked with these attainment

HeinOnline -- 72 Fed. Reg. 14428 2007
Fed&iral Register / Vol. '72, No. 59 / Wednesday, March 28, 2007 / Rules and Regulations

demonstration and RFP requirements,

and similar reasoning applies to them.

These requirements include the

contingency measure requirements of

sections 172(c)(9) and 182(c)(9). We

have interpreted the contingency

measure requirements of sections

172(c)(9) and 182(c)(9) as no longer

applying when an area has attained the

standard because those "contingency

measures are directed at ensuring RFP

and attainment by the applicable date."

(57 FR at 13564); Seitz memo, pp. 5-6.

Both sections 172(c)(1) and

189(a)(1)(C) require "provisions to

assure that reasonably available control

measures" (i.e., RACM) are •

implemented in a nonattainment area.

The General Preamble, 57 FR at 13560

(April 16, 1992), states that EPA

interprets section 172(c)(1) so that

RACM requirements are a "component"

of an area's attainment demonstration.

Thus, for the same reason the

attainment demonstration no longer

applies by its own terms, the

requirement for RACM no longer

applies. EPA has consistently

interpreted this provision to require

only implementation of potential RACM

measures that could contribute to

reasonable further progress or to

attainment. General Preamble, 57 FR at

13498. Thus, where an area is already

attaining the standard, no additional

RACM measures are required.10 EPA is

interpreting section 189(a)(1)(C)

consistent with its interpretation of

section 172(c)(1).

Here, as in both our Phase 2 Final

Rule and ozone and PM2.

5 clean data

memoranda, we emphasize that the

suspension of a requirement to submit

SIP revisions concerning these RFP,

attainment demonstration, RACM, and

other related requirements exists only

for as long as a nonattainment area

continues to monitor attainment of the

standard. If such an area experiences a

violation of the NAAQS, the basis for

the requirements being suspended

would no longer exist. Therefore, the

area would again be subject to a

requirement to submit the pertinent SIP

revision or revisions and would need to

address those requirements. Thus, a

determination that an area need not

submit one of the SIP submittals

amounts to no more than a suspension

of the requirements for so long as the

area continues to attain the standard.

10 The EPA's interpretation that the statute only

requires implementation of RACM measures that

would advance attainment was upheld by the

United States Court of Appeals for the Fifth Circuit

(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir.

2002), and by the United States Court of Appeals

for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d

155,162-163 (DC Cir. 2002)).

However, once EPA ultimately

redesignates the area to attainment, the

area will be entirely relieved of these

requirements to the extent the

maintenance plan for the area does not

rely on them.*

Therefore, we believe that, for the

reasons set forth here and established in

our prior "clean data" memoranda and

rulemakings, a PM 1 nonattainment area

that has "clean data," should be

relieved of the part D, subpart 4

obligations to provide an attainment

demonstration pursuant to section

189(a)(1)(B), the RACM provisions of

section 189(a)(1)(C), and the RFP

provisions established by section

189(c)(1) of the Act, as well as the

aforementioned attainment

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act.1

Should EPA at some future time

determine that an area that had clean

data, but which has not yet been

redesignated as attainment for a

NAAQS, has violated the relevant

standard, the area'would again be

required to submit the pertinent

requirements under the SIP for the area.

Attainment determinations under the

policy do not shield an area from other

required actions, such as provisions to

address pollution trairsport. . As set forth above, EPA finds that

because the Miami area is attaining the

PMo NAAQS, the requirement of an

attainment demonstration, reasonable

further progress, reasonably available

control measures and contingency

measures no longer applies for so long

as the area continues to monitor..

attainment of the PMlo NAAQS. 12

This determination is contingent on

the existence of monitoring data

showing continued attainment of the

PM10 NAAQS in the Miami area.

Normally, we would simply rely on the

11 In some prior rulemakings involving the Clean

Data Policy and PMio, EPA has applied criteria in

addition to that of attainment of the standard. See,

e.g., 67 FR 43020 (June 26, 2002). EPA does not

believe that those additional criteria are required by

statute or afe necessary for application of the policy

for PM,, areas, and does not employ them in

applying the policy to ozone and PM 2.5 areas. EPA

intends to make its application of the policy

consistent for ozone, PM1o. and PM2.5. and does not

intend to require an area to meet additional criteria

for PMo.

12 We note that our application of the Clean Data

Policy to the Miami PM,, nonattainment area is

consistent with actions we have taken for other

PMo nonattainment areas that were also attaining

the standard. See 71 FR 6352 (February 8,

2006)(Ajo, Arizona area); 71 FR 13021 (March 14,

2006)(Yuma, Arizona area); 71 FR 40023 (July 14,

2006)(Weirton, West Virginia area); 71 FR 44920

(August 8, 2006)(Rillito, Arizona area); and 71 FR

63642 (October 30, 2006) (San Joaquin Valley,

California area).

continuation of a State's or local air

district's monitoring network to provide

the data necessary for the public and

EPA to verify continued attainment

because a State or local air district

administering such a network must,

under applicable Federal regulations,

use reference methods, meet quality

assurance requirements, and enter data

periodically into AQS.

In the Miami area, however, the only

monitors collecting PM10 data are

Special Purpose Monitors (SPMs) run by

Phelps-Dodge. Historically, these data

have not been submitted to the State for

certification and subsequent entry into

EPA's Air Quality System (AQS)

database. Thus, we have requested that

ADEQ provide us with evidence that

ADEQ and Phelps-Dodge ensure that

PM1o data continues to be collected at

Phelps-Dodge's two monitoring sites in

the Miami area in a manner that meets'

Federal monitoring requirements for

state and local air monitoring stations

(SLAMS) and that ADEQ commits to

entering the data into AQS on a periodic

basis. ADEQ has submitted sufficient

evidence supporting such commitments

in the form of two letters: a letter dated

May 15, 2006 from Alan H. Binegar,

Smelter Manager, Phelps-Dodge Miami

Inc. to Nancy Wrona, Director, Air

Quality Division, ADEQ, and a letter

dated January 19, 2007 from Nancy C.

Wrona, Director, Air Quality Division,

ADEQ to Deborah Jordan, Director, Air

Division, EPA-Region IX.

Specifically, in its May 15, 2006

letter, Phelps-Dodge agrees to submit

calibration records and supporting

documentation for its PM10 monitors to

ADEQ with future quarterly PM1o

reports. In its January 19, 2007 letter,

ADEQ commits to begin entering data

collected during 2006 by March 1, 2007,

to complete the entry of 2006 data into

AQS by the end of June 2007, and to

continue entry of 2007 and subsequent

data following applicable EPA quality

assurance procedures and validation.

We interpret ADEQ's commitment to

mean that by the end of 2007, ADEQ

will be entering Miami PM, 0 monitoring

data collected by Phelps-Dodge on the

same quarterly schedule as required for

SLAMS.

. If Phelps-Dodge or ADEQ fails to

fulfill the monitoring-related •

commitments set forth in the letters

dated May 15, 2006 and January 19,

2007, then we can no longer be assured

of -the continued attainment of the PM1o

NAAQS in the Miami area, and a failure

to provide current, valid, publicly

available PM 0 data will have the same

consequence as a measured violation of

the PMto NAAQS. In either event, the

rationale for determining that the CAA

14429

HeinOnline -- 72 Fed. Reg. 14429 2007
14430 Federal Register/Vol. 72, No. 59/Wednesday, March 28, 2007/Riles and .Regulations

requirements discussed above no longer

apply in the Miami area will no longer

exist, and as a result, we will take action

to withdraw our finding that the Miami

area is attaining the standard and

withdraw our related determination

with respect to certain CAA

requirements discussed above. Then,

the State of Arizona would again be

required to submit the pertinent CAA

requirements for this nonattainment

area.

IV. Corrections to the Arizona PMo

Table in 40 CFR Part 81

In today's notice, we are also

correcting two errors in the table found

in 40 CFR part 81 (specifically, 40 CFR

81.303) listing the area designations

within the State of Arizona for the PM10

NAAQS. CAA section 110(k)(6)

provides EPA with authority to correct

errors in rulemakings involving, among

other things, area designations and

classifications.

First, we are fixing a typographical

error in the listing for Payson in the

PMo table. This error was introduced

into the table in a final rule

redesignating the Payson area to

attainment. See 67 FR 43013 (June 26,

2002). In the June 2002 final rule, we

inadvertently listed one of the'

townships that comprise the Payson air

quality planning area as "TOIN, * * "

while intending "TiON, * * *." See 67

FR 43013, at 43019. We are correcting

the listing in this notice.

Second, we are correcting the

erroneous deletion of the designation for

"rest of state" in the Arizona PM 10 table

in 40 CFR 81.303. This error occurred in

two stages. First, in a 1996 final rule, we

inadvertently included "rest of state"

under the listing for Mohave County.

See 61 FR 21372, at 21378 (May 10,

1996). Then, in a final rule published on

February 15, 2002, we inadvertently

deleted the "rest of state" listing

entirely. See 67 FR 7082, at 7085

(February 15, 2002). In this notice, we

are correcting this error by restoring the

"rest of state" designation

("unclassifiable") as a separate listing in

the Arizona PM1 o table.

V. EPA's Final Action

Under section 107(d)(3)(D) of the

Clean Air Act, EPA is approving the

State of Arizona's redesignation of the

Hayden/Miami PM10 nonattainment

area into two separate but adjoining

PM10 nonattainment areas (Hayden and

Miami) as submitted on June 20, 2006

and making the changes to the table in

40 CFR part 81 that shows Arizona PM10

area designations accordingly. EPA is

approving this boundary redesignation

based on topographical, meteorological,

and other air quality-related factors that

demonstrate that Hayden and Miami

areas lie in different airsheds With little

or no cross-airshed transport of PM10 .

Together, the two new PM1o

nonattainment areas cover the same

geographic area as the original Hayden/

Miami PM10 nonattainment area and

retain a "moderate" classification with

respect to the PM1o NAAQS. The

approved boundary between the two

new areas roughly traces the ridgeline of

the Pinal Mountains.

We also find that the Miami PM10

nonattainment area is attaining the PM10

NAAQS. Our finding of attainment is

based on quality-assured data that meet

the requirements of 40 CFR part 50,

appendix K for the period 2003-2005.13

EPA also finds that, because the

Miami area is attaining the NAAQS, the

following CAA requirements are not

applicable for so long as the Miami area

continues to attain the PMo standard:

the part D, subpart 4 obligations to

provide an attainment demonstration

pursuant to section 189(a)(1)(B), the

RACM provisions of 189(a)(1)(C), the

RFP provisions established by section

189(c)(1), and the attainment

demonstration, RACM, RFP and

contingency measure provisions of part

D, subpart 1 contained in section 172 of

the Act. Because our determination with

respect to the above CAA requirements

relies on the existence of current, valid,

publicly-available monitoring data, we

are making our determination

contingent upon fulfillment of

commitments made by Phelps-Dodge

and ADEQ in letters dated May 15, 2006

and January 19, 2007 to submit such

data from the two current PM10

monitoring sites in the Miami area to

EPA's AQS. If the commitments made

by Phelps-Dodge and ADEQ are not

fulfilled or if the data shows a violation

of the standard, then EPA will act to

withdraw the attainment finding and

withdraw the related determination

with respect to the CAA requirements

listed above.

13 The two actions we are taking today, the

boundary redesignation and the finding of

attainment, should be distinguished from an action

to redesignate an area from "nonattainment" to

"attainment" under CAA section 107(d)(3). There

are a number of prerequisite conditions that must

be met before we can approve a State's request to

change (i.e., "redesignate") the air quality planning

status of an area from "nonattainment" to

"attainment," including, among other conditions,

approval of a maintenance plan meeting the

requirements of section 175A of the CAA. See

section 107(d)(3)(E of the Act. Thus, the

classification and designation status in 40 CFR part

81 will remain moderate nonattainment for the

Miami PMo area until such time as the State of

Arizona meets the CAA requirements under section

107(d)(3)(E) for redesignation of the Miami area to

attainment.

. Lastly, under CAA section 110(k)(6),

we correct two errors that were

introduced into the "Arizona-PMo"

table in 40 CFR 81.303 in previous

rulemakings. First, we correct a

typographical error in the listings of

townships that define the Payson air

quality planning area. Second, we

correct the erroneous deletion of the

designation for "rest of state" by

restoring the "rest of state" designation

("unclassifiable") as a separate listing in

the Arizona PMo table.

We are publishing this rule without

prior proposal because the Agency

views this as a noncontroversial action

and anticipates no adverse comments.

However, in the proposed rules section

of this Federal Register publication,

EPA is publishing a separate document

that will serve as the proposal should

adverse comments be filed. This action

will be effective'May 29, 2007, without

further notice unless the EPA receives

relevant adverse comments by April 27,

2007.

If we receive such comments, then we

will publish a document withdrawing

the final rule and informing the public

that the rule will not take effect. All

public comments received will then be

addressed in a subsequent final rule

based on the proposed rule. We will not

institute a second comment period.

Parties interested in commenting should

do so at this time. If no such comments

are received, the public is advised that

this rule will be effective on May 29,

2007 and no further action will be taken

on the proposed rule.

VI. Statutory and Executive Order

Reviews

Under-Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This action merely

redesignates a boundary of an air quality

planing area, makes a determination

based on air quality data, and suspends

certain requirements that otherwise

would apply and does not impose any

additional requirements. Accordingly,

the Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

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

rule does not impose any additional

enforceable duty, it does not contain

any unfunded mandate or significantly

or uniquely affect small governments, as

HeinOnline -- 72 Fed. Reg. 14430 2007
Federal Register / Vol. 72, No. 59/Wednesday, March 28, 2007/Rules and Regulations

described in the Unfunded Mandates

Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 97249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

redesignates a boundary of an air quality

planning area, makes a determination

based on air quality data, and suspends

certain requirements that otherwise

would apply and does not alter the

relationship or the distribution of power

and responsibilities established in the

CAA. This rule also is not subject to

Executive Order 13045 "Protection of

Children from Environmental Health

Risks and Safety Risks" (62 FR 19885,

April 23, 1997), because it is not

economically significant.

The requirements of section 12(d) of

the National Technology Transfer and

Advancement Act of 1995 115 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy-of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by May 29, 2007. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may. not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas, Intergovernmental

relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: March 20, 2007.

Wayne Nastri,

Regional Administrator, Region 9.

a Part 81, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 81-[AMENDED]

m 1. The authority citation for part 81

continues to read as follows:

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

Subpart C-[Amended]

m 2. In § 81.303, the table entitled

"Arizona-PM10 " is amended by

revising the entries for Pinal and Gila

Counties and-Gila County and by adding

an entry for "rest of state" to read as

follows:

§ 81.303 Arizona.

ARIZONA-PM1 o

Designation Classification

Designated Area

Date Type Date Type

Pinal and Gila Counties:

Hayden planning area ............................................................................. 11/15/90 Nonattainment ... 11/15/90 Moderate.

TIS, R13E (sections 7-36); TiS, R14E (sections 25-36);T2S, R13E;

T2S, R14E; T2S, R15E; T3S,. R13E; T3S, RI4E; T3S, R15E; T3S,

R16E (except that portion in the San Carlos Apache Indian Reservation); T4S, R13E; T4S, R14E; T4S, R15E; T4S, R16E; T5S, R13E;

T5S, R14E: T5S, R15E; T5S, R16E; T6S, R13E; T6S; R14E; T6S,

R15E; and T6S, R16E.

Miami planning area ................................................................................ 11/15/90 Nonattainment ... 11/15/90 Moderate.

TIN, R13E; TIN, R14E; TIN, R15E; TIS, R13E (sections 1-6); TIS,

R14E (sections 124); TIS, R141/2E; and TIS, R15E.

Gila County (part):

Payson: T10N, sections 1-3 . ................................................................. 08/26/02 Attainment ..........

10-15, 22-27, and 34-36 of R9E; T11N, sections 1-3, 10-15, 22-27,

and 34-36 of R9E; T10-11N, R10E; T10N, sections 4-9, 16-21,

and 28-33 of Rl1E; T11N, sections 4-9, 16-21, and 28-33 of

R11E.

Rest of State ............................................................................................ 11/15/90 Unclassifiable.

14431

HeinOnline -- 72 Fed. Reg. 14431 2007